Copyfascism Watch : copyfight

UMG v. Veoh: Web 2.0 Sites are Protected under DMCA Safe Harbors

aheram — Tue, 06 Jan 2009 09:11:00 GMT

From the heroic Electronic Frontier Foundation:

Over the holidays, video hosting site Veoh won another victory under the DMCA safe harbors, this time against Universal Music Group (UMG). The ruling should put to rest the argument that transcoding and other activities necessary for making content accessible on the web are not covered by the DMCA's Section 512(c) safe harbor for storing material on behalf of users (i.e., hosting user-generated content). This is good news not just for Veoh, but also for YouTube and every other site that hosts material uploaded by users.

Like many other companies that host content on behalf of users, Veoh has been bedeviled by copyright lawsuits. The copyright owners make the same argument in each of these suits: the hosting service should be liable for every infringing bit uploaded by naughty users and responsible for the full cost of policing for infringement. Fortunately, Congress enacted the DMCA's safe harbor provisions back in 1998 to protect service providers from exactly these risks, offering immunity from copyright damages to those who implement a notice-and-takedown system. In August 2008, Veoh won a big victory against adult video purveyor Io Group, relying on these provisions.

Sites that host user-generated content are protected under the usually draconian Digital Millennium Copyright Act (DMCA) from the machinations of the copyfascist RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America). Liability is limited to the users actually committing the so-called infringement and not the sites that host the content. It is a victory and as mentioned in the article, Google will greatly benefit from this decision in its current suit with Viacom.

To those that are not familiar with Viacom v. Google, Viacom filed a 1 billion dollar lawsuit against YouTube and its corporate parent Google for the actions of its users. Many users that use YouTube are active posters of copyrighted content, remixed or otherwise. In question is whether or not Google or any other similarly built internet-based application or services can be held liable for the same copyright infringement of its users for hosting the infringing content posted by those users. At stake is perfectly legal, valid, and innovative use of such services. If the case goes in Viacom favor (and it can happen, just look at Grokster), this will discourage technology companies from developing a platform that will allow such open access to user-generated content.

I am extremely put-off by any collusion of Big Corporation with Big Government (hence my use of the word copyfascist and copyfascism). Every lawsuit these copy-monopolists file against innovators is a lawsuit filed against innovation, creativity, and the free market itself. These companies are asking for nothing less than an immoral government intervention on their behalf. A targeted bailout meant to mitigate risk to their failing business models at the expense of innovative start-ups and small businesses that pose a threat to their state-sanctioned monopoly.

It is very clear to me that copy-protectionism is incompatible with the free market.

Cross-posted at RedStateElectic.

New York Times Accused of Copyright Infringement

aheram — Wed, 24 Dec 2008 15:57:00 GMT

The New York Times is being sued by GateHouse Media, a publisher of mostly small, local newspapers, for copyright infringement over its linking and aggregation practices in its Boston Globe online unit.

In its lawsuit filed in U.S. District Court in Massachusetts on Monday, Fairport, N.Y.-based GateHouse Media, which publishes more than 100 papers in Massachusetts, accuses the Times of violating copyright by allowing its Boston Globe online unit to copy verbatim the headlines and first sentences from articles published on sites owned by GateHouse, including the Newton Tab.

The links, as seen on Boston.com's Newton site for instance, lead to the original articles on the GateHouse-owned sites, which display advertising. However the lawsuit claims GateHouse is losing advertising revenue as a result of the linking because readers don't see the ads on the GateHouse site's home page.

The linking also confuses readers, leading them to believe that GateHouse endorses the linking practice, according to the lawsuit.

LINK TO THE ARTICLE >>

According Catherine Mathis, senior vice president of corporate communications at the New York Times, the linking practice is common around the web and that GateHouse Media's claim of copyright infringement does not have merit.

Many blogs and news sites like Digg aggregate hundreds and thousands of headlines from all around the web and republishes snippets of news with links back to the original source. The heart of this issue is whether the practice falls under Fair Use or not.

In a similar case last year, Google was sued by Agence France-Presse (AFP) for its practice of republishing summaries of articles in its websites as part of its Google News service. That case was settled and ended with AFP entering a licensing deal with Google.

Cross-posted to Red State Eclectic.

Entertainment Industry Declares War on Australian ISP

aheram — Fri, 28 Nov 2008 04:13:00 GMT

Thirty-four of the biggest names in the entertainment industry has declared war on Australia's third-largest internet service provider (ISP) iiNet in a suit that claims that the broadband provider is partly responsible for its users' breach of copyright laws:

Australia's biggest film and television companies have ignited a long-simmering war with the internet sector, lodging a lawsuit against Perth-based broadband provider iiNet seeking damages that could run into millions of dollars.

The group, which includes Warner Brother, Sony Pictures, Disney and the Seven Network, has also left open its options of taking further legal action against the counttry's big two broadband players, Telstra and Optus.

The broad aim of the action is to stop internet users from using high-speed connections to swap digital versions of Hollywood films like American Gangster and Mama Mia! as well as and popular television shows such as Heroes and Two and a Half Men. These actions breach copyright regulations.

Operating under the banner of Australian Federation Against Copyright Theft (AFACT), this consortium of various entertainment heavy-weights are not ruling out taking action against Telstra and Optus, Australia's first and second largest ISPs. Considered a test case by many, the suit is but part of a series of actions taken by AFACT against smaller ISPs. Several small internet carriers have reported receiving aggressive cease-and-desist letters.

"It is unfortunate that the rights holders are targeting an ISP because under Australian law, internet service providers may generally be considered conduits which provide carriage services, and as such are not responsible for copyright infringements carried out by customers using their internet service," a spokesperson for Optus said.

AFACT and its members are expecting the ISPs to carry out its copyright enforcement and are now utilizing the state apparatus to coerce the companies into complying.

RIAA v. Joel Tenenbaum: The RIAA's Lawsuits are Unconstitutional

aheram — Thu, 27 Nov 2008 06:20:00 GMT

In what is shaping up to be the most significant copyfight case in years, the Berkman Center for Internet & Society and Professor Charles Nesson of the Harvard Law School in mounting a challenge against a federal copyright law that is the heart of the Recording Industry Association of America's (RIAA) copyfascist strategy of extorting payments from music fans who share songs online.

Nesson has come to the defense of Joel Tenenbaum, a Boston University graduate student that was targeted by RIAA's many lawsuits.

Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group — the Recording Industry Association of America, or RIAA — carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.

Nesson, the founder of Harvard's Berkman Center for Internet and Society, said in an interview that his goal is to "turn the courts away from allowing themselves to be used like a low-grade collection agency."

LINK TO NEWS ARTICLE >>

The constitutionality of the excessive fines that results from these lawsuits has been raised before:

This large punitive component is not troublesome when statutory damages are awarded for one or a few instances of illegal file-sharing. The punitive component serves as an incentive to sue, and punishment for breaking the law is quite normal. However, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence. As with the large punitive damage awards that the Court has held unconstitutional in the past decade, such a tremendous punishment violates substantive due process guarantees.

LINK TO THE PAPER >>

There are quite a few legal precedents that the courts uses to determine whether such fines violates due process, among them BMW v. Gore and TXO Production v. Alliance Resources. In BMW v. Gore, the Supreme Court ruled that the punitive damages awarded to Gore violated the Due Process Clause of the Constitution and sought to limit what the Alabama Supreme Court can reward Gore:

In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence. Only when an award can fairly be categorized as “grossly excessive” in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve.

LINK TO THE OPINION >>

The RIAA has been conspicuously avoiding targetting students from Harvard, due in large part to the presence of Berkman Center for Internet & Society. Alan Wexelbat of Corante's Copyfight explains:

Despite its widespread and very public campaign of suing its under-25 customer demographic, the RIAA seemed unwilling - some would say scared - to take on Harvard. Bangeman, along with others, noted that the Cartel's attack dogs seemed to be taking on easy targets.

Bloggers attributed this "oversight" on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad1. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.

The RIAA has long abused the court system to prop up its failing business model. In true copyfascist fashion, they extort payments from their own customers through intimidation and the threat of state coercion. Private property rights are abridged when the RIAA enforces its copyright.

Related links: http://blogs.law.harvard.edu/cyberone/riaa/

Jackson Browne v. Ohio GOP and John McCain

aheram — Thu, 20 Nov 2008 17:23:00 GMT

Last August, the Ohio Republican Party released a campaign commercial in support of Senator John McCain's campaign for the presidency. One of the music used in the campaign commercial in a thirty-second snippet is Jackson Browne's song Running on Empty. According to Browne, a supporter of President-Elect Barrack Obama, it gave an impression that he has endorsed Senator McCain. In a lawsuit filed by Browne, Senator McCain and the Ohio Republican Party has infringed on his copyright and gave the false impression that he has endorsed the senator.

In an interview with Wired.com, Browne's attorney Larry Iser said, "Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws."

The McCain campaign responded, "Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."

Not only are creativity and innovation threatened by spurious copyright-driven lawsuits like Browne's, but as we can see political speech as well. Limitations to copyright are codified in Title 17, Section 107 of the US Code, also known as the Fair Use Doctrine, allows people to create deritatives of copyrighted works without the copyright holder's consent. In a similar case, Keep Thomson Governor Comm. v. Citizens for Gallen Comm., the courts has ruled that the opposition group's use of fifteen seconds of another group's campaign music is fair usage and therefore non-infringing. Thousands of campaign videos have been produced by supporters of President-Elect Obama and Senator McCain using copyrighted music for great effect and then published on YouTube; all under fair use protections.

Browne's lawsuit will have a chilling effect on future political speech, especially his claim that Senator McCain's campaign misrepresented his views. Must fair users now take into account an artist's political beliefs when creating derivatives of their work? How reasonable is it to expect fair users to divine an artists' political belief?

The delicious irony of this is that Senator McCain has voted for increase copyright protections to detriment of fair use, the same fair use he is now invoking to defend himself against Browne's infringement claims.

USP v. Durkee: Copyright Infringement Claim Threatens Free Speech

aheram — Tue, 18 Nov 2008 17:15:00 GMT

Unsurprisingly, the Union Square Partnership (USP) utilized the egregious violation of basic rights that is the Digital Millennium Copyright Act (DMCA) to shut down a website parodying its own official website. Savitri Durkee, an activist concerned about preserving the character of Union Square and Union Square Park, created a website that parodied USP's redevelopment efforts in the area. In response, USP sent a DMCA takedown notice to her internet service provider claiming that her free speech infringed their copyright. Additionally, not only did they filed a copyright lawsuit against Durkee, they seek to gain control of her domain name through a claim filed with the World Intellectual Property Organization (WIPO).

In her battle to protect her abridged rights, the Electronic Frontier Foundation (EFF) has stepped in to represent Durkee against USP's baseless litigation. From the EFF:

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.
"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil right activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

LINK TO PRESS RELEASE >>

Baseless copyright infringement claims under the DMCA is all too common as evidenced by the EFF in their comprehensive white paper, Unintended Consequences: Ten Years under the DMCA. Too often, the DMCA is used by those wishing to silence their critics. Internet service providers and content aggregators are usually quick to comply to infringement notices lest they be forced to pay excessive statutory damages to claimants. But particularly odious is USP's attempt to wrest control of Durkee's electronic property in their claim filed with the WIPO. This is copyfascism at its very abominable.

Durkee, however, is in luck. The Constitution and several landmark cases are on her side. One of the most recent case, as well as being an EFF victory, is Frankel v. Lyons. In that case, the federal courts asserted than Stuart Frankel's website parodying Barney was non-infringing speech.

When the Content-Creators Break the Law

aheram — Tue, 17 Jun 2008 05:38:00 GMT

To defend their state-granted monopoly, that is. MediaDefender, an outfit paid by the MPAA and RIAA to disrupt peer-to-peer sharing networks, is suspected of engaging in denial-of-service attacks against Revision3. The company uses BitTorrent technology to deliver its own digital files (much the same way Blizzard uses BitTorrent to deliver patches to millions of its users). In an account published in their blog, Revision3 followed the tracks that led all the way back to MediaDefender.

A bit of address translation, and we’d discovered our nemesis. But instead of some shadowy underground criminal syndicate, the packets were coming from right in our home state of California. In fact, we traced the vast majority of those packets to a public company called Artistdirect (ARTD.OB). Once we were able to get their internet provider on the line, they verified that yes, indeed, that internet address belonged to a subsidiary of Artist Direct, called MediaDefender.

In its quest to track down content pirates, MediaDefender felt entitled to abuse another company's private property for their own profit all without Revision3's authorization. When Revision3 took steps to block MediaDefender's unauthorized use of Revision3's resources, MediaDefender's own servers brought down Revision3's entire internet infrastructure via a denial-of-service attack. Whether it was intentional or through pure negligence, it is clear that there must be legal consequences for MediaDefender's illegal actions.

News: Court Rejects "Attempted Infringement" Claim

aheram — Mon, 28 Apr 2008 16:09:00 GMT

A district court has resoundingly rejected the music industry's claim that the mere potential of copyright infringement (the "make available" theory of infringement) does not constitute infringement of distribution rights. From the Electronic Frontier Foundation:

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that "[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords." The court goes on to conclude that downloads by the recording industry's own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

Unlike in Elektra v. Barker, the court in this case rejected the RIAA's claim that they can sue people for attempted copyright infringement. It is highly encouraging, as the RIAA would have no doubt feel it can starting suing people for conspiracy to commit copyright infringement.

News: Reinhardt v. Wal-Mart Stores, Inc. et al

aheram — Sun, 27 Apr 2008 04:40:15 GMT

Richard Reinhardt's copyright infringement case against digital-music distributors Wal-Mart, Apple, and Real Networks has been dismissed by a judge frustrated at Ramones drummer's illogical argument that digital files are not “manufactured or sold,” but rather transmitted or licensed.

Reinhardt argues that the license refers only to 'all forms' that are 'manufactured or sold,' and digital downloads do not fall within its purview because they are transmitted and licensed to end users rather than manufactured or sold. This argument is without merit. The distinction Reinhardt attempts to draw departs from the most reasonable reading of the contract and he therefore bears the burden of justifying this departure. Reinhardt has failed to meet this burden, particularly because he alleges that the digital recordings were sold, contradicting his own argument that digital recordings are licensed but not sold.

LINK TO NEWS ARTICLE >>

This is interesting. The judge in this case, the Honorable Judge Shira A. Scheindlin, could have ruled on the issue of licenses itself, whether or not the licenses attached to the digital files sold to consumers have any legal standing whatsoever.

News: Does She Look Like a Music Pirate?

aheram — Sat, 26 Apr 2008 14:41:46 GMT

Tanya Andersen made news a few years ago when the RIAA boldly went after this single mother in their crackdown on so-called music pirates. She is in the news again, but this time she is the one on the attack:

When Tanya Andersen opens the door to her modest apartment in suburban Portland, Ore., her Maltese-terrier mix, Tazz, runs over and wags his tail in a friendly hello. The 45-year-old single mother doesn't seem like much of a fighter. She spends most of her days sitting on an overstuffed sofa with a heating pad behind her back to ease chronic pain and migraines that have kept her on disability for nearly five years. Her voice is soft and halting. Yet this woman is behind a fierce assault on the music industry and its tactics for combating music piracy on the Internet.

LINK TO NEWS ARTICLE >>

At stake is the RIAA and its copyfascist tactics:

Privacy breaches.
Illegal snooping.
Intimidation and extortion.

And that is what is being reported at the moment. In the guise of protecting their state-granted monopoly, the RIAA is more than willing to resort to dirty and underhanded tactics to extort money from innocent individuals.

What is Copyfascism?

aheram — Sat, 26 Apr 2008 07:11:29 GMT

copyfascism \'kä-pē-fa,shi-zəm\ - the belief in a state-granted monopoly on ideas and information utilizing governmental power and coercion in breaching free speech and private property rights, and the forcible suppression of creativity and innovation.

This is Copyfascism Watch

aheram — Sat, 26 Apr 2008 07:00:42 GMT

This is an age when innovations in information technology occur in breakneck speeds. Everything from music to books to software to full-length movies are becoming more widely and easily available. However, against this backdrop of ever growing access to information is an increasingly contentious conflict. This is the copyright social conflict or copyfight. And the copyright social conflict is now! From the halls of government to the servers of Pirate Bay, from the nation's colleges to the digital domain, the good copyfight is being fought against copyfascism.

This is Copyfascism Watch and we are copyfighting on the side of liberty.