We've written a few times about the so-called left shark, the internet meme that took off after one of singer Katy Perry's backup dancers (in a shark costume, naturally) looked a little "off" during her Super Bowl performance earlier this year. The internet went crazy and created all sorts of memes around "left shark." A guy named Fernando Sosa started selling 3d printed Left Shark figurines -- and then Perry's lawyers freaked out and basically claimed ownership to all things "left shark."
Thankfully, the guy selling those 3D printed left sharks, Fernando Sosa, was able to retain lawyer Chris Sprigman, who pointed out that there is no copyright in costume design. Soon after that, we noted a bizarre twist on the story, in that Perry's legal team made a quick effort to go and trademark left shark, while (amazingly) using one of Sosa's photos of his own 3D printed models as the photo they submitted showing what they were trademarking.
David Collier, the trademark examiner, isn't yet impressed by the attempt to register the design, which, he wrote, "identifies only a particular character; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services."
In other words, there's not enough evidence submitted yet that consumers look at "Left Shark" and think of a Katy Perry music performance.
The examiner also noted the differences between a photograph of Perry dancing with "Left Shark" and the drawing of "Left Shark" submitted as the design.
"Specifically, the [photograph] displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail," he wrote. "The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the shark's mouth appears without teeth; the shark also has oval eyes without eyelids."
Of course, we feel obliged to go back to a point that Sprigman made early on in these discussions: while Perry may have had something to do with creating Left Shark, she had basically nothing to do with the reasons why Left Shark became "Left Shark" rather than "random dancing character in a big show that everyone forgets soon after." As Sprigman noted:
No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn’t really about Katy Perry.
So if anyone deserves a trademark on it, it should be "the internet." Or we can just make this simple and not trademark it at all.
from the because-collateral-damages-is-foreign-to-you dept
For the most part, the recording industry has been rather quiet of late concerning copyright reform. With labels pulling funding from the RIAA and its international sister operations like the IFPI, the focus on copyright reform has been left mainly up to Hollywood and the MPAA. The recording industry has been much more focused on smaller issues like performance rights and other licensing issues. But, apparently, the recording industry hasn't yet truly given up on the idea of completely undermining key parts of the internet to get its wishes. According to the IFPI, its "top" goal for copyright reform is attacking the so-called "safe harbors" found in copyright law, like the DMCA's Section 512.
If you're unfamiliar with it, copyright's safe harbors are designed to make sure that the internet thrives, by avoiding frivolous litigation that would stifle free expression and innovation. Honestly, the safe harbors are a pretty simple concept: put the liability for infringement on the parties that actually infringe the content, rather than the internet services that they use. Think of it this way: you don't blame Ford for providing the getaway car in a bank robbery, and you don't blame AT&T for providing the phone service used to make a bomb threat. As such, it makes no sense to blame a hosting company because a blogger posted an infringing image.
IFPI's main target, not surprisingly, is YouTube. It makes a strained argument that the DMCA's safe harbor is costing the recording industry hundreds of millions of dollars -- and it does this by comparing apples to oranges.
Which results, the record industry argues, in what the IFPI calls a “value gap”. The trade group says: “An illustration of this can be seen in comparing the share of revenue derived by rights owners from services such as Spotify and Deezer, and those derived from certain content platforms like YouTube or Dailymotion. IFPI estimates music subscription services have 41 million paying global subscribers, plus more than 100 million active users in their ‘freemium’ tiers. This sector generated revenues to record companies of more than $1.6 billion in 2014″.
It goes on: “By contrast, YouTube alone claims more than one billion monthly unique users and is thought to be the world’s most popular access route to music. Yet total global revenues to record companies generated by certain content platforms including YouTube amounted to just $641 million in 2014, less than half the total amount paid to the industry by subscription services such as Spotify and Deezer”.
Note the implicit (and wrong) assumption, though: that YouTube and Dailymotion are the equivalent to Spotify/Deezer. Yet, much of the value in YouTube and Dailymotion is that they are platforms for anyone to upload any content, the vast majority of which is not music. But that point never seems to be considered by the IFPI at all. Instead, it wants to remove the safe harbors entirely from YouTube, by arguing that since the company is also providing services to help artists make money, it should lose its safe harbors:
Calling for action, IFPI chief Frances Moore said: “The value gap is a fundamental flaw in our industry’s landscape which sees digital platforms such as Dailymotion and YouTube taking advantage of exemptions from copyright laws that simply should not apply to them. Laws that were designed to exempt passive hosting companies from liability in the early days of the internet – so-called ‘safe harbours’ – should never be allowed to exempt active digital music services from having to fairly negotiate licences with rights holders”.
She added: “There should be clarification of the application of ‘safe harbours’ to make it explicit that services that distribute and monetise music should not benefit from them”.
But think about the obvious consequences to such a move (obvious to everyone but the recording industry, it seems). Removing the safe harbors from YouTube would have tremendous collateral damage, basically making the platforrm useless for all user generated content. It would effectively require Google to carefully pre-screen every video that goes up (beyond what it does now with ContentID -- which already, problematically at times, goes beyond what the law requires).
Furthermore, the message that Moore and IFPI are saying to the rest of the internet is don't help us monetize because the second you do, you should lose your safe harbor protections and immediately become liable for the actions of your users. How shortsighted can Moore possibly be? The recording industry's plan here is to basically tell the internet: don't build services that help us make money or we'll sue you. How is that possibly a smart strategy?
George Mason University professor Bill Schneider recently had an interesting blog post over at Reuters in which he discusses how Hillary Clinton is in a tough spot concerning the TPP and TTIP agreements, in that much of the Democratic party is now vehemently against these "trade" deals, while historically, the Clintons have been for them. The piece argues that whichever side Hillary takes will create a problem for her presidential campaign. The politics in the piece may be right, but almost the entire thing is built on the assumption that the TPP agreement really is about "trade" and that such an agreement will lead to cheaper goods and such. Take this passage for example:
Trade is not an ideological issue. It’s a populist issue — the people versus the establishment. Ordinary Americans are suspicious of trade deals. Economists have a hard time understanding this, but most people see trade not as an economic issue but as a moral issue.
People think it’s wrong for them to benefit as consumers from lower prices for foreign-made goods if it throws Americans out of work. Will they purchase the foreign-made goods? Of course they will — as long as they’re cheaper. That’s rational economic behavior. They just don’t think they should be allowed to.
I don't think that's actually what people are thinking at all, but even if we run with it, it's based on the very faulty premise that these agreements have anything to do with free trade at all. As we've discussed in the past, they do not. They are quite clearly often about the opposite of free trade. In the past, we've strongly recommended Michael Goodwin's epic comic about TPP where he shows how it's really got little to do with free trade, and everything to do with the ability to move investment capital around:
Perhaps an even better explanation comes from Tim Lee over at Vox, who goes into the history of these agreements, noting that the "free trade" stuff has mostly already been taken care of, as there aren't that many meaningful tariffs/trade barriers left. Instead, trade agreements have become a sort of secret playground for big corporations to abuse the process and force favorable regulations to be put in place around the globe. He discusses the history and how organized labor, the copyright industries, the pharmaceutical industries and more now basically use trade agreements as a secretive, anti-democratic process to force through regulations they want.
As the opportunities for trade liberalization have dwindled, the nature of trade agreements has shifted. They're no longer just about removing barriers to trade. They've become a mechanism for setting global economic rules more generally.
This trend is alarming to Simon Lester, a free trader at the Cato Institute. "We've added in these new issues that I'm skeptical of," he says. "It's not clear what the benefits are, and they cause a lot of controversy."
And this system for setting global rules has some serious defects. We expect the laws that govern our economic lives will be made in a transparent, representative, and accountable fashion. The TPP negotiation process is none of these — it's secretive, it's dominated by powerful insiders, and it provides little opportunity for public input.
If you make the facile assumption that the TPP is actually about free trade, then you might be confused about all the hubbub about it. If you actually take the time to understand that much of what's in there has nothing to do with free trade and, in fact, may be the opposite of free trade, you realize why there's so much concern.
Yesterday, we wrote about an important new bill, Aaron's Law, from Senators Ron Wyden and Rand Paul and Rep. Zoe Lofgren. It's a fix to many of the problematic aspects of the Computer Fraud and Abuse Act (CFAA). If you're unaware, the CFAA is supposed to be a law to be used against people doing malicious hacking, but the wording is so broad and problematic, it has been used against people for merely violating the terms of service on a website, or someone using a work computer for non-work-related items -- which could lead to excessively long jail terms. The reason Aaron's Law is named that is because of Aaron Swartz, the guy that Federal Prosecutors publicly announced was facing 30 years in jail under the CFAA because he downloaded too many academic journal articles from JSTOR -- despite the fact that he did so on the MIT campus where the campus had a site license that allowed anyone on their network to download all the JSTOR papers.
As we noted in our post, there are still some who are pushing in the other direction -- and they didn't waste much time. The very same day that Aaron's Law was introduced, Senators Mark Kirk and Kirsten Gillibrand introduced a competing law that appears to be a "We Should Have Threatened Aaron With More Years In Jail" Act. Okay, technically it's called the Data Breach Notification and Punishing Cyber Criminals Act -- and as I type this, no one seems willing to release the text. Both Senators have press releases out about the bill, but neither link to it, and Congress's website has a placeholder saying that it hasn't received the actual text yet either. Hopefully that will change soon.*
It's bizarre that they're lumping together data breach notifications and CFAA expansion in a single bill. These are two separate issues. And yet, from the press release quotes and the few small articles about these bills, it appears that everyone's focusing on the data breach notification stuff (which has its own problems) and thus we should be worried that the CFAA expansion could get included as something of a "throw in." The quotes, however, on this part of the bill are ridiculous. Here's Senator Kirk's press release:
This bipartisan legislation increases the maximum allowable fines and imprisonment for many of the most common cyber-crimes, including identity theft and theft of personal information. Current law does not sufficiently punish cyber criminals, and incidences like these recent devastating breaches of confidential information must be punished more aggressively. By modernizing these punishments, as many prosecutors have requested, we will better align punishments to the degree of harm that these crimes may inflict on victims.
The bill raises the maximum allowable fines and imprisonment for many of the statutes which cyber criminals are charged: identity theft, conspiracy to commit access device fraud, obtaining information from a protected computer without authorization and computer hacking with intent to defraud.
It's the whole "obtaining information from a protected computer without authorization" that is a serious concern here, as that's part of what's been widely abused. Both Kirk and Gillibrand use a lot of populist rhetoric about protecting people from all these scary data breaches out there, but it demonstrates a serious ignorance of how widely the CFAA (with insanely large existing punishments) has been used repeatedly for activities no one legitimately thinks of as malicious hacking. Furthermore, it suggests a pretty serious cluelessness about the incentives and motivations of those who commit many of those breaches. Increasing the number of years they could spend in time from crazily high to insanely high isn't going to change a damn thing. And if these two Senators can't understand that, they shouldn't be touching the CFAA at all.
* As an aside, it's plainly ridiculous for anyone to announce a new bill without releasing the actual text. Even more ridiculous: in searching for the text of the actual bill on both Senators websites, I note that the very first item highlighted on Senator Gillibrand's website is "Transparency" where it says "Senator Gillibrand believes that more openness and transparency in government leads to more accountability and better results." Well, you know what might helps with that transparency? If you actually release the text of the bills you're introducing when you introduce them so that people can take a look at them.
So, we already wrote about some of the crazy filings from John Deere and GM claiming that when you buy a vehicle from them, you don't really own it, thanks to the software inside, which those companies argue they still really own. This was part of the opposition to requests for exemption from Section 1201 of the DMCA. Once again, Section 1201 is the anti-circumvention clause, that says you can't break DRM even if it's for non-infringing purposes. But... every three years, the Librarian of Congress is allowed to "exempt" certain classes of items from Section 1201. the responses above concerned locking down automotive software, but there are some other crazy ones as well.
For example, the DVD Copy Control Association (DVD CCA) and the Advanced Access Content System Licensing Administrator (AACS LA) are so worried about an exemption for certain kinds of DVDs that it ran to the Copyright Office to claim that you simply don't own the DVDs you buy, and they'd really appreciate it if people stopped thinking they actually bought the DVD that, you know, they bought:
When consumers buy a DVD or Blu-ray disc, they are not purchasing the motion picture itself, rather they are purchasing access to the motion picture which affords only the right to access the work according to the format’s particular specifications (i.e., through the use of a DVD player), or the Blu-ray Disc format specifications (i.e., through the use of a Blu-ray format player). Consumers are able to purchase the copy at its retail price because it is distributed on a specific medium that will play back on only a licensed player.
Notice that even this statement is self-contradictory. The first sentence says they are not purchasing any content, but merely a "right to access." And yet, the very next sentence talks about the "purchase [of] the copy." So which is it? Are people purchasing a copy of the movie? Or are they merely licensing access to the content on the plastic?
This is a problem with Section 1201, showing how its expansive nature is fundamentally changing the concept of ownership in ways many people haven't even begun to understand yet.
Last week, we noted that Senator Ron Wyden and Rep. Jared Polis had introduced an important bill to fix a part of the DMCA's broken anti-circumvention laws found in Section 1201 of the DMCA. For whatever reason, some people still have trouble understanding why the law is so broken. So here's a story that hopefully makes the point clearly. Thanks to DMCA 1201, John Deere claims it still owns the tractor you thought you bought from it. Instead, John Deere claims you're really just licensing that tractor:
In the absence of an express written license in conjunction with the purchase of the vehicle, the vehicle owner receives an implied license for the life of the vehicle to operate the vehicle, subject to any warranty limitations, disclaimers or other contractual limitation in the sales contract or documentation.
How nice of John Deere to say that your ability to operate the vehicle is really subject to the "implied license" it granted you. These comments (and many others) come in response to the ridiculous triennial review process in which the Librarian of Congress reviews requests to "exempt" certain cases from Section 1201's rules against circumvention. We discussed the ridiculous responses from some concerning video game archiving last week, and the John Deere statement is in response to requests to diagnose, repair or modify vehicle software. And, of course, lots of car companies are against this, including GM, which argues that all hell will break loose if people can diagnose problems in their own cars' computers. It, too, thinks that you don't really own your car and worries that people are mixed up in thinking they own the software that makes the car they bought run:
Proponents incorrectly conflate ownership of a vehicle with ownership of the underlying
computer software in a vehicle.... Although we currently consider ownership of
vehicle software instead of wireless handset software, the law’s ambiguity similarly renders it
impossible for Proponents to establish that vehicle owners own the software in their vehicles (or
even own a copy of the software rather than have a license), particularly where the law has not
But the real conflation here is by GM, John Deere, and others, in thinking that because they hold a copyright to some software, that somehow gives them ownership over what you do with the copy you legally purchased with the car itself. Once that purchase is concluded, the vehicle owners should be seen to have given up any proprietary interest in the single vehicle you bought. But thanks to copyright and Section 1201, that's an issue that faces "uncertainty." And that's a problem.
The companies lay out a parade of horribles that will happen if people can circumvent the DRM they put in their vehicles, mostly focused on the idea that people might soup up their car, making it dangerous. But that's not a copyright issue. People have always souped up cars, and before there was software in cars, no one argued that Ford could prevent you from turning your Mustang into a drag racer. It's only copyright that has rewritten the very concept of ownership in a dangerous way. As Kyle Wiens notes in his article at Wired in response to the "but, but, car modders!" argument:
They’re right. That could happen. But those activities are (1) already illegal, and (2) have nothing to do with copyright. If you’re going too fast, a cop should stop you—copyright law shouldn’t. If you’re dodging emissions regulations, you should pay EPA fines—not DMCA fines. And the specter of someone doing something illegal shouldn’t justify shutting down all the reasonable and legal modifications people can make to the things they paid for.
But, by far, the most ridiculous in the "parade of horribles" comes from John Deere who was really, really, really, really stretching to try to come up with some way to pretend this is really about copyright issues. It argues that allowing farmers to modify the software in their tractors might lead those farmers to (and I am not making this up), listen to infringing music while they farm.
Moreover, TPMs for vehicle software for entertainment systems protects copyright
owners of copyrighted content against the unauthorized reproduction and distribution of
copyrighted works. For example, vehicle software for entertainment systems supports the
playing of copyrighted music files and copyrighted audio books, among other expressive works.
A vehicle driver may listen to sound recordings, while passengers may watch or view television
and movie content. TPMs for in-vehicle entertainment systems encourage content providers to
create and distribute highly-expressive copyrighted works that might otherwise be easily copied
or pirated if the TPMs were circumvented. Consequently, circumvention of the above TPMs for
purposes of “personalization, modification, or other improvement” is likely to encourage the
unauthorized reproduction, distribution, and use of copyrighted software and content.
I really feel sorry for whatever recent law school grad had this issue dumped on their desk and was told, "make this about copyright... some way... any way."
But all it really does is highlight the sheer ridiculousness of Section 1201 and how it's destroying property rights.
We've written in the past how Rep. Zoe Lofgren and Senator Ron Wyden had introduced "Aaron's Law" (named after Aaron Swartz) as a way to fix the very broken CFAA law, which was used to throw the book at Swartz for downloading too many JSTOR journal articles on MIT's campus (where anyone on the network is allowed to download whatever they want from JSTOR). Swartz later committed suicide, which many blame on the aggressive prosecution against him (I hesitate to join those who do so, as you never know all the factors that went into the decision). Still, the CFAA has long needed a massive overhaul, as the law is frequently abused by law enforcement to threaten massive penalties for rather routine activities on a computer network.
Lofgren and Wyden have now reintroduced Aaron's Law, and this time they've added Senator Rand Paul as a sponsor, which is interesting to see (especially as he courts the tech industry). They also have a nice group of co-sponsors, including Reps. Jim Sensenbrenner, Mike Doyle, Dan Lipinski, Jared Polis and Beto O'Rourke. Here are the three key things the new bill does, according to Lofgren:
Establishing that breaches of terms of service, employment agreements, or contracts are not automatic violations of the CFAA. By using legislative language based closely on 9th and 4th Circuit Court opinions, the bill would instead define 'access without authorization' under the CFAA as gaining unauthorized access to information by circumventing technological or physical controls — such as password requirements, encryption or locked office doors. Hack attacks such as phishing, injection of malware or keystroke loggers, denial-of-service attacks, and viruses would continue to be fully prosecutable under the strong CFAA provisions this bill does not modify.
Bringing balance back to the CFAA by eliminating a redundant provision that enables an individual to be punished multiple times through duplicate charges for the same violation. Eliminating the redundant provision streamlines the law, but would not create a gap in protection against hackers.
Bringing greater proportionality to CFAA penalties. Currently, the CFAA's penalties are tiered, and prosecutors have wide discretion to ratchet up the severity of the penalties in several circumstances, leaving little room for non-felony charges under CFAA (i.e., charges with penalties carrying less than a year in prison). The bill ensures prosecutors cannot seek to inflate sentences by stacking multiple charges under the CFAA, including state law equivalents or non-criminal violations of the law.
Frankly, I'd like to see CFAA reform go even further, but this is a good (and necessary) start. If you agree, you should let your own elected officials know that this is a bill worth supporting. Unfortunately, the White House is pushing a terribly bad update to the CFAA that won't actually fix the problems with it and could make the bill even worse. The DOJ, for example, remains a big fan of the CFAA and would like to see it expanded so it can be used more widely. At the same time, some large tech companies, like Oracle, have worked hard to prevent any significant CFAA reform, because they want to be able to use the law themselves. In other words, meaningful CFAA reform, no matter how strongly needed, is nowhere near a sure thing.
He did condemn WikiLeaks’ decision last week to publish a searchable list of the Sony materials, calling it “terribly wrong” and serving “no public purpose.” Dodd noted that many of the emails are from low-level employees who have a right to privacy.
Dodd said that the U.S. government was in the best position to try to go after the website not the trade organization he runs. In the case of the WikiLeaks situation, he praised Sony officials for being “highly responsive” in communicating with the proper authorities.
This is the same Chris Dodd who (before he worked for the MPAA) once gave a rousing speech at Google (of all places) in which he urged them to take a stronger stand against censorship and not giving in to government demands to block content.
Tell the Chinese government that Google.cn will no longer censor information with Google's consent. And should the Chinese government not find that acceptable, then Google.cn would shut down its operations. I understand that you've already moved all of your search records out of China, to prevent them from being turned over to the Chinese government. But what better way to affirm Google's commitment to the free flow of information as a human right, than to send this message to a nation with the largest population in the world?
But now, when a site is revealing some rather newsworthy leaked emails from Sony, Chris Dodd (MPAA version) wants the US government to throw the book at them and try to censor them. In that Google speech, Dodd said:
One way we respond to change, in my view, is to stand up, and to stand up for our principles, which do not change.
Apparently, your principles do change when the MPAA pays you over $3 million per year. I'm sure Dodd sleeps well at night with that money as a cushion, but I do wonder how he reconciles the fact that he sold out his principles.
Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott had apparently brought on a publicist, Max Markson, who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a "fair usage fee." As we pointed out, this was idiotic -- and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that "copyright experts agreed" that they had a point. That's flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson's interpretation of copyright law is laughably wrong.
Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law is there such a thing as a "fair usage fee") and rather insisted that he's obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He's also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:
“Any footage has to be owned by somebody. It’s not like it’s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it’s the same in this case.”
He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.
“Fair use doesn’t really apply to images,” he said. “There’s a fair use argument on the video, but there’s a very clear copyright on the use of the photographs.”
The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means "in the public domain." It does not. Things in the public domain don't need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That's why there is no such thing as a "fair usage fee." Second, the idea that "fair use doesn't really apply to images" is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn't even remotely arguable. Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.
And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:
The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.
Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. The Guardian's reporter, Jon Swaine, apparently called up Markson's employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.
Asked why they believed the footage needed to be licenced, Nissen Gray said: “We have discussed with our copyright attorneys and ‘fair use’ doesn’t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.”
I'm curious who these "copyright attorneys" are, because they're not just wrong, they're so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn't seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he's wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.
Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to "cash in." However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what's being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers, and they quite likely will hit back seeking a declaratory judgment for non-infringement.
* In further conversations, Markson also mocked me for caring about this, talking about how he's "closing deals daily!" as if he's proud of the fact that he's directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.
Yes, it's become something of a cliche to post John Oliver's weekly videos, but he keeps doing ones that feel like they're ripped straight from Techdirt's headlines that we just can't help ourselves (also, if the team over there working for Oliver wants some help -- let us know!). This time, he took on patent trolling and the need for patent reform in the US:
To be honest, if you regularly read our patent coverage there's very little in there that you won't already know -- though our coverage doesn't (generally) involve a dorky dancing guy who will draw you a cat, though if we get enough requests, perhaps we could add that to one of the Tims' job responsibilities. Still, it's nice to see more mainstream attention on patent trolls and the need for patent reform. The latest move for patent reform really kicked off in earnest when the issue got attention via a wonderful episode of This American Life. Perhaps John Oliver can help keep the momentum going so we can at least get something through Congress this year. It won't be enough, but it will help.
Congress claims to be really, really serious about passing cybersecurity bills this session -- even though each of the proposals it seems to put forth don't seem to have anything to do with cybersecurity, but plenty to do with increasing surveillance capabilities. We're still waiting for someone (anyone!) to explain what kind of cyberattack the latest bills would have stopped? Looking at the details, as has been the case for years, it really looks like these bills are about increasing the budget for various government agencies while simultaneously increasing surveillance capabilities.
It’s such a vital tool that the executive branch recently promised to move all its websites over to HTTPS within two years - many of its agencies, though not all, have already made the switch. But there’s not even a hint that Congress is attempting to do the same. (The website of the Senate Intelligence Committee, which is in charge of cybersecurity oversight on the Senate side, also looks like it was designed in 1996.)
Elsewhere in the article, Timm notes that almost no one in Congress uses encrypted emails or encrypted phone systems, and that pretty much all of Congress is easy prey for foreign intelligence agencies looking to snoop on it.
Perhaps Congress should get its own house in order before telling the rest of the country how to improve its cybersecurity?
And the key decision makers appear to be even worse than the rank and file:
Consider the qualifications of the members who are in charge of cybersecurity oversight and who are leading the push for these invasive new laws. The man in charge of the subcommittee on cybersecurity and the NSA in the House, Representative Lynn Westmoreland, has a background in construction and is best known for trying to pass a Ten Commandments law (while only being able to name three of them). His actual expertise in cybersecurity is anyone’s guess, besides having an NSA facility in his district.
It gets worse. The Congressman who oversees the appropriation of billions of dollars in cybersecurity funding for the Department of Homeland Security, Representative John Carter, said this about cybersecurity and encryption recently: “I don’t know anything about this stuff”. Yes, that is an exact quote.
We wrote about that comment by John Carter, in which he followed it up by proving that he was absolutely clueless about encryption. And yet he's looked at to help decide how these things are regulated.
Timm also reminds us how Congress used to have an Office of Technology Assessment, a non-partisan organization that advised Congress on technology issues from 1972 until 1995. That's when Newt Gingrich defunded it. An effort last year by Rush Holt to bring it back was overwhelmingly rejected, suggesting that Congress wants to remain ignorant, even as it has to make laws on this stuff.
At least it appears that more Congressional reps are finally figuring out how to use HTTPS -- with 214 members now at least supporting HTTPS, if only 76 default to it. That's not everything they need to know about cybersecurity, but it at least starts the conversation. Though it seems notable that no Senate site does. It really seems that if Congress wants to write laws about cybersecurity, it should first be required to get its own online security straight first.
We've been discussing Sony's ridiculous threat letters to members of the press (including us) with claims about how they should not read, share or report on the leaked Sony emails, hinting at how this violates all sorts of laws. As we've explained, that's a bunch of hogwash. While the original hacking almost certainly broke the law, reporting on what's in there after it's been leaked remains entirely legal. And, if you want even more support for why it's important, with the latest Pulitzer Prizes being awarded, it's notable that one of the winners for investigative journalism went to Eric Lipton of the NY Times for a series of stories that he's done exposing the influence of lobbyists -- and that includes Lipton's excellent reporting (with Nick Wingfield) using the leaked Sony emails to detail how the MPAA was trying to bring back SOPA via influencing various State Attorneys General.
That reporting has been tremendously important in exposing how the MPAA has sought to undermine the will of the public that was so outspoken concerning SOPA, but which had no way to speak out about what was happening behind closed doors because of those very doors. The fact that these emails have shone a bright light on questionable moves by the MPAA has also highlighted why we need more transparency on the policy making front and an end to backroom negotiations. That doesn't mean whoever released Sony's emails was necessarily right to do so, but those reporting on them absolutely have done incredibly valuable and important work. And, yes, it's legal to do so, contrary to Sony's silly threats.
from the how-dare-you-embrace-new-technology? dept
The decision of whether or not to embrace or fight innovation is such a weird one at times. It leads to such ridiculous choices. It's no secret that the big movie studios have decided that things like BitTorrent are evil and must be shunned at all costs -- even as plenty of successful creators have learned how to embrace the technology in ways that helps them make money in ways that weren't possible before. But, if you've staked your entire corporate position on the idea that BitTorrent technology is pure evil, then you can never, ever even try to embrace it and see if you can actually use it to your advantage.
Witness this bizarre email thread, in which Sony's top execs completely freak out over the idea that some other Sony folks are considering ways to use torrents for promotional purposes. It started with some Sony folks in Europe, who had the idea of putting up fake torrents of the TV show "Hannibal" that would (at first) include a short portion of the show, and then would tell downloaders to watch the show on TV. But Sony bosses in LA put the kibosh on this plan:
Personally, I love this and this it is a great promotion – unfortunately, however, the studio position is that we absolutely cannot post content (even promos) on torrent sites. The studio spends millions of dollars fighting piracy and it doesn’t send a good message if we then start using those same pirate sites to promote our shows.
Well, first of all, it's not a "great promotion" because people have tried putting up similar fake torrents for ages, and it tends to just piss people off. There's a reason they're downloading it rather than watching it on TV and telling them to just watch it on TV probably doesn't help anyone. It just pisses them off. But let's leave that aside for a minute.
The folks on the TV side at Sony tried again. They thought, instead of a "promotion" for the TV, how about just a "public service announcement" (PSA) about how unauthorized downloads are bad. This is also a pretty dumb idea that has been tried for over a decade and generally just leads to mockery. So it likely wouldn't be that effective, but Sony top execs got even more worried that even using torrents for PSAs would somehow legitimize BitTorrent, and Sony cannot allow that to happen.
I called Paula and restated that this is simply a long road to “no” because it so severely undercuts our efforts not only in CE, but all we have accomplished elsewhere (and that could be compromised by making the distinction between bad & good sites more gray)… Forget about a site blocking strategy if we start putting legitimate PSAs or promos on sites we’ve flagged to governments as having no legitimate purpose other than theft… PSAs being for public good, etc…
Elsewhere in the email thread, Sony Pictures' top lawyer Aimee Wolfson notes that "this is a highly problematic idea":
This is a highly problematic idea. Even with a PSA message, it will be easy for the pirate sites to cite it as (a) lawful activity on their site, and (b) an attempt to promote the show. (Note that the attached script is definitely promotional, and responds to the pirate viewer’s activity with a knowing and conspiratorial “wink” – not the message we would want to send.)
Meanwhile, the Sony TV and marketing people keep pushing for this idea, with Sony TV boss Steve Mosko saying "this is really important to me" and others recognizing that this is a "clever" idea, considering that the European team has "no budget."
In some ways, this is so incredibly shortsighted. Here Sony is so committed to the idea that torrents can't be shown to have any legal, non-infringing uses (even though there are plenty), that it won't even allow its own staff to experiment with ways to use the new technology to their own advantage. But just the admission in the email alone shows that Sony's top execs know damn well that there are legitimate, non-infringing, uses for BitTorrent, and they're deliberately trying not to use them just to make BitTorrent look much worse than it is.
Sony's focus is so blinded by "Piracy bad! Piracy bad!" that it can't even consider "Hey, this technology might be helpful." Once again, I'm reminded of how Jack Valenti declared in 1982 that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Except, at least back then Hollywood wasn't so stupid as to not embrace the VCR. Just four years after Valenti claimed that the VCR would kill the American film industry, in 1986, VCR revenue for the movie industry surpassed box office revenue. The Hollywood of the 1980s fought technology, but at least it learned how to use it to its own advantage. Apparently the Hollywood of today is so committed to hating on technology that it will give up the new markets enabled by it.
Yesterday we wrote about how Sony's high-powered lawyer on retainer, David Boies, had apparently been sending major media properties an idiotic letter warning them not to report on the leaked Sony hack emails. And then, what did we find in our mail on Monday afternoon? A copy of the same damn letter of our very own. How thoughtful of David Boies to send us a personally signed copy. I've asked my staff to frame it and hang it on the wall. I hope that he's charging Sony top dollar to send us a letter we'd already mocked as ridiculous, wrong on the law and pointless.
Anyway, given that we've now personally received our own copy, I feel semi-obligated to respond -- and to respond in public.
So, David, Leah and Sony Corp. -- our official response is: go pound sand.
Here's the really astounding thing: In December, Sony tried to turn this whole story into how the hack itself was an attack on free speech. It never was. Even if you believe the (incredibly dubious) story line that North Korea hacked Sony to try to prevent the company from showing a comedy about North Korea, the only "attack" on free speech came when Sony's top execs actually folded and originally agreed to not release the flick. It was only after being widely mocked that Sony worked out alternative plans and then tried to wrap itself in the flag and proclaim itself a true beacon of free speech.
But to take that "we're the bastions of free speech" and immediately turn it around and effectively threaten the media for reporting on newsworthy leaked content -- something that is quite clearly protected by the First Amendment and with some pretty high-profile case law backing that up -- just demonstrates how little Sony actually believes in free speech. Sony "supports" free speech when it's useful to make the company look good and then is willing to throw around a bunch of expensive legal FUD to try to intimidate the press, when actual free speech can be used to embarrass Sony.
Yes, it sucks for Sony that its emails were hacked. It would suck for just about any company, I'm sure. But that doesn't change the fact that the media has every legal right to report on those emails if they find it newsworthy. Threatening the media is not just counterproductive, it makes Sony look incredibly clueless and thin-skinned while at the same time just adding more life to the story itself.
Another week, another attempt by the legacy copyright players to find a way to enact SOPA via the backdoor. As we've been covering quite a bit lately, the Sony hack has revealed how "site blocking" (the key part of SOPA -- which is more accurately described as censoring parts of the internet) is still a major priority for the the legacy copyright industry, and they're exploring all sorts of ways to make it happen, from new lawsuits to new legislation to trade agreements to pressure on third parties to local politicians to the International Trade Commission to attacks on encryption and more.
It appears that the strategy of using lawsuits is now well underway with the major labels all teaming up to sue the site MP3Skull. That site has been around for a while, and is one quite frequently cited by copyright maximalists as an example of a "bad" player in helping people find unauthorized copies of music. At first I wasn't even sure if it was worth covering the lawsuit as it seemed rather typical of similar lawsuits that the legacy entertainment industry has filed against a variety of sites and services. Frankly, I don't know nearly enough about how MP3Skull works to have much of an opinion on the legal basis for the lawsuit, but it does seem odd that the labels are suing in Florida, when they're mostly based in NY and MP3Skull is most likely based in Russia. I'm guessing the MPAA's win against Hotfile in Florida may have something to do with the choice of venues.
But the reason this story is worth covering has little to do with MP3Skull itself. Rather, it's the remedies the labels are asking for: which is basically to have the court issue an insanely broad order that no one can ever point anyone to MP3Skull's websites or in any way help MP3Skull. Basically, the record labels are asking the court to pretend SOPA is the law despite it failing as a law:
...entry of an Order, pursuant to Section 502 of the Copyright Act (17 U.S.C. §
502), 28 U.S.C. § 1651(a), and this Court’s inherent equitable powers,
(A) enjoining Defendants and all third parties with notice of the Order, including
any Web hosts, domain-name registrars, domain name registries or their administrators, from
facilitating access to any or all domain names, URLs and websites (including, without
limitation, www.MP3Skull.com and www.MP3Skull.to) through which Defendants infringe
(B) requiring domain name registries (including VeriSign, Inc.) and/or registrars
holding or listing Defendants’ domain names and websites (including, without limitation,
www.MP3Skull.com and www.MP3Skull.to) through which Defendants infringe Plaintiffs’
copyrights to: (a) disable www.MP3Skull.com, www.MP3Skull.to and any related domain
names specified by Plaintiffs through a registry hold or otherwise, and to make them inactive
and non-transferable, and (b) transfer Defendants’ domain names to a registrar to be
appointed by Plaintiffs to re-register the domain names in Plaintiffs’ names and under
(C) enjoining all third parties with notice of the Order from maintaining,
operating, or providing advertising, financial, technical or other support to MP3Skull and any
other domain names, URLs or websites through which Defendants infringe Plaintiffs’
copyrights, including without limitation www.MP3Skull.com and www.MP3Skull.to; and
(D) enjoining all third-party distributors of applications, toolbars or similar
software with notice of the Order from distributing any applications, toolbars or similar
software applications that interoperate with any domain names, URLs or websites through
which Defendants infringe Plaintiffs’ copyrights, including without limitation
www.MP3Skull.com and www.MP3Skull.to.
That's a lot of text, but what it's saying is that the labels want the court to issue an order that the labels can then wave around to basically anyone, saying they cannot provide any services to the site and cannot link ("facilitating access") to MP3Skull. The labels chose their target carefully. It seems unlikely that MP3Skull is going to show up in a Florida court to defend itself if the site really is run by a group of mysterious folks in Russia who haven't revealed themselves. Thus, there's a half decent chance that a judge could just issue a default judgment, and possibly just sign off on giving the labels exactly what they're asking for. This doesn't always happen in default cases, but certainly is more likely when there's no real adversarial hearing to point out how insane and questionable the proposed remedy is.
Courts should generally try to avoid putting burdens on third parties entirely unrelated to the case in question. The labels must know this, but are hoping that without an adversarial process, they can present a very one-sided (and potentially misleading) story, and get the kind of ruling it wants, and then use that as a precedent for as long as they can.
Whether or not MP3Skull itself broke the law (and it's certainly possible the site did), everyone should be extremely concerned about the excessive remedies being sought and the way the labels are looking to get a judge to effectively pretend that an extreme version of SOPA is already the law.
from the that's-like-something-the-nazis...-oh-wait dept
Over the past few months, there have been a bunch of stories about the copyright status of Mein Kampf, with people fretting over the fact that the book is about to go into the public domain. The book, of course, was Adolf Hitler's manifesto, and while few people actually read it, in Germany it hasn't been published in decades. That's because the US seized the Nazis' publishing house, including its copyright in the book. It then gave that copyright to the state of Bavaria, which has used it to block the publication of Mein Kampf ever since. But, with Germany being a country where copyright is life+70, and seeing as Hitler died 70 years ago, on January 1, 2016, the book falls into the public domain (in the US, however, Houghton Mifflin apparently still retains the rights -- because nothing ever goes into the public domain here).
Either way, now there's another copyright dispute concerning a top Nazi: Joseph Goebbels, Hitler's minister of propaganda. It turns out that while his copyrights also flip over into the public domain on January 1st of next year, a UK professor, Peter Longerich, just published a new biography of Goebbels, and Goebbels' heirs have come out of the woodwork to demand royalties, because the book quotes Goebbels' diaries.
Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over the book Goebbels, by Peter Longerich, professor of modern German history at Royal Holloway, University of London.
Longerich, an authority on the Holocaust and Nazi era Germany, drew extensively on Goebbels’ diaries in his biography, which was published in Germany in 2010. Now those same passages from the diaries are set to appear in the English edition, which Penguin Random House UK and its imprint Bodley Head will publish on 7 May.
Most of the debate focuses on whether or not it is appropriate for money to "go to a war criminal," as Random House's top lawyer complains. There is also some discussion of who owns the copyright, as some believe that when the US seized the Nazis' publishing house and got the copyright on Mein Kampf, it also got the copyright on Goebbels' works.
Unfortunately, what's not discussed at all is how fair use should take care of a situation like this. Tragically for both Germany and the UK, neither have fair use. The UK does have a narrowly targeted "fair dealing" concept that likely does not cover this kind of scholarly publication.
Yet, this seems to show just why fair use is such an important concept. Being able to have academic experts properly quote historical source material in writing up biographies and other analyses of historical events and people seems like a no brainer for anyone hoping to properly study and record history. Using copyright to try to lock up such information (or to put a tollbooth on it) only serves to massively limit the ability of our society to accurately study and learn from history -- especially history as tragic as Nazi Germany.
Last week, we had a brief post on the disturbing news that Nevada's very good and very useful anti-SLAPP law was about to be destroyed by a new bill that basically gutted all of the important stuff in Nevada's bill. This would be pretty tragic, as anti-SLAPP laws are important in protecting free speech -- especially in protecting the free speech of those who challenge the wealthy and powerful. As you may know, there are a lot of wealthy and powerful people in Nevada, and it may be difficult to figure out which of them stand to benefit the most from killing off a law that prevents them from using hoards of cash to silence critics.
In the comments to our post, someone noted that casino billionaire Sheldon Adelson recently lost a defamation case thanks to Nevada's anti-SLAPP law and was told to pay up the legal fees of the guy he sued. Adelson is also pretty well-known for well-financed efforts for political causes he believes in. So that makes him a rather obvious choice. But over on his blog, Marc Randazza points the finger at a different Las Vegas casino-owning billionaire: Steve Wynn, arguing that Wynn also just lost a defamation lawsuit, thanks to California's anti-SLAPP law. Randazza points to some evidence tying a top Wynn lawyer/lobbyist, to the new effort.
And all I can think is, what is it about Las Vegas billionaire casino developer/owners that makes them so thin-skinned as to sue critics to try to silence their free speech?
from the so-why-do-we-need-information-sharing? dept
To hear politicians and the media talk about things, "cybersecurity" threats are some sort of existential threat that can only be stopped by giving the government more information and more control over our data. There is, of course, little to actually support that notion. And, two new studies show that (as has been the case for decades), the real threats are not because of super sophisticated technology and tools for hacking, but rather because end users are fallible and IT folks don't do a very good job locking doors (hat tip: WarOnPrivacy):
But two deeply researched reports being released this week underscore the less-heralded truth: the vast majority of hacking attacks are successful because employees click on links in tainted emails, companies fail to apply available patches to known software flaws, or technicians do not configure systems properly.
In fact, the real problem tends to be that people are still easily fooled by phishing emails:
In the best-known annual study of data breaches, a report from Verizon Communications Inc to be released on Wednesday found that more than two-thirds of the 290 electronic espionage cases it learned about in 2014 involved phishing, the security industry's term for trick emails.
Because so many people click on tainted links or attachments, sending phishing emails to just 10 employees will get hackers inside corporate gates 90 percent of the time, Verizon found.
And, then, of course, if the IT staff hasn't done much to secure things inside the gates, the hackers get the run of the place.
Stopping phishing is definitely a difficult problem, but it's difficult to see how that's one that's solved by giving the NSA more of our data. Of course, none of this should be new or surprising if you spend any time at all in online security realms. "Social engineering" has always been the most effective way to get into systems. But hyping up the fact that people are gullible and can be tricked into giving up their passwords isn't very sexy and doesn't get big companies and governments to shovel hundreds of millions of dollars at solutions. Freaking people out about sophisticated technology (that isn't nearly as effective) being used to launch hack attacks seems much sexier (and profitable).
Ken White, over at Popehat, has a story on the ridiculous situation concerning how lawyer/psychotherapist Jose Arcaya is going after lawyer Scott Greenfield (whose work we often mention around these parts). The history of how it got this far is a bit convoluted, and you can read the full Popehat post for the details, but here's my shortened version: An apparently unsatisfied former client of Arcaya left a negative review of Arcaya on Yelp. Arcaya sued for defamation, arguing that being called "absolute scum" is not merely an opinion because of the use of the word "total" (which as far as I can tell is not actually used in the review -- though perhaps he means "absolute" or perhaps something was edited. Also, for the record, the review appears to call him "absolute scum" not "absolute scum bag" though I doubt the difference matters):
Regarding the matter of whether "absolute scum bag" should be deemed defamation per se rests with the present court. Mr. Boka tTots out a series of cases indicating the word "scum" and "scum bag" do not fall in that category. However, by adding the word "total" he impugns everything about me, including character and capacity to carry-out legal work. It coincides well with the Dillon standard of defamatjon per se: a maliciously intended attack on my professional capabilities, an all encompassing put-down (i.e., "absolute scum", not just "scum bag" Or "scum")...
Anyway, the former Arcaya client reached out to White, who in turn reached out to Greenfield. Greenfield then reached out to Arcaya, trying to explain to him, nicely, that suing over someone calling you "absolute scum" on Yelp is probably not a productive venture and might -- just possibly -- backfire, thanks to a little thing called the Streisand Effect. About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it. And yet, we keep discovering new lawyers who have no idea about it at all.
Now, some might take this as a friendly bit of advice about how a course of action could potentially backfire once it is revealed to the public. But Arcaya, apparently, took Greenfield's explanation of how the Streisand Effect works... and claimed that it was Greenfield threatening him with the Streisand Effect. In response, Arcaya subpoenaed Greenfield and defended this move by apparently arguing that Greenfield was somehow threatening him in describing how the Streisand Effect tends to work, and claiming that Greenfield was somehow associated with "an illegal gang."
Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise. Rather than calling me Greenfield should have contact [sic] the Attorney General's office or the police to denounce what he had learned. Because of his failure to uphold the principle of propriety as a server of the law, I lodged a complaint the [sic] First Department's Discipline Committee.
What's amazing is how frequently we've seen this kind of reaction. From Charles Carreon to Prenda Law, those who find themselves faced with the public reacting negatively to their own lawyerly overreactions assume that "the public" speaking out is some sort of "illegal gang" out to get them. They don't realize that it's not about them (at all), but rather the public exercising its free speech rights to criticize what the public believes is an abuse of power.
Either way, the idea that merely explaining the Streisand Effect to a lawyer who was about to step right into it is some sort of threat concerning a "criminal gang" that somehow violates proper lawyerly activities is so ridiculously laughable, that I'd argue it's even more ridiculous than flipping out and suing over someone calling you "absolute scum."
Back in December, when the Sony emails first leaked, we wrote a detailed post about the bizarre views of the MPAA on site blocking, in that it was absolutely obsessed with putting site blocking in place while admitting it didn't understand the technical issues. That was based on the reporting done by some reporters who had seen a few of the emails. Now that Wikileaks has released the entire trove, we can discover some more details, like the fact that part of the MPAA's plan was to figure out how to create pro-censorship propaganda. It really is incredible, but that's a bulletpoint in an email from the MPAA's top lawyer, Steven Fabrizio, about part of the strategy at a "site blocking confab" the major studios held last fall:
Outreach to academics, think tanks and other third parties to foster the publication of research papers, white papers and other articles that tell the positive story of site blocking: e.g., it is commonplace around the world and working smoothly; it has not broken the internet; it is not incompatible with DNSSEC; it is effective; legitimate sites/content have not been blocked; etc.
Think about that for a second. The MPAA, which likes to declare itself one of the foremost defenders of free speech, was literally conspiring on how to create propaganda in favor of censorship, pointing to countries that already censor the web as "good examples" to follow. You'd think they would have learned from the time Bono tried to use China's censorship as an example of how to deal with copyright infringement what a ridiculous idea this is.
Consider the financial sector. They are charged with guarding against lawlessness within their ecosystem. Why? Because they're the only ones who can effectively and efficiently monitor that ecosystem. Otherwise you would have total anarchy courtesy of those misusing the system.
Many might question that claim about the financial sector, but... more to the point: the idea that the tech industry can "effectively and efficiently monitor" the ecosystem is not just wrong, it's nearly totally ignorant of how technology and copyright law work.
Platforms can tell what content is there, but it is not at all easy to determine whether or not it is "infringing." If you think it is, you're wrong. Hell, the very company being complained about here, YouTube, has put hundreds of millions of dollars into its own attempt at a technological solution and it sucks.
Remove the safe harbor and you've guaranteed two things: 1. YouTube is the last company in this space because no other company can take on the millions to build such a system and 2. Most companies just shut off user generated content.
The collateral damage from such a move is insane.
Like the owners and managers of the financial system who profit by their ownership and management of that system- the players in the internet ecosystem cannot simply wash their hands in the Holy Water and claim "safe harbor". While the Internet guys are not on the hook for every wrongdoing by a user of the ecosystem (any more than bankers) they have largely turned a blind eye and hide behind "safe harbor".
Bullshit. That claim about "turned a blind eye" is 100% bullshit. You are either ignorant or lying. Almost every platform goes above and beyond the safe harbors already in policing content and they still get attacked and blamed. None of them "turn a blind eye" on the issue, because they know to do so removes safe harbors and gets them massive liability.
IMO if you are one of the players that makes a business ecosystem run, you have a duty to interdict unlawful behavior.
Again, this is just wrong. You have a very weak understanding of the law. And while you mocked my statements about Ford and AT&T above, you are saying they should be responsible? Are you nuts?
In a world where you have hundreds of millions of people *communicating* with each other, demanding that technology companies wave a magic wand and stop infringement (which, again, is only a tiny part of services like YouTube) is impossible. You're only saying it's necessary because you know it's impossible and the people who pay your salary HATE having to compete with those fucking amateurs.
So you want to kill them off. Disgusting. You attack free expression and the platforms that enable it just so that some gatekeepers can try to regain some control over an ecosystem so they get all the profits. Sick.
At the end of the day, without commonsense, industry-designed regulation to prevent wanton looting of intellectual property the internet ecosystem is going to have regulation forced up their asses piecemeal by judges and lawmakers around the globe that will be a complete disaster by its design (or lack thereof).
You have so little of a clue it's almost pathetic.
This industry should be begging for regulation of their own writing to forestall the inevitable.
We have regulation. We have the DMCA safe harbors. And you complain that now you want to get rid of them.
The lesson learned from SOPA should have been that alternative regulation (through industry agreements and collateral actions like six strikes) will sprout in its place.
As expected, you learned the wrong lesson. I'm afraid you're going to have go back to school again the next time your friends attempt to do something stupid. Don't worry. Millions of teachers are ready to teach you again. And again. Until you get it.
Vox isn't left? I can't let that one go. Just looking at what's on today's front page of Vox, you'd have to be fairly blind to not see some leftward bias. The stories Vox chooses to cover support causes championed by the left (how great Obamacare is, the evil Koch brothers, etc.). That's just reporting the news? So MSNBC must be your favorite cable channel for "just reporting the news".
Are you even remotely aware of Tim Lee's history? He's the one who wrote the article, and he is not, in any way imaginable, a "left-leaning" reporter.
Either way WHO GIVES A FUCK about red team/blue team? This isn't about that.
Second, It's not just about trade, but that's been true of trade pacts for decades. Nothing new here.
Well, yes, there's a lot new here, but mainly the whole point of the article was that some supposed "expert" insisted it WAS about trade. So, clearly plenty of people still think it is, which is why I wrote this article.
Not sure what your complaint is other than that you have some weird issue with identifying which "team" people are on.
The author uses Vox (left) and the Cato Institute (right) to justify his conclusions?
Vox is not left or right. It's just a news publication. Cato is libertarian, not "right." Either way, the point was not about the ideological leanings of anyone, but the actual content. Do you have concerns about that?
Hard to believe that the AFL-CIO is publicly against it when their real plan is to use it to further their anti-democratic aims to force through regulations.
In the past, organized labor was very effective in using these deals -- but haven't been able to get their ideas into TPP this time around, which is why they're so against it.
Overall I think it was a weak article. Anyone who reads any major news outlet (WaPo, BBC, CBS - were just a few sites that explained the issue more clearly than this article) would know that free trade in today's world encompasses much more than things like getting Japan to open their markets to US autos or agricultural goods.
But most people still assume it's about *trade*. And it's not. That's the point.
Say what? They are being worked on right now, well into a democratic presidency. One who promised transparency but has kept the negotiations secret. This first sentence is so full of itself as to make me question the whole article.
Yes, they're being pushed by a Democratic executive, but nearly all of the Democrats in Congress (with just a few exceptions) are against it. On the whole, the Democratic party is mostly now against these trade deals.
Or heck, just about any other in the overall list.
Okay. So, Justin Bieber was discovered on YouTube. So was Jack Conte. And he's great and has now built up an entire separate company helping to fund tons of creative folks. So do we say that Bieber and Conte cancel each other out or do you realize that a single example proves nothing?
There are tons of musicians using the internet to do amazing things, from Jack Conte to Zoe Keating to Amanda Palmer to Alex Day to Steve Lawson to Jonathan Coulton to Matthew Ebel... and I could go on and on and on. And all of them have one thing in common: they used the internet to their advantage and realized that the "traditional" recording industry had no place for them. But in using the internet they could find their audience, connect with that audience and do something amazing (and make a living too!).
If you're really trying to go down the path of arguing that the internet has been bad for *music* you're going to lose so badly that you're going to look even more ridiculous than you already do.
I know, I know, you think your clever and you're arguing on an internet forum where everyone here is an ignorant fool. I'll just give you a heads up: your assumptions are wrong and you'd be wise to reconsider your path before we make you look even more foolish.
I see you still won't answer my questions. Interesting.
MPAA has been consistent in its support of fair use using the common definition of the term. I think you understand a lot about the lobbying process and some of what the issues are. But I guess you don't understand the nuances here, and the way the term "fair use" has been misapplied to support piracy enablers.
Ok. I will give you a new question (will you answer it?): How, exactly, is fair use being applied in trade agreements like the TPP to "support piracy enablers"?
And yes, it is hypocritical to latch onto illegally obtained private communications, to take the contents at face value despite no knowledge of the source and the integrity of the text, and then to attack me for remaining anonymous.
I did not attack you for remaining anonymous. As I said, that's your right. It's why we all you to comment that way and also why I will not reveal your identity, even though I know who you are. I just wanted to see if you were willing to put your name behind your comments so that the others in this thread would be aware of your past and present affiliations. You chose not to. No sweat.
Surely if we can bring down Hollywood, everyone will be very happy.
I have no desire to "bring down Hollywood." Quite the opposite. I wish Hollywood would wake up already and realize that fighting innovation and treating its best fans and consumers like criminals is counterproductive.
Just like we did to the music industry.
The *music* industry is thriving. The legacy recording industry, perhaps not as much. But more music is being made today than ever before, more people are listening to more music and (this is the part you don't seem to realize) more people are spending MORE MONEY on music than ever before.
Just because some old gatekeepers have been cut out of that system is no reason to fret. Well, unless you work for a legacy gatekeeper.
I'll put my name on this as soon as you put the name of your source on your article - the name of the Sony employee who leaked the e-mails.
My source was, as you know, Wikileaks. I'm not sure if you think you're being clever here, but as seen by the response from others, it just makes you look kinda silly. That's fairly typical for people who think they're clever.
Anyway, no big deal. I know who you are. I thought it was only fair to ask you if you wanted to reveal your affiliations. You don't have to. People will make their own assumptions.
I'm sorry you don't understand. But I also see that you are convinced you've uncovered some "shocking truth" about MPAA deception. There is none.
No, I don't think it's a shocking truth at all. I think it just highlights and confirms what we've know all along. The MPAA says one thing publicly, but another behind closed doors. That's not at all shocking, but it is a truth.
In the meantime, I note that you still haven't answered my questions. Perhaps there are reasons for this, but let's try to do it this way. I'll write out and number a set of new questions, and let's see if you'll actually answer them.
1. If the MPAA truly believed in fair use, then why wouldn't it want fair use to be a part of our trade agreements with other countries?
2. If the MPAA truly supported fair use, then why would it call the proposal to include fair use in the TPP "controversial"?
3. Why did the MPAA directly fight *against* Australia and the UK implementing fair use if they truly support fair use?
If you're serious about having a discussion, you can start there.
Nice deflection. I will note, for the record, that you did not answer any of my direct questions.
The gist of the anti-SOPA movement was "don't let the government censor what you can access on the internet". The mainstream media ate that up and regurgitated it. You don't think so?
No, that was not the gist of it. The gist of it was "don't pass a stupid copyright law that will have massive unintended consequences, including messing up some of the basics of how the internet works." There was very little "anti-gov't" sentiment involved.
I don't mind if you disagree with the MPAA position. But the MPAA has been consistent when it comes to fair use. I think, again, when the context and meaning of the term "fair use" is changed, you can create the illusion that the MPAA changed its position. But that's not being honest.
Again, this is simply not true. How has the "context and meaning" of the term fair use different in the two examples above. It is not. It is the same "fair use" being discussed. In fact, even if I try to twist and squint to look at what you're actually saying, your argument makes no sense. The "fair use" provisions that were put into the TPP involved using the Berne three-step test, a highly problematic rule that was supposed to be a floor for fair use, but which some (like the MPAA) have tried to pretend is a ceiling.
So, at *worst* the fair use mentioned in the TPP was a very, very, very limited version of fair use. And if you are who I think you are, you also know damn well that the MPAA was actively involved in making sure that Australia failed to include fair use in its copyright reform proposal.
To argue that the MPAA is in favor of fair use is clearly a lie.
The bottom line is what the intent of the language regarding fair use being referred to here is. That's what people should debate. There are two sides, and we can discuss as adults. But creating a narrative about the MPAA or Dodd flipping positions is disingenuous and detracts from the crux of the issue.
It's not about Dodd flipping positions. It's about the MPAA saying one thing publicly, while saying exactly the opposite in private to politicians.
You know this is happening. Why can't you admit it?
And again, I put my name on this. Will you put yours so people can know who you are making these claims?
I don't know where to begin. The TPP text was drafted over 5+ years, involving hundreds of lobbyists, corporate policy executives, industry leaders, government officials, and others.
In secret. That's not how democracy works.
Also, the text was leaked online numerous times over these years. The contents of the "state secret" document, as you call it, were common knowledge.
No, parts of the TPP, always a few months outdated, have leaked. But not the entire thing. And if we're talking about the IP section, by "numerous" you mean "twice."
As for the rest - well I think it's pointless here to review the history of private-public sector IP negotiations across industries in recent years. If you are well-versed on the topic - or even if your understanding is limited to well-publicized battles such as SOPA - you know what Dodd is referring to here. I'll give you a hint - the ISP's do not have a seat at the TPP negotiating table. What players do you think would sneak in the last minute fair use language, and why?
Those interested in protecting the free speech rights of the public? After all, the Supreme Court has noted how important fair use is in protecting free speech.
Yes, yes, I know what you're getting at. You think lobbyists for those nefarious search engines are trying to sneak in "fair use" because it's been so damaging.
But, that just makes the point I was making. The MPAA is lying about supporting fair use.
And finally - you want to refer to Dodd as a "shill". Well, then what do you call the rest of the players? Are the hundreds of other lobbyists and policy execs. working on TPP doing so pro-bono, representing the voice of the customer?
I didn't refer to him as a shill. But the rest of your comment, once again, sort or reinforces the point, doesn't it? Why is the TPP only being negotiated behind closed doors by lobbyists and policy people, rather than having the documents publicly out there for debate?
The reason, of course, was admitted by Froman's predecessor Ron Kirk, who said that if the public knew what was in the TPP it would never approve it. You're right that lobbyists are driving the process. We agree. And we agree that's problematic.
But that's unrelated to the question of the MPAA's dislike of fair use, which is what we were discussing here.
There was a coordinated effort on the part of certain lobbyists to insert language into the TPP that would indemnify them in any enablement of online piracy.
First of all, which "certain lobbyists" do you mean? Could you explain more? Because Dodd's letter says no such thing. He does talk about the safe harbors, but only in the idea that they would be weakened, not strengthened in the TPP.
Furthermore, *current US law* already indemnifies platforms, because *that makes sense* and is part of the reason why the internet has been so successful. You don't blame Ford because someone used a Ford as a getaway car. If you did, Ford would hobble their cars for the millions of law abiding users. In the same way, you don't hold YouTube liable for some users infringing, as they would be forced to hobble YouTube for all of the law abiding users. It would massively stifle the internet.
Dodd here was correctly defending the consistent stance of the MPAA related to this specific definition of fair use.
No, he was not. He was arguing that there should be NO FAIR USE in the TPP. That is not a consistent stance, nor the "specific definition" of fair use the MPAA is using. The MPAA has consistently fought back against fair use expanding to any other country, despite claiming it supports it in the US.
In the meantime, considering the document is secret, how is it that you claim to know what language was being inserted?
Just because a video is newsworthy doesn't mean that showing it is automatically fair use. For instance, there is this case, involving the airing of the Reginald Denny beating during the 1992 LA riots. In that case, the court found that the TV stations were liable because they had aired the entire 3-minute video without commentary. It is clear from the language of the ruling that a shorter clip may have been acceptable under fair use.
We actually discuss a *later* ruling concerning the Reginald Denny video (and how Court TV used it) in the article above, noting that the appeals court found it to be fair use.
Why don't they just get a warrant from a judge? If it is evidence, get a warrant.
Well, technically, they can't. The SEC only has subpoena authority. The DOJ is needed to get a warrant. But the issue here is over who they can subpoena for what information and how it impacts the 4th amendment.
Assuming you are from NY or that general area of the NE, my familiarity with the aero industry suggests that your father was possibly at one time in Grumman's employ at its Long Island facility.
A reasonably good guess, but not really true. Technically, my father was employed by Grumman for about 2 years in the 1960s, but he was out of there by the 1970s working for other aerespace/defense contractors. The friends of his that I have talked about this with never worked at Grumman at all.
The government cannot do anything right. NEVER. EVER. EVER.
First Amendment? They fucked that up? I'd argue they did pretty good on that one.
Section 230 of the DMCA? I'd argue they did pretty good on that one.
Both actually involve keeping things free and open and that's what these new rules are designed to do as well.
In other words, yes, the government often messes stuff up, but they can do a good job in clearing out safe areas for free expression and innovation, which is exactly what the new rules are designed to do.