Bogus DMCA Takedown Targeting Indian Copyright Blog Demonstrates The Problems Of Notice And Takedown

Copyright

from the censorship-in-action dept

If you’re unfamiliar with it, the SpicyIP blog is a wonderful blog covering issues related to copyright and patents in India. We’ve linked to it a bunch over the past decade. And now it’s going through something of a rite of passage for sites on the internet: the absolutely bogus takedown notice. In this case, it was informed by Google that a certain page on the site was to be de-indexed following a DMCA notice claiming that SpicyIP was infringing on the copyrights of Saregama, a large Indian music label. The DMCA notice, helpfully found at the Lumen Database, shows that the organization had sent a list of 99 URLs that it claimed infringed on:

The sound recording or other musical works /song titled APNI TO JAISE TAISE sung by KISHORE KUMAR written by PRAKASH MEHRA and music composed by KALYANJI ANANDJI being made available for streaming and/or download without license/permission from Saregama India Ltd.

Out of those 99 URLs, SpicyIP’s, was definitely one. Except that SpicyIP URL was clearly not at all infringing. It was, instead (as you might expect) an analysis of a copyright dispute over the Bollywood song in question. So, at least they identified the right “song” but nothing in a blog post discussing a legal copyright dispute magically makes that blog post infringing itself. SpicyIP rightly notes just how problematic this notice-and-takedown process can be in leading to outright censorship:

Even if SaReGaM ?correctly? identified 98 infringing links, is the takedown of a lawful post a legitimate casualty to the process? What if the post was a criticism of SaReGaMa?s or Google?s policies, or critical of the legal process?

The present instance is the result of the US Digital Millennium Copyright Act, (S. 512) which implements a ?notice and takedown? regime for intermediaries to remove copyrighted content. The provision rests intermediary safe harbour for publishing putatively infringing content upon the expeditious removal of notified links, and subject to examining any counter-notice, explained in more detail here.

The Copyright Act (S. 52) and Copyright Rules (R. 75) in India, incidentally, have a similar procedure, which creates a ?notice and takedown? regime for intermediaries which host ?incidental or transient? links to copyrighted content, which includes a counter-notice mechanism with the right to reinstate the content in the absence of a court order within 21 days. Unfortunately, it is unclear what intermediaries fall within the scope of this procedure, and in the absence of such clarity, the Delhi High Court has created a separate regime for certain intermediaries in Myspace v Super Cassettes. This judicially created regime is rather vague and does not include even the minimal procedural safeguards available under the Copyright Rules.

Regardless of the form of notice-and-takedown, it is apparent that placing an obligation to police copyright infringement on intermediaries create perverse economic incentives on private parties like Google or YouTube to over-comply and take down legal content. This is not solely attributable to the intermediaries? practices themselves, but the policy and legal decisions which are created and are supposed to to strike a balance between access to knowledge and copyright protection in the digital age.

SpicyIP admits that “it’s funny” that such a bogus takedown would target a copyright law blog, with people who can easily respond, but the same is not true for many other on the receiving end of such a takedown notice. As SpicyIP notes:

Yet, had it happened to a non-lawyer, or even someone who had ceased to take interest in their old blog, as it often does, it would result in the permanent removal of public information from an index which serves as the gateway to the internet, due to the ?mistakes? of private parties whose interests do not coincide with public access. What does this mean for the future of access to knowledge?

The blog further points out that this problem is likely to get worse, not better. We’ve already been talking about how Article 13 could soon require automated takedowns and content monitoring, India is exploring a very similar law to put more liability on the platforms to not allow any infringement at all. In such cases, the problem becomes much, much worse, and some content may never be allowed to be uploaded at all, even if it’s perfectly legal.

Filed Under: copyright, dmca, notice and takedown, spicyip, takedown
Companies: saregam, spicyip

Axel Voss Says Maybe YouTube Shouldn't Exist

Copyright

from the say-what-now? dept

I’m beginning to think that Axel Voss, the Member of the European Parliament in charge of ramming through the EU Copyright Directive, doesn’t have much of a clue about how either copyright or the internet works. Last week, we pointed out that he was making provably false statements about Article 13, and wondered why he’d be doing that. But the more he talks, the more I’m wondering if he simply doesn’t understand the basics of either copyright law or the internet. The latest comes in some quotes he gave in a great article by DW.com, which correctly highlights how Article 13 is going to lead to widespread censorship. Voss tries to defend it with some truly bizarre claims:

?We are just concentrating on platforms that are infringing on copyrighted works like YouTube. Not for dating platforms or merchandising or local social platforms. Only 1.5% of internet platforms will be affected.?

Only 1.5% of platforms will be affected? I think we’re going to need to slap a giant “citation needed” on that one. According to the released text, the law will apply to the following:

?online content sharing service provider? means a provider of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of copyright protected works or other protected subject-matter uploaded by its users which it organises and promotes for profit-making purposes. Providers of services such as not-for profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms, electronic communication service providers as defined in Directive 2018/1972 establishing the European Communications Code, online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive.

The special carve-outs for “non-profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms” came after Wikipedia and Github pointed out how impossible Article 13 would make their future existence. Either way, the giant misunderstanding here, is that basically everything is covered by copyright. So, any site that enables user-generated content, and is a for profit entity, will “store and give access to a large amount of copyright protected works or other protected subject-matter uploaded by its users which it organizes and promotes for profit-making purposes.” That’s called the internet. The law clearly impacts way more than 1.5% of internet platforms.

Even more to the point: even if Voss and his allies can scrape together some nonsense by listing out all sorts of other websites that wouldn’t be impacted by this, the number of websites is the wrong metric. The real question is about how much of the internet that people interact with on a daily basis would be impacted: and there the answer is a ton of it. There are a whole bunch of rankings of the “top websites” out there, but skimming through a bunch of them you see that a huge number of the most popular websites would be impacted by this: Facebook, Google, Twitter, Instagram, Reddit, YouTube, Pinterest, Linkedin, Twitch, Imgur, Pornhub, WordPress and more. If you add in some of the top Chinese sites, it gets even bigger.

But here’s the bigger issue: Voss then seems to suggest none of these sites should even exist. No, really:

?We all have legal obligations to fulfill. If you have a massive platform like YouTube you will have to use a technological solution. Everyone has these obligations. They have created a business model with the property of other people ? on copyright protected works. If the intention of the platform is to give people access to copyright protected works then we have to think about whether this kind of business should exist. The new legislation is improving the situation for the European creators industry.?

Say what now? Not exist at all? This whole thing seems to be based on the false premise — often pushed by the RIAA and MPAA — that YouTube was solely created to allow users to upload others’ professional content. That’s not accurate at all. The entire basis for YouTube was to allow people to express themselves. And they do. The top channels on YouTube are not people uploading other people’s infringing content, but independent creators creating their own amazing new content that wouldn’t have been possible in an age before YouTube.

So how is it that Axel Voss is considered an authority on this? He doesn’t seem to understand that every new work is covered by copyright, so any website that hosts user-uploaded content — audio, video, text, images, etc. — is subject to this law. He also doesn’t seem to understand that none of these sites are built with the intent of having people upload infringing material, it’s just that some segment of the population will do that. Because that’s part of how the internet works. But the good from all this — the ability for anyone to create and share their content, as well as the vast ability of people to find and discover new and amazing content — greatly outweighs the fact that it might change the business model for a few legacy companies.

Voss’ final line is a real kicker. “Improving the situation for the European creators industry.” Uh, no it’s not. More people are creating than ever before, and they’re using the tools that Article 13 will punish to do so. When people have fewer places to share their content or to make money from their content, that’s not helping creators or the “creators industry.” Sure, it might help a very small number of old gatekeeper companies — record labels, book publishers, movie studios — be in a position to demand more money from internet companies, but thinking that those old gatekeepers represent the “creators industry” is ludicrously out of touch.

Still the fact that Voss is now admitting that the real goal behind Article 13 is to move us to a world where “maybe” YouTube “shouldn’t exist,” perhaps he can apologize for his comments last week in which he insisted that all he really wanted “is what already exists” and which “online platforms have already put into practice.” Yes, just last week, he was saying that the rules “will not go beyond what is currently in place and things will largely remain as they are now.” And this week he’s saying, well, actually maybe “this kind of company should not exist.”

Axel Voss seems willing to say anything, no matter how contradictory, how obviously incorrect, to push through Article 13.

Filed Under: article 13, axel voss, copyright, eu, eu copyright directive, internet platforms, user generated content
Companies: youtube

German Government Confirms That Article 13 Does Mean Upload Filters, Destroying Claims To The Contrary Once And For All

Copyright

from the now-delete-it-from-the-text dept

Techdirt has just written about an important intervention by the UN Special Rapporteur on freedom of expression in the debate about Article 13 of the proposed EU Copyright Directive. David Kaye said that most Internet sites “would face legal pressure to install and maintain expensive content filtering infrastructure to comply with the proposed Directive.” Despite the evident expertise of Kaye in this area, some may try to dismiss this clear condemnation of Article 13 as the UN interfering in a legislative process that really only concerns the Member States of the EU, and no one else. That makes the following official reply by Christian Lange, Parliamentary State Secretary to the German Federal Minister of Justice and Consumer Protection, to a question submitted by a member of Germany’s national parliament, rather significant:

In the [German] federal government’s view it appears likely that algorithmic measures will have to be taken in connection with large volumes of data for practical reasons alone.

That translation of the original German comes from Florian Mueller, who has written a blog post (in English) about the political background and significance of this statement. He notes that it appears in the well-respected German newspaper Frankfurter Allgemeine Zeitung, “that used to spread the no-upload-filter propaganda [but] now considers it ridiculous to deny that Article 13 involves upload filters.” So the appearance of this confirmation that Article 13 will indeed require “algorithmic measures” — AKA upload filters — in a serious German newspaper represents an important moment in the continuing battle to get MEPs to understand the damage this measure will cause, and to prevent it.

It is now inarguable that Article 13 will require the deployment of upload filters across many sites in the EU. The UN Special Rapporteur David Kaye has warned that upload filters put freedom of expression under threat, and harm creators and artists the most. Putting those two together means that any European politician supporting Article 13 is inevitably attacking a fundamental human right in the EU, and making life worse for artists. With just two weeks before the final vote in the European Parliament, now would be a really good time for EU citizens to ask their MEPs whether they are happy to be remembered for that, or would rather help to remove Article 13 completely.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: article 13, censorship, christian lange, copyright, eu, eu copyright directive, filters, germany, upload filters

German Football League To Try Novel Antipiracy Strategy Of Actually Having Legal Alternatives For Its Content

Copyright

from the whoa-whoa-whoa dept

Of all the antipiracy strategies on offer for the content industries, we’ve always promoted the having affordable, legal, and convenient alternatives as the best of them. As study after study after study has shown, one of the primary motivators for copyright infringement is a lack of reasonable access to the content legally. Why this is such a hard lesson to learn is anyone’s guess.

The popular German football league, Bundesliga, recently, and finally, came to the conclusion that the first step in competing with piracy of its games is to, you know, actually compete with it. The post starts off by mentioning how many of the larger football/soccer leagues are looking at site-blocking as the best tool for combating piracy. Bundesliga, however, apparently only recently realized that no legal alternative for many fans exists.

While several big leagues in Europe would also like to have these kinds of blocking tools at their disposal, it’s blatantly obvious that they can’t compete with piracy if they aren’t offering customers what they want legally. It’s a sentiment shared by Arne Rees, executive vice president of strategy for Germany’s powerful Bundesliga.

“One of the best defenses against [piracy] is certainly having legal product everywhere,” Rees said, as cited by SportsVideo.org. “If a fan simply can’t get you, their mind-set is, I want to watch it, and, if only a pirated stream is available, they will justify that. At the very least. we have to create an environment where legal product competes with the illegal product. The legal product will always be the better product,” Rees added.

The legal ways for fans to get Bundesliga games today is through a complicated series of streaming services across 200 countries that are rife with blackout restrictions, blackouts of the most important matches, or in some cases full restrictions for accessing any games at all. None of this is convenient or done with ease, making the simple matter of finding an infringing stream of a game the superior option. In cases where literally no option is available for a game, the league isn’t competing with piracy at all. It’s not even attempting to.

It’s resulting in sympathy even from some unlikely sources.

A report by Aftenposten last month detailed how fans were shut out of the key match between Everton and Manchester City so turned to pirate streams instead. Sarah Willand, Communications Director at TV 2, said the company understands the dilemma faced by fans.

“We would be happy to broadcast all the matches so that people see everything from the Premier League,” Willand said. “I therefore understand people’s frustration, it’s annoying not to be able to watch their favorite team on TV when you have a subscription.”

It should go without saying that sports leagues and their broadcast partners are in the business of serving their customers, not annoying them. All the scare tactics about how dangerous pirate streams are in terms of malware, or pleas centering around their illegality, aren’t doing much to deter their use. What certainly would do the trick is making sure fans have affordable and convenient ways to access all the content they want, rather than playing some insane game of streaming russian roulette.

This, of course, is completely illegal and to some extent probably hurts the earning potential of the various leagues around Europe and their broadcasting partners. However, it’s clear that the companies involved have the power – if they so choose – to solve this problem by offering all content, to all people, wherever they are, at a fair price.

Given the tangle of licensing agreements across dozens of regions, this is much – much – more easily said than done, few people will argue with that. But the cold, hard truth is that most fans don’t care. If they can’t get matches legally (and particularly if they already have an underperforming subscription service), many will feel justified turning to the high seas.

It’s true: fans don’t want to hear that offering real alternatives is hard because the tangled web of licensing deals struck with broadcasters makes it so. It’s time for leagues like Bundesliga to start serving fans what they want. And it’s nice to see they’re finally realizing it.

Filed Under: anti-piracy, competition, convenience, copyright, germany, legal alternatives, piracy
Companies: bundesliga

170 Years Of German Publishers Demanding Special Copyrights For The Press Because Of New Technology

Copyright

from the crying-wolf dept

While much of the focus on the debate over the EU Copyright Directive has focused on the upload filters of Article 13, we should be equally worried about the snippet taxes of Article 11, which journalists have already made clear will be used to enrich publishers at the expense of actual journalism (that is, if it leads to any money at all — since attempts to pass basically the same law in both Germany and Spain failed to produce the expected revenue windfall).

Former Icelandic Parliament member Asta Helgadottir recently put together quite an amazing Twitter thread detailing 170 years of German news publishers demanding special extra copyrights just for their industry — each time insisting that without it, new technologies would kill journalism. You can also read the whole thing on a single page at Threader, but here’s a (lightly edited) snippet:

1850: German Press publishers want #copyright of news because the newly arrived technology of the telegram is ruining their business model. It is rejected.

1886: German Press Publishers want news to be covered by copyright in the Berne convention. It is rejected, and copyright exception for news is established.

1908: German Press Publishers want to limit the possibility of reproduction of news by #copyright in the Berlin meeting for the Berne convention. It is rejected, as copyright is intended for inherently creative production.

1908: The Berlin conference thus reiterates their 1886 distinction of creative production and non-creative information and news with regards to #copyright protection.

1925: The conference of industrial property in the Hague rejects a proposal to make news industrial property, citing the decision of the Berne convention.

Seventy-five years of trying to make some intellectual property protection of news had failed. Trying to cover news by #copyright seemed to be hopeless.

1920s: The wireless technology threatens the established German Press Publishers. The fact that any owner of a wireless could listen to the news! Blasphemy.

1920s: “News Theft” explodes in Germany. The big press publishers are astonished by the fact that people are not willing to pay a hefty fee to buy their printed material.

1927: The Germans lobby for a resolution within League of Nations giving unpublished news #copyright protection, governmental news in the public domain, but published news were up to each national authority.

1928: The German ministry propose a law to protect news of the day and miscellaneous information with intellectual property at home. “vermischte Nachrichten tats?chlichen Inhalts und Tagesneuigkeiten”

1928: The emergence of the radio was one of the biggest reasons in the German’s new News law as it undermined the news industry.

1928-1933: The debate of the new German press law continues but is never realized because the ascension of the Nazi government and new press control laws made it redundant.

It goes on from there into modern times, and the story is always the same. German publishers demanding special extra copyrights on factual reporting, and whining over and over again about new technology upsetting its business model and threatening the “future of journalism” or whatever. And every single time they were wrong. They didn’t get the special copyrights and journalism survived (and in some cases thrived).

Given this background, why is it that EU bureaucrats are now suddenly taking those very same German publishers at their word when they insist that the internet is destroying their business, and they need these special copyrights (with the friendly name of “neighboring rights”) that serve no purpose other than as a wealth transfer from internet companies to legacy publishers who have failed to innovate?

Filed Under: article 11, copyright, germany, journalism, neighboring rights, press

More Copyright Policy Should Be As Boring As This Supreme Court Decision

Copyright

from the make-copyright-boring-again dept

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the “registration” of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the “application approach,” and others had gone with the “registration approach,” and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the “registration approach” and said that unless you’re subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

The Supreme Court decided correctly, for what it’s worth — as Mike wrote about earlier. But, as even a dedicated copyright nerd like your humble author must admit, it’s a pretty boring question. Copyright law is a field where small changes can have profound effects on people’s lives, where de facto speech policies can be shaped, and where new technologies and media can be formally blessed or condemned to utter oblivion. But it’s also a field of industrial regulation, cobbled together in large part by technocrats with domain expertise figuring out what works for all the parties in the room. To its credit, Fourth Estate is a case that limits its impact largely to that latter area.

But the fact that one body of law must do both things is the source of a lot of headache and heartache. Writing effective policy is hard, even when you’re not trying to write a single rule that governs both billion dollar studio contracts and comments on a blog. The consequences can be extreme, as Cory Doctorow once explained: “A funny thing happened on the way to the 21st century: copyright policy ceased to exist. Because every copyright policy that we make has a seismic effect on the Internet, and because you can’t regulate copying without regulating the Internet.” And of course, “as we make the transition from a world where everything we do includes an online component to a world where everything we do requires an online component, it’s becoming the case that there’s no such thing as ‘Internet policy’ – there’s just policy.”

But it’s neither inevitable nor accidental that copyright touches every part of our lives. It’s helpful to really break it down here: copyright is an enumerated bundle of restrictions that apply to things called “works.”

Doctorow’s argument is about the first half of that expression. He elaborated in another column: because everything we do with computers (and especially networked computers) involves observable acts of making copies, copyright touches nearly every use of a work. Uses that once went unregulated are now swept up in the bundle of rights because they involve a copy. There are big commercial examples of this, like how video rental used to be an act of moving a cartridge or a disc from place to place and now it’s a licensed act of making copies. But there are also a million little examples of this we encounter every day, from checking out books at the library to sharing a funny picture with friends to listening to our favorite music.

So that’s how the first half of the expression went awry; what was once a limited set of exclusive rights is now a mechanism to regulate all sorts of uses of things called “works.” That would be bad enough. But the real problem lies in the second half, in terms of what gets called a “work.”

That too used to be an enumerated list. The first U.S. copyright law covered maps, charts, and books. Over the years more and more categories were added, but the real shift was more fundamental. It happened, at least in the U.S., in 1976, when the overhauled law changed copyright from a system that was opt-in to one where participation was mandatory. Works were previously only subject to copyright restrictions if the author went through “formalities,”—namely, putting a copyright notice on the work and sending in a registration to the Copyright Office. The 1976 Act removed that hurdle. Overnight, that changed the character of copyright from a regulatory system that applied to a handful of professionals consciously participating in it, to one that controlled nearly every utterance and scribble that got fixed in a tangible medium.

That’s the one-two punch. First, through law: applying copyright coverage to basically everything. Then, through technology: expanding the regulated uses to basically all of them.

It’s a bad situation, and it’s that part that motivates people like Doctorow to take pursue a life of activism. With few exceptions, most people passionate about copyright reform care most about the consequences of copyright as an everything policy, and less so about the nitty-gritty of copyright as industrial regulation.

Which is part of the reason why, to bring it back to Fourth Estate v. Wall-Street.com, the Supreme Court decision is both correct and (mostly) boring. Correct, in part, because actual litigation is something that does not and should not apply to most human beings interacting with copyrighted works, and so it’s good for that to be conditioned on opt-in registration. Boring, in part, because it is (mostly) not about the side of copyright that affects blog comments, but instead the side that underpins billion dollar contracts.

Copyright policy has, for decades now, labored under the fiction that there’s no distinction between the boring parts and the scary parts of the law. It’s a good thing to remember there’s a difference.

Filed Under: boring, copyright, impact, innovation, policy, registration, scotus, supreme court
Companies: fourth estate, wall-street.com

It Sure Sounds Like Elizabeth Warren Wants To Bring The EU Copyright Directive Stateside

Copyright

from the maybe-think-on-that-a-bit-more dept

Last week we wrote a critical analysis of Elizabeth Warren’s big plan to break up “big tech.” As we noted, there was a lot in the plan that was nonsensical, unsupported by the facts or just plain confused. We’ll be talking more about some of these ideas a lot over the next few years I imagine (stay tuned), but there was one line in Warren’s plan that deserved a separate post: it appears that a part of Warren’s big attack on big tech… is to give a massive handout to Hollywood. Here’s the line:

We must help America?s content creators???from local newspapers and national magazines to comedians and musicians???keep more of the value their content generates, rather than seeing it scooped up by companies like Google and Facebook.

That may sound rather basic and lacking any details, but what’s notable about it is that the language reflects — almost exactly — the language used in the EU in support of the absolute worst parts of the EU Copyright Directive (specifically, Article 11 and Article 13). For example, this Q & A page by the Legislative Affairs Committee of the EU Parliament uses quite similar language:

The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and news houses and their journalists) what they truly owe them;

Why, that sounds quite familiar. Indeed, Warren’s announcement even uses “keep more of the value their content generates,” which appears to be a reference to the completely made up notion of a “value gap” between what internet platforms make and what they should be paying artists.

It’s no secret, of course, that those pushing strongest for Articles 11 and 13 plan to bring them to the US as soon as possible. Indeed, that’s why we pointed out that it is quite important for Americans to pay attention to what’s happening there — as it’s likely to follow across the Atlantic before too long. The fact that a leading Presidential candidate is already mimicking the language of such controversial European legislation is quite amazing, and suggests a Warren campaign that is very out of touch with what people actually want from their internet.

It’s also kind of odd for someone who paints themselves as a “progressive politician” who will stand up “against big business” to be hinting at policies that are obviously designed solely as a wealth transfer mechanism to the giant Hollywood studios, major record labels, and large newspaper publishers. It’s difficult to square that position with helping the little guy.

Similarly, one of our big concerns with Articles 11 and 13 is that, by their very nature, they will increase the monopoly issue. They are rules that only make sense if you have a few giant companies on each side negotiating with one another — rather than a large number of competitors, and a wide variety of independent creators. So, it’s doubly bizarre that Warren would include this suggestion in her big post about how terrible monopolies are and how she needs to break up big tech. Copyright-directive style proposals won’t do that. They’ll simply reinforce the dominant position of the big companies by making it nearly impossible for startups to even enter the market.

Filed Under: antitrust, article 11, article 13, artists, break up big tech, content creators, copyright, elizabeth warren, journalists, value gap
Companies: facebook, google

Disaster In The Making: Article 13 Puts User Rights At A Disadvantage To Corporate Greed

Copyright

from the don't-let-it-happen dept

Supporters of Article 13 in the EU Copyright Directive love to insist that all of the harms and concerns that many of us raise about how it will impact user rights are wrong, because the text of Article 13 says that user rights won’t be harmed. This is only sort of true. It does say that… but gives no instructions on how to make it a reality. Indeed, abiding by the rest of the law makes it impossible. In other words, it’s the equivalent of a law mandating everyone flies into the Sun, and when some of us point out that we’ll all burn up and die, the legislators tack onto the end of the bill “… and don’t let anyone burn up and die” without any further instruction.

Specifically, in the text, it says things like the following:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.

Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:

a) quotation, criticism, review,
b) use for the purpose of caricature, parody or pastiche.

And also they insist that this shouldn’t require mandatory filters, while providing no explanation for how to abide by the law otherwise:

The application of the provisions in this article shall not lead to any general monitoring obligation as defined in Article 15 of Directive 2000/31/EC.

And, perhaps my favorite, the “and don’t let this impact anything it shouldn’t” clause:

This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of their personal data, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation.

Of course, all of that is nonsense, because before you get to that part in the Directive, you have everything else that clearly requires automated filters. Section 4 of the text says that if you haven’t paid off EVERY SINGLE COPYRIGHT HOLDER, then you’re liable for any infringement “unless” you make:

“best efforts to ensure the unavailability of specific works”

And, if told about certain works:

“made best efforts to prevent their future uploads”

How the hell do you “prevent their future uploads” if you’re not filtering everything uploaded? And, how does an automated system determine if those future uploads are actually parody, or fair dealing, or some other exception. The general response from supporters of Article 13 is a giant shrug. As Communia notes, there is literally no way to abide by the law without filters, and it is literally impossible to comply with the section about protecting user rights:

If you can’t see that full chart, it’s reproduced here as well:

If you look at that full chart, you see something pretty important. The ordering of the obligations here is key, as pointed out by Kristofer Erickson. First up, you need to try to license all works. Second, if you fail to license all works in existence, you need to employ expensive and faulty filters to keep down anything that you’ve received a notice over. Only after all of that are you able to consider user rights.

To be more explicit about this, Article 13 puts user rights at the very end of the line, way past the massive corporate handout the law gives to record labels, movie studios and book publishers. Then, at the very, very end, where it doesn’t even matter, it says “don’t let all the bad stuff that everyone knows will happen actually happen.” But it does not explain how that’s possible, because it’s not. The law has all sorts of problems, but trying to shove in “user rights” as subordinate to the special privileges of a few giant industries is especially disgusting and corrupt.

Filed Under: article 13, corporations, filters, user rights

Supreme Court Says Of Course You Need To Register Your Copyright Before You Can Sue; Copyright Trolls & Hollywood Freak Out

Copyright

from the oh,-poor-souls dept

17 USC 411(a) (part of US Copyright law) states the following:

…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

This is pretty clear. It also becomes important in a surprising number of situations and cases, including quite a few we’ve discussed just recently, such as the various copyright lawsuits over dances in Fortnite, where it appears that none of the “dances” were actually registered with the Copyright Office. Copyright trolls, also, are somewhat notorious for threatening lawsuits over works without any copyright registration at all.

So it’s a bit bizarre that the Supreme Court even needed to weigh in on this, but there was a bit of technical confusion between a bunch of circuits as to whether or not you could sue as soon as you submitted a registration application, or if you had to wait until the Copyright Office issues the actual certificate of registration. While getting a registered copyright is mostly (though not entirely) a rubber stamp process by the Copyright Office, it still takes about six to seven months right now, though the Copyright Office has been upgrading its technology (after some earlier hiccups under the previous regime), and insists that before long the timing will be one of weeks, rather than months.

In a unanimous ruling, surprisingly written by Justice Ginsburg, the court ruled that the law is pretty clear and you have to wait until registration is complete and the certificate has been issued by the Copyright Office. It comes down to the Justices just reading what the law actually says and saying “um, that’s pretty clear.” Indeed, the ruling basically says the wording of the law wouldn’t make any sense if it meant you just had to submit the application to be able to sue:

If application alone sufficed to ?ma[ke]? registration, §411(a)?s second sentence?allowing suit upon refusal of registration?would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register?s decision on her application? Proponents of the application approach urge that §411(a)?s second sentence serves merely to require a copyright claimant to serve ?notice [of an infringement suit] . . . on the Register.? See Brief for Petitioner 29?32. This reading, however, requires the implausible assumption that Congress gave ?registration? different meanings in consecutive, related sentences within a single statutory provision. In §411(a)?s first sentence, ?registration? would mean the claimant?s act of filing an application, while in the section?s second sentence, ?registration? would entail the Register?s review of an application. We resist this improbable construction.

As for the claims that by requiring a copyright holder to wait infringement can go on for a while, the Court points out that the law still lets them go after all that past infringement after getting the registration:

If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer?s profits. §504. She must simply apply for registration and receive the Copyright Office?s decision on her application before instituting suit. Once the Register grants or refuses registration, the copyright owner may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials.

The court also takes a dim view on the idea that it takes too long to get the registration, and this could impact the statute of limitations on suing (three years):

Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act?s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Brief for Petitioner 41. Fourth Estate?s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register?s decision, even for infringement that began before submission of an application

Furthermore, Ginsburg notes that even if it’s taking the Copyright Office a long time, that’s an issue for Congress to deal with rather than the courts:

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. See GAO, Improving Productivity in Copyright Registration 3 (GAO?AFMD?83?13 1982); Registration Processing Times. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.

The surprising aspect of this is that Ginsburg wrote the decision. Historically, Justice Ginsburg has never seen a copyright case where she wouldn’t support the more Hollywood-friendly interpretation. Whether you agree with Ginsburg on other issues or not, she’s generally… awful on copyright with the infamous Eldred ruling being a key example (if you want to read a good half-book long rant about just how badly Ginsburg messed up nearly every aspect of the Eldred ruling, I highly recommend the book No Law, which has some choice words for that particular decision).

Still, this decision was a pretty straightforward reading of the statute, and in some ways builds on the basis that Ginsburg set forth in Eldred, in which she more or less says “hey, Congress can do what Congress wants regarding copyright.” And here, Congress has said you need to register to sue.

What’s amusing, though, is that this fairly minor step has Hollwyood and its friends completely flipping out about how much more difficult it’s going to be to stop piracy. But this makes no sense. Once a work is out there, it’s out there. It’s not like being able to sue a few months earlier is going to stop works from leaking or being available. And suing is usually not the most efficient way to stop the spread of something anyway (the DMCA takedown process still works…).

Of course, those who should really be worried are the copyright trolls who got kind of complacent about these things over the past few years. As Fight Copyright Trolls first noticed, prolific copyright trolling operation Malibu Media, has already been hit with an Order to Show Cause in response to this case for suing over works where no registration had been made:

It is hereby ORDERED that Plaintiff show cause in writing by March 12, 2019, why its complaint should not be dismissed for failure to state a claim upon which relief can be granted ? specifically, for failure to allege that registration or preregistration of the copyright claims at issue had ?been made? prior to the filing of this action. 17 U.S.C. § 411(a); see Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 2019 WL 1005829 (U.S. Mar. 4, 2019). If Plaintiff fails to show good cause, or does not file anything by that date, the Court may dismiss this action without further notice to Plaintiff.

Anything that causes more problems for copyright trolls has to be a good thing.

Filed Under: applications, copyright, copyright office, copyright registration, copyright trolls, litgiation, registration, ruth bader ginsburg, supreme court
Companies: fourth estate, wall-street.com