Tag: Copyright

Someone Gets It

Only a few years ago, it would have been unthinkable for someone at a major political publication, even a liberal one like The Nation, to suggest that IP protections need to be relaxed for the good of society, and now we are seeing this.

IP law is literally for the public interest, in the US at least, as is explicitly stated in Article 1, Section 8 of the US Constitution, “To promote the progress of science and useful arts.”

IP is not property, it is a way to benefit society, not a way to allow rent-seeking to dominate our society:

The explosion of inequality over the past four decades is appropriately a major focus of the political agenda for progressives. Unfortunately, policy prescriptions usually turn to various taxes directed at the wealthy and very wealthy. While making our tax structure more progressive is important, most of the increase in inequality comes from greater inequality in before-tax income, not from reductions in taxes paid by the rich. And, if we’re serious about reversing that trend, it is easier, as a practical matter, to keep people from getting ridiculously rich in the first place than to tax the money after they have it.

While the Reagan, George W. Bush, and Trump tax cuts all gave more money to the rich, policy changes in other areas, especially intellectual property have done far more to redistribute income upward. In the past four decades, a wide array of changes—under both Democratic and Republican presidents—made patent and copyright protection both longer and stronger.

………

The effect of these changes was to transfer money from the bulk of the population to the relatively small group of people in a position to benefit from them, either because of their skills in software, biotechnology, and other areas, or because of their ownership of stock in companies that benefit from these rules.

The upward redistribution of wealth arising from intellectual property (IP) is typically disguised in public debates as being the result of “technology.” But blaming technology attributes it to an impersonal force. When we point out that it is due to intellectual property, we make it clear that inequality is a policy choice.

………

By my calculations, the amount of money transferred from the rest of us to those in a position to benefit from IP comes to more than $1 trillion annually. This transfer comes in the form of higher prices for prescription drugs, medical equipment, software, and many other products. This amount is almost half the size of all before-tax corporate profits, and roughly one-third larger than the current military budget. In other words, it is real money.

Intellectual property does serve an important economic purpose in providing an incentive for innovation and creative work. But we can make patent and copyright monopolies shorter and weaker while still supporting innovation and creativity, instead of going the route of longer and stronger, as we have actually done over the past four decades.

………

Most of the public money goes to finance basic research, but sometimes the government supports the actual development process, as was the case with Moderna’s coronavirus vaccine. The government paid Moderna $483 million for its research and Phase 1 and 2 trials. It then coughed up another $472 million to cover the cost of Phase 3 trials. Incredibly, the Trump administration still allowed Moderna to have patent monopolies on its vaccine, even though the government had covered the development costs and taken the investment risk. If the vaccine had proven to be ineffective, the government would have borne the cost, while Moderna still would have been paid.

………

We need to keep this example in mind as the Biden administration develops its foreign policy agenda, especially its relationship with China. Biden has already complained about China’s stealing “our” intellectual property. This sets the stage for potential conflicts that are not at all in the interest of the vast majority of the American people.

………

While there may be cases where the failure to honor intellectual property can cost some middle-income jobs (for example, if China uses technology to which Boeing has patent rights), the impact is likely to be comparatively small. Arguing that we should protect Boeing’s IP on this basis would be like arguing that we should not tax Jeff Bezos because reducing his income could lead him to lay off some well-paid servants. The benefits that the relatively affluent and very wealthy get from IP protections are vastly greater than the higher wages that some workers may get as a result of working for Boeing or another company with large IP claims.

………

The rules on intellectual property are a major part of the story of upward redistribution of the past four decades. Contrary to what is typically claimed, they have likely been a major obstacle to technological progress, especially in the areas of health and climate technologies. It would be tragic if the protection of IP was a major cause of a cold war with China. It would be even more tragic if progressives were leading the charge.

The author, Dean Baker, has been saying this for years, and now he is getting a real hearing on this in the court of public opinion.  Huzzah.

Tweet of the Day

William Greenbladt, a photojournalist, who took this photo of the McCloskey’s pointing guns at protestors sent them a $1500 bill because they lifted the photo and used it as a Christmas card. pic.twitter.com/EpdRSp19Hx

— Michael Cali (@cali_photo) November 5, 2020

Not generally a fan of expansive IP protections, but sending an invoice to the S. Louis Ken and Karen for their use of his photograph of them brandishing their weapons epic.

Today in IP Law Abuse

The posted a video of their new “Truck” driving down the road, but it turned out that there was no propulsion system.

They just let it roll down hill and made it look like it was powered with camera angles:

Nikola has issued copyright-takedown notices targeting critics on YouTube who used clips of the promotional video in which a Nikola prototype truck was seen rolling down a hill.

Nikola last month admitted that the promotional video of a supposedly functional Nikola One electric truck moving along a highway actually consisted of the company’s vehicle rolling downhill. This week, Nikola “forced the removal of several critical videos from YouTube, saying they infringed its copyright by using footage from the company,” including the truck-rolling-downhill video, the Financial Times reported yesterday.

Sam Alexander is one of at least two financial commentators who had videos removed by Google subsidiary YouTube at Nikola’s request. He says that four of his videos were taken down.

“The claim is from when I showed 30 seconds of their Nikola One in Motion footage, which is what they put on Twitter and it’s of their Nikola One rolling down the hill,” Alexander said in a YouTube video he posted Wednesday.

………

“Right now my main concern is that Nikola is using copyright strikes to silence their critics,” Alexander told the Financial Times. Another YouTuber named Tom Nash “was required to take down three videos that featured criticism of Nikola,” including one that used footage of the moving truck, and has appealed YouTube’s decision, the Financial Times article said.

Meanwhile, both Nikola and Youtube are pointing fingers at each other, but my money is on Nikola

………

A Nikola statement sent to Ars and other media outlets tries to portray YouTube as the party that initiated the video-removal process. “YouTube regularly identifies copyright violations of Nikola content and shares the lists of videos with us,” a Nikola spokesperson told Ars. “Based on YouTube’s information, our initial action was to submit takedown requests to remove the content that was used without our permission. We will continue to evaluate flagged videos on a case-by-case basis.”

YouTube offered a different description, saying that Nikola simply took advantage of the Copyright Match Tool that’s available to people in the YouTube Partner Program.

“Nikola has access to our copyright match tool, which does not automatically remove any videos,” YouTube told the FT. “Users must fill out a copyright removal request form, and when doing so we remind them to consider exceptions to copyright law. Anyone who believes their reuse of a video or segment is protected by fair use can file a counter-notice.”

This is why there should be real, and severe, penalties for misuse of the take-down process in law.

Yes

Is the Staggeringly Profitable Business of Scientific Publishing Bad for Science?

This has been another episode of simple answers to simple questions.

The story is, of course, about ferociously corrupt scientific journal publisher Elsevier, which interestingly enough was founded by the ferociously corrupt media baron Robert Maxwell, who is ironically enough the father of Ghislane Maxwell, who is alleged to have some serious ethical issues as well.

The reveal here is that monster that is Elsevier was nurtured by British intelligence.

Why Google Should be a Utility

The fact that they don’t care enough to fall prey to these transparent censorship actions indicates that there should be a sh%$ load more regulation of their activities:

A Google search, at one time, could locate a news article on a man accused of attempted child rape, another on someone charged with fraud and still others on Ukrainian politicians facing corruption allegations. Googling certain keywords in March would find an article detailing the movements of two coronavirus-infected British tourists in Vietnam and warning others who visited the same places to take precautions.

Then the stories vanished.

Google stopped listing them in searches after it received formal requests that it scrub links to the pieces, a Wall Street Journal investigation found.

The Journal identified hundreds of instances in which individuals or companies, often using apparently fake identities, caused the Alphabet Inc. unit to remove links to unfavorable articles and blog posts that alleged wrongdoing by convicted criminals, foreign officials and businesspeople in the U.S. and abroad.

Google took them down in response to copyright complaints, many of which appear to be bogus, the Journal found in an analysis of information from the more than four billion links sent to Google for removal since 2011.

Google’s system was set up to comply with the Digital Millennium Copyright Act, or DMCA. The 1998 law gives tech firms immunity from claims in copyright cases as long they quickly take down copyrighted material once alerted.

Takedown requests to Google are often from media companies legitimately requesting that pirated copies of a movie or album be removed from search results. Publishers and news outlets, including the Journal, have also asked Google to scrub allegedly infringing material from Google Search.

Yet some requests, the Journal found, appear to be from people manipulating the system in ways it didn’t intend, resulting in Google’s taking down lawful content.

When a Colorado man, Dak Steiert, faced state-court charges of running a fake law firm in 2018, he sent Google a series of copyright claims against blogs and a law-firm website that discussed his case, claiming they had copied the posts from Mr. Steiert’s own website. That wasn’t true, the Journal determined, but Google erased the pages from its search engine anyway.

Last year, Mr. Steiert, who didn’t respond to requests for comment, pleaded guilty in Colorado state court to one count of false advertising in his business. The Colorado Supreme Court closed his practice. The articles remained invisible in Google searches until the Journal flagged the cases to Google, which then reinstated the links.

………

“If people can manipulate the gatekeepers to make important and lawful information disappear,” said Daphne Keller, a former Google lawyer and now a program director at Stanford University’s Cyber Policy Center, “that’s a big deal.”

………

After the Journal shared its findings with Google, the company conducted a review and restored more than 52,000 links it determined it had improperly removed, she said. Google said its review identified more than 100 new abusive submitters, declining to discuss individual cases.

………

A Google search for reputation managers turns up firms claiming to be able to remove negative content from popular search engines including Google—even though typically Google only removes links for alleged copyright violations or to comply with other relevant laws.

The Journal dug into the world of takedown requests by reviewing electronic records of copyright-removal notices that Google shares with Harvard University researchers. The Journal cross-referenced those requests with separate data Google releases regularly in a “transparency report,” which discloses whether it granted each request.

………

Financial-news site Benzinga fell victim to a common tactic to trick Google: backdating. Someone wanting Google to hide a webpage will find a little-trafficked blog and post a copy of the content from the legitimate webpage. After backdating the plagiarized post, the complainant will file an electronic notice with Google claiming the real article is a copyright violation.

A simple change to the DMCA, requiring fines against those who file false claims, and fines against entities who fail to use diligence with regards to a take-down notice,  (the latter would cover Google) would shut this crap down.

Meaningful regulation, and the right for private recourse would go a long way to shutting down this.

Good News in Copyright

It was a 5-4 decision, with the votes nearly evenly distributed between the liberal and the conservative wings of the court, which shows that IP maximalism is a bipartisan endeavor:

A narrowly divided US Supreme Court on Monday upheld the right to freely share the official law code of Georgia. The state claimed to own the copyright for the Official Code of Georgia, Annotated, and sued a nonprofit called Public.Resource.Org for publishing it online. Monday’s ruling is not only a victory for the open-government group, it’s an important precedent that will help secure the right to publish other legally significant public documents.

“Officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties,” wrote Chief Justice John Roberts in an opinion that was joined by four other justices on the nine-member court.

Everyone involved in the case agreed that the text of state statutes could not be copyrighted. But the state of Georgia argued that it could copyright annotations that are distributed with the official code. These annotations provide supplemental information about the law, including summaries of judicial opinions, information about legislative history, and citations to relevant law review articles. The annotations are produced by a division of legal publishing giant LexisNexis under a work-for-hire contract with the state.

The copyright status of the annotated code matters because the state doesn’t publish any other official version. You can get an unofficial version of state law for free from LexisNexis’ website, but LexisNexis’ terms of service explicitly warned users that it might be inaccurate. The company also prohibits users from scraping the site’s content or using it commercially. If you need the official, up-to-date version of Georgia state law, you have to pay LexisNexis hundreds of dollars for a copy of the official version—which includes annotations.

Public.Resource.Org defied Georgia’s rules and published the entire code, including annotations, on its website. The group argued that as an official document of the state legislature, it couldn’t be protected by copyright. The state sued and won at the trial court level. The 11th Circuit Court of Appeals reversed that ruling and sided with the non-profit. In an unorthodox move, the people at PRO urged the Supreme Court to review the case, even though doing so could reverse their appellate win, because they wanted to set a nationwide precedent.

The group’s gamble paid off—but just barely. Five justices bought PRO’s argument that Georgia’s official code was in the public domain. Four justices dissented and would have allowed the Peach State to copyright portions of its official legal code.

IP, both copyright and patent, are a cancer on our economic system, encouraging and extending rent-seeking behaviors (The Sonny Bono Copyright Act*) which interfere with economic efficiency and exacerbates inequality.

When vetting the next SCOTUS nominee, their record on IP needs to be under a microscope.

*It’s literally Mickey Mouse legislation.

Today in Boneheaded Rent Seeking

The EU Court of Justice has ruled that rental car companies do not have to pay a license fee for the public performance of music when they rent a car, even though every car made today has a radio, and the drivers could theoretically play music on the radio.

These sort of outrageous claims are the rule, not the exception, because there are no penalties for attempting to promulgate this bullsh%$:

Performance Rights Organizations (PROs), sometimes known as “Collection Societies,” have a long history of demanding licensing for just about every damn thing. That’s why there was just some confusion about whether or not those with musical talents would even be allowed to perform from their balconies while in COVID-19 lockdown. And if you thought that it was crazy that anyone would even worry about things like that, it’s because you haven’t spent years following the crazy demands made by PROs, including demanding a license for a woman in a grocery store singing while stocking the shelves, a public performance license for having the radio on in a horse stable (for the horses), or claiming that your ringtone needs a separate “public performance” license, or saying that hotels that have radios in their rooms should pay a public performance license.

Five years ago, we wrote about another such crazy demand — a PRO in Sweden demanding that rental car companies pay a performance license because their cars had radios, and since “the public” could rent their cards and listen to the radio, that constituted “a communication to the public” that required a separate license. The case has bounced around the courts, and finally up to the Court of Justice for the EU which has now, finally, ruled that merely renting cars does not constitute “communication to the public.”

A reevaluation, and a roll-back of implicit and explicit subsidies related to IP needs to happen sooner, rather than later.

Not Enough Bullets

Publisher lobbyists and their author lackeys, hoping to capitalize on increased book sales resulting from Covid-19 pandemic driven library shut-downs, has attacked the national emergency library project.

This is yet another case where the rent seeking from IP serves no public good:

Last week, when the Internet Archive announced its “National Emergency Library,” expanding access to more than a million digitized works, the group explained the move as a goodwill gesture in the time of coronavirus.

With so many brick-and-mortar libraries forced to close their doors, in other words, the group was opening up its lending program: Now, instead of its usual policy of just one digital copy per reader for a 14-day period, many frustrated readers could borrow copies of the same book during the same time — and could do so through the end of June or the end of the global pandemic, whichever came sooner.

But there’s one major issue that several media outlets, including NPR, failed to mention in covering the decision: Many writers and publishers say the website, even before the creation of this National Emergency Library, has been sharing full digital copies of their books without their permission.

………

“We’re librarians. We’re not social media gladiators,” Brewster Kahle of the Internet Archive told NPR over the phone Monday. “The best I can tell, [the critics of the system] just think what they see on social media, and they retweet it.”

Kahle said the group uses the same controls limiting access to these works as the publishers themselves, with encrypted files that are meant to disappear from the user’s computer after a brief period. The copies the group lends, Kahle said, are owned by the Internet Archive — either through donations, straight-up purchases or collaborations with brick-and-mortar libraries.

As the cost of publishing and distributing creative works has dropped by over a factor of 100, copyright subsidized industries have invested these profits in lobbying congress to increase those subsidies.

The purpose of IP is public benefit, but the current level of rent seeking provides none.

This Is a Point That I Have Been Making for a While

When discussing issues of patent, copyright,a d trademark, it is important to note that, “Intellectual Property Isn’t Property.”

It never has been.

If I steal your car, you no longer have the use of that car.

If I excerpt your essay, you still have that essay.

You cannot take IP in the same way that one could a spoon:

Frank Luntz’s rebranding of the estate tax as the “death tax” was an impressive bit of marketing genius, but perhaps the greatest branding coup in modern American politics was the introduction of the term “intellectual property” into the policymaking lexicon. Intellectual property guarantees the owner exclusive rights to the use of an idea, but the uglier-sounding term “intellectual monopoly” is actually more accurate.

It may be too late to cast intellectual property out of our parlance in favor of intellectual monopoly, but it’s worth addressing the underlying philosophical claim to ideas as property. There is a strong consequentialist case for intellectual property in theory, but IP does not satisfy the Lockean definition of property and therefore shouldn’t grant the holder property rights under a natural-rights framework.

………

To examine where property rights come from, let’s turn to John Locke’s Second Treatise of Government. To avoid a lengthy discussion about the merits of Locke’s arguments, let’s take the existence of property rights as he discusses them as a given: If I own myself and I put a part of myself, through my labor, into an unclaimed physical object, I should have exclusive claim to it in the same way I should have exclusive claim to my body and labor.

Why doesn’t this logic work for ideas? Most obviously and importantly, because physical property is scarce and rivalrous. If I take a piece of wood from the wilderness and whittle it into a spoon, anyone who uses that specific spoon is depriving me of my ability to use it.

This is at the nub of the problem Locke is trying to solve. Because physical objects are scarce and rivalrous in use, rights to use and control are necessarily exclusive: If one person gets to use and control the spoon, nobody else does. Locke is wondering how such exclusive rights got going if (as Locke believed) the physical world was given to people in common by their creator. He solves the riddle by asserting the right of self-ownership. Since our bodies and minds start out under our exclusive control, mixing our labor with external objects can bring them out of the common pool and into the realm of private property.

Ideas, on the other hand, are non-rivalrous, meaning their use by one party doesn’t prevent another from using them. If I come up with a new design for a wooden spoon and someone else uses the same idea (whether they learned it from me or developed it independently), my ability to use that design isn’t impeded.

What is impeded is my ability to monetize my design while denying others the ability to do the same. And in cases where the cost of innovation is high but the cost of imitation low, that impediment could end up mattering a great deal for society. Encouraging innovation by helping creators to monetize their creations is at the heart of the consequentialist case for IP. These considerations are, however, outside the scope of a Lockean case for intellectual property.

………

Furthermore, while you have a right to the products of your mind just as you have a right to the products of your body, there’s an important distinction that must be made between an idea in your head and one that’s known to others. If I come up with an original idea for a widget, song, book, or joke, I could tweet it, tell it to a few close friends, or take it to the grave. This is a natural extension of someone’s right to their own mind.

But once an idea is out in the open, it’s analogous to someone selling or giving away physical property they appropriated from nature. As long as something is transferred voluntarily, the original owner can’t make a claim to this property once it changes hands (or in this case, minds). To maintain otherwise would violate the right to free exchange, a natural extension of the right to property.

Meanwhile, physical property could theoretically remain private forever, while even the staunchest supporters of IP rights believe ideas should enter the public domain at some point. Suppose Alice goes through the traditional process of Lockean appropriation to produce a spoon. That could be hers through the end of her life, but if she gives it to Bob it becomes his. He can then give it to Charlie, and so on. At no point in this chain does the spoon go back into the commons for someone else to appropriate. To believe that intellectual property is, in fact, property, one must also accept the possibility of this infinite chain of private ownership.

The solution to this conundrum is to understand that IP is public interest law, as it states in the Constitution, it exists, “To promote the progress of science and useful arts.”

It is there to serve the public interest, by making the public pay for its benefits.

In other words, it’s socialism.

From the Department of About F%$#ing Time

This program has been documented since before Google bought them, and only now are they taking action:

YouTube is going after an alleged copyright troll using the Digital Millennium Copyright Act’s (DMCA) provisions, alleging that Christopher Brady used false copyright strikes to extort YouTube creators, harming the company in the process. Now, YouTube is suing Brady, using the DMCA’s provisions against fraudulent takedown claims, seeking compensatory damages and an injunction against future fraudulent claims.

The lawsuit, first spotted by Adweek reporter Shoshana Wodinsky, alleges that Brady sent multiple complaints claiming that a couple of Minecraft gaming YouTubers — “Kenzo” and “ObbyRaidz” — infringed on his copyrighted material in January. (Their legal names were not listed in the lawsuit.) YouTube removed the videos that Brady claimed were infringing on his copyrighted material, as the company does whenever a claim is submitted.

ObbyRaidz was sent a message from Brady, according to the lawsuit, that stated if the YouTuber didn’t pay Brady $150 via PayPal (or $75 in bitcoin), he would issue a third copyright strike. This would essentially terminate ObbyRaidz’ channel and remove all of his videos from the platform. Kenzo was sent a similar message, but Brady requested $300. ObbyRaidz spoke about the situation in a video, noting that he made multiple attempts to get in touch with someone at YouTube but didn’t make any progress.

Of course he couldn’t contact a human being.  That is the primary goal of all Google customer support, which opens up all its platforms to scammers and fraud.

Judges Have Had It with These Mother-F%$#Ing Copyright Trolls in Their Mother-F%$#Ing Courts!

The law, which was almost never applied to copyright plaintiffs, was that if the defendant made a reasonable offer in negotiations, and the final judgement was less than that, then the plaintiff was responsible for all court costs of the defendant.

This judge is sick of this lawyer using her court as an extension racket, and so has demanded that a $50,000.00 bond be posted for such an eventuality.

In the last couple of years, lawyer Richard Liebowitz has really made a name for himself in copyright trolling circles. He’s quite aggressive, and even got a huge profile written about him at Slate, in which it notes that, unlike many trolls who focus purely on shakedown settlement letters, Liebowitz runs straight to court to leverage the power of an expensive court case to push for insane settlements. “Sue first and negotiate later.” The Hollywood Reporter has done its own profile on Liebowitz as well.

It appears that many of his cases have ended up before federal judge Denise Cote, who clearly sees through his scam. Last year, we noted her scolding him for his practices, including not following court rules. Cote even referred to him as a “copyright troll” — something that offended him so much he requested that it be redacted. That request not only failed, but Cote reiterated:

“His litigation strategy in this district fits squarely within the definition of a copyright troll.”

Liebowitz is back before Judge Cote yet again in one of his many cases, and it’s not going well. As pointed out by the copyright troll fighters at Booth Sweet, Liebowitz is busy setting precedents that are bad for copyright plaintiffs. In this particular case, the issue has to do with Rule 68 of the Federal Rules of Civil Procedure. Under Rule 68, when sued, a defendant may make a settlement offer that includes some specific terms. 

In this particular case, Liebowitz, representing photographer Gregory Mango, sued Democracy Now!. Democracy Now! looked up how much Mango was licensing his photos for (a maximum of $220) and made a Rule 68 offer to settle for 5 times that amount. Liebowitz quickly turned the offer down, as he was seeking much more. But here’s the fun part of Rule 68. It’s part (d):

 Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

Translated: If Mango/Liebowitz’s final judgment is less favorable than the ~$1,000 Democracy Now! offered under Rule 68, then Mango is on the hook for all of Democracy Now’s legal fees incurred after that offer was made. That is likely to be many thousands of dollars. As Booth Sweet notes, many courts have said that Rule 68 doesn’t apply to copyright cases, but in Cote’s latest ruling she says it does, and tells Liebowitz to post a bond for $50,000.

In other words, even if Mango “wins” the case, but gets less than $1,000, he may be on the hook for tens of thousands of dollars in legal fees.

………

As we’ve seen with similar trollish operation, Mathew Higbee, it’s unclear whether these trolling operations are fully informing their clients that this kind of litigation could leave the clients on the hook for paying the other side’s legal fees. Both Liebowitz and Higbee promote their services on their respective pages as nearly risk free. Liebowitz’s says: “We work on a contingency fee basis, meaning we don’t get paid unless and until you get paid.” Higbee’s reads: “We are results oriented, so most of the cases we handle even have a money back guarantee or are done on contingency.”

That’s probably why so many photographers are willing to jump on board — as it seems like a “free” way to get extra cash while doing nothing. But not realizing that you may be opening yourself up to quite a bit of liability for filing bogus copyright lawsuits seems like a problem. Actually, it seems like a risk that a good lawyer would explain to his or her clients before signing them up. One wonders whether or not Liebowitz actually warns his clients of such a risk.

I am pretty sure that the lawyers don’t warn their clients about this, but I’m pretty sure that a lot of judges will require them to notify their clients in the future.

Why DRM Sucks

Microsoft is shutting down its DRM servers for its ebooks, which means that anyone who ever bought a book from them will no longer be able to read them.

Cory Doctorow warned us about this, as he strongly notes:

“The books will stop working”: That’s the substance of the reminder that Microsoft sent to customers for their ebook store, reminding them that, as announced in April, the company is getting out of the ebook business because it wasn’t profitable enough for them, and when they do, they’re going to shut off their DRM servers, which will make the books stop working.

Almost exactly fifteen years ago, I gave an influential, widely cited talk at Microsoft Research where I predicted this exact outcome. I don’t feel good about the fact that I got it right. This is a f%$#ing travesty.

(%$# mine)

Do not tolerate DRM in your media.

Justice

A group of lawyers had an idea: They would post pr0n videos on Bit Torrent, and then when people downloaded the film, they would contact them and demand money.

Otherwise, they would take them to court for their “illegal” downloads, where their targets would be revealed as pr0n watchers.

Of course, the downloads were not illegal, they were uploaded by lawyers and their agents.

Well, the HMFIC of this scheme just got sentenced to 14 years in prison.

It could not happen to a more deserving asshole:

A federal judge in Minneapolis has sentenced Paul Hansmeier to 14 years in prison for an elaborate fraud scheme that involved uploading pornographic videos to file-sharing networks and then threatening to sue people who downloaded them.

“It is almost incalculable how much your abuse of trust has harmed the administration of justice,” said Judge Joan Ericksen at a Friday sentencing hearing.

We’ve been covering the antics of Hansmeier and his business partner John Steele for many years. Way back in 2012, we started reporting on a law firm called Prenda Law that was filing lawsuits against people for sharing pornographic films online. Prenda wasn’t the only law firm filing these kinds of lawsuits, but Prenda came up with a novel way of ginning up more business: uploading the films itself, including some that were produced by Prenda associates.

A key part of the firm’s strategy was to seek settlements of a few thousand dollars. The demanded sums were small enough that it cost less to settle the lawsuits than fight them. Prosecutors say that the men made more than $6 million from copyright settlements between 2010 and 2013.

………

As the extent of the alleged fraud became apparent, judges began referring the pair to federal prosecutors. In 2016, the two men were arrested and charged with federal fraud, perjury, and money laundering.

The Minneapolis Star Tribune summarized the prosecutors’ case: “When challenged by judges around the country, Hansmeier blamed other lawyers who were hired to file lawsuits on his behalf, lied to the courts about his own involvement, and ordered the destruction of evidence.”

This is a very well deserved ass whupping.

Oh, Canada!

Canada’s Standing Committee on Industry, Science and Technology was charged with reviewing copyright policy, and they have just issued a report, and it is remarkably sane and reasonable.

No site blocking, no elimination of safe harbors, and no automated content filters:

The Standing Committee on Industry, Science and Technology has published its long-awaited review of Canada’s Copyright Act. The review, which serves as guidance for the Government, rejects a non-judicial site-blocking regime and keeps the current safe harbors intact.

Late 2017 Canada’s government requested the Standing Committee on Industry, Science and Technology (INDU) to carry out a thorough review of the Copyright Act.

After dozens of hearings, where it heard hundreds of witnesses and reviewed input from various stakeholders, the final review is now ready and published in public.

………

Related proposals suggested narrowing the ‘safe harbor’ for online service providers (OSPs). This includes changes to sections 31.1 and 41.27 of the Copyright Act, including abolishing these altogether.

While the Committee acknowledged the “value gap” problem for rightsholders, it stresses that the rights of Internet users should be taken into account as well.

………

The Committee finds it questionable, for example, that online services would be required to take down or de-monetize content, without allowing the uploader to respond to allegations of copyright infringement. That appears to refer, indirectly, to the EU’s Article 17.

Instead of making any concrete suggestions, the Committee recommends keeping an eye on how the EU deals with this issue, and draw lessons from this approach. Ultimately, however, any changes should be in the best interests of all Canadians, which is summarized in two recommendations.

“Recommendation 21: That the Government of Canada monitor the implementation, in other jurisdictions, of extended collective licensing as well as legislation making safe harbour exceptions available to online service providers conditional to measures taken against copyright infringement on their platforms.”

“Recommendation 22 That the Government of Canada assert that the content management systems employed by online service providers subject to safe harbour exceptions must reflect the rights of rights-holders and users alike.”

Moving onto enforcement against traditional pirate sites, the Committee reviewed input from various stakeholders who suggested the introduction of a site-blocking regime.

“The fight against piracy should focus more on large-scale, commercial infringers, and less on individual Canadians who may or may not understand that they are engaged in infringement,” the Committee notes, adding that it sees value in pirate site blocking.

To this end, the Telecommunications Act could be revised to streamline the blocking process. However, creating a separate regime that would bypass the courts, as several rightsholders have suggested, goes too far.

Considering the fact that these sorts or reviews are dominated by the monopolists who want absolute and control, with user rights, history, and the public good be damned, this is a remarkably good outcome.

The cost of publishing has fallen off a cliff in the past few decades, and I do not see how the public interest is served by increasing the power of license holders.

The deal is that incentives like copyright are supposed to encourage people to overcome the barriers to publishing, not to create ever expanding opportunities for looting by rentiers.

You May Not Be Allowed to Know the Law

The International Code Council is trying to enforce copyright over law2s, which means that people cannot freely read or shore, or(more importantly) understand the law:

UpCodes wants to fix one of the building industry’s biggest headaches by streamlining code compliance. But the Y Combinator-backed startup now faces a copyright lawsuit filed against it by the International Code Council, the nonprofit organization that develops the code used or adopted in building regulations by all 50 states.

The case may have ramifications beyond the building industry, including for compliance technology in other sectors and even individuals who want to reproduce the law. At its core are several important questions: Is it possible to copyright the law or text that carries the weight of law? Because laws and codes are often written by private individuals or groups instead of legislators, what rights do they continue to have over their work? Several relevant cases, including ones involving building codes, have been decided by different circuits in the United States Court of Appeals, which means the UpCodes lawsuit may potentially be heard by the Supreme Court.
………

UpCodes’ first product, an online database, gives free access to codes, code updates and local amendments from 32 states, as well as New York City. For building professionals and others who want more advanced search tools and collaboration features, UpCodes sells individual and team subscriptions. In 2018, UpCodes released its second product, called UpCodes AI. Described as a “spellcheck for buildings,” the plug-in scans 3D models created with building information modeling (BIM) data and highlights potential errors in real time.

………

It argues that its use of building codes is covered by fair use. The ICC, on the other hand, claims that products like UpCodes’ database harm its ability to make revenue and continue developing code. The ICC wants UpCodes to take down the building code on which it claims copyright, and has also sued for damages.

The law should be freely sharable, period.

If the ICC does not like that, then it should sue the code authorities making copies of its code, which they won’t because then code authorities would find some way to develop common code without out the ICC looting them.

As an aside, this is a potential application for AI, so for example the section of code from the ICC (Chapter 10, Section 1003.2), which reads “The means of egress shall have a ceiling height of not less than 7 feet 6 inches (2286mm),” could be automatically rewritten to read, “A ceiling height of at least  7 feet 6 inches (2286mm) is required.”

The information (2286mm) is not subject to copyright, just the exact expression is.  (It’s why, for example, the exact text of a recipe is copyrighted, but instructions that are functionally identical are not.)

I either case, I would like to see Congress change copyright law to explicitly make all regulatory code public domain.

The Bright Side to Brexit

A controversial directive introducing sweeping changes to copyright enforcement across Europe has been approved by the European parliament, despite ferocious campaigning led by Google and internet freedom activists.

The European copyright directive, voted in by 348 MEPs to 274 against, is best known for two provisions it contains: articles 11 and 13, referred to as the “link tax” and “upload filter”, respectively, by opponents.

The latter has been the main focus of campaigning. It requires websites that host user-generated content to take active measures to prevent copyrighted material from being uploaded without permission, under the penalty of being held liable for their users’ copyright infringement.

Article 11, the “link tax”, includes new requirements aimed at making companies like Google pay licensing fees to publications such as newspapers whose work gets aggregated in services like Google News.

Supporters say it prevents multinational companies from freeloading on the work of others without paying for it, but critics argue that it effectively imposes a requirement for paying a fee to link to a website.

Publishers and artists have pushed for the clauses, arguing that they would put an end to widespread infringement on sites such as YouTube and Instagram, while companies including Google and Amazon have attacked the measure as unworkable in practice, and overbearing to the extent that it may force them to close services in Europe.

When the link tax hit Spain, Google stopped carrying Spanish news links, and Spanish media has yet to recover from the loss of viewers.

The automated filters called for in Article 13 don’t work.

They filter out content that is not covered by copyright.

This is going to be a complete clusterf%$#.

2 Face Palms Here

The RIAA is claiming that an ISP is inducing music piracy in court.

It appears that the amazingly high speeds offered by the provider are inducing piracy.  (facepalm 1)

Face Palm 2

The provider that they are accusing of  “dangerously fast” internet?  Charter Communications.

Charter communications is so bad that they WISH that they had Comcast, a company so reviled that it had to take the alias Xfinity.

The music industry is suing Charter Communications, claiming that the cable Internet provider profits from music piracy by failing to terminate the accounts of subscribers who illegally download copyrighted songs. The lawsuit also complains that Charter helps its subscribers pirate music by selling packages with higher Internet speeds.

While the act of providing higher Internet speeds clearly isn’t a violation of any law, ISPs can be held liable for their users’ copyright infringement if the ISPs repeatedly fail to disconnect repeat infringers.

………

The music labels’ complaint also seems to describe the basic acts of providing Internet service and advertising high speeds as nefarious:

Many of Charter’s customers are motivated to subscribe to Charter’s service because it allows them to download music and other copyrighted content—including unauthorized content—as efficiently as possible. Accordingly, in its consumer marketing material, including material directed to Colorado customers, Charter has touted how its service enables subscribers to download and upload large amounts of content at “blazing-fast Internet speeds.” Charter has told existing and prospective customers that its high-speed service enables subscribers to “download just about anything instantly,” and subscribers have the ability to “download 8 songs in 3 seconds.” Charter has further told subscribers that its Internet service “has the speed you need for everything you do online.” In exchange for this service, Charter has charged its customers monthly fees ranging in price based on the speed of service.

That paragraph from the music labels’ complaint merely describes the standard business model of Internet providers. There is nothing illegal about offering higher Internet speeds in exchange for higher prices.
But the labels also allege that Charter’s lax approach to copyright enforcement helped it earn more revenue, in part because piracy supposedly inspired consumers to subscribe to faster Internet tiers.

So basically, they are suing Charter for being an ISP, and they are suing Charter for being too fast.

If I didn’t know the RIAA, I would be convinced that they were punking the judge.

Modern Extortion, YouTube Style

Extortionists are targeting YouTube channels with copyright “strikes” to extort money:

In a terrible abuse of YouTube’s copyright system, a YouTuber is reporting that scammers are using the platform’s “three strike” system for extortion. After filing two false claims against ObbyRaidz, the scammers contacted him demanding cash to avoid a third – and the termination of his channel. Every week, millions of YouTubers upload content for pleasure and indeed profit, hoping to reach a wide audience with their topics of choice.

On occasion, these users run into trouble by using content to which they don’t own the copyrights, such as a music track or similar.

While these complaints can often be dealt with quickly and relatively amicably using YouTube’s Content ID system, allegedly-infringing users can also get a so-called ‘strike’ against their account. Get three of these and a carefully maintained channel, with countless hours of work behind it, can be rendered dead by YouTube.

As reported on many occasions, this system is open to all kinds of abuse but a situation highlighted by a YouTuber called ‘ObbyRaidz’ takes things to a horrible new level.

The YouTuber, who concentrates on Minecraft-related videos, reports that he’s received two bogus strikes on his account. While this is nothing new, it appears the strikes were deliberately malicious with longer-term plan to extort money from him.

………

While people should be protected from this kind of abuse, both from a copyright perspective and the crime of extortion, ObbyRaidz says he’s had zero luck in getting assistance from YouTube.

“It’s very unfortunate and YouTube has not done very much for me. I can’t get in contact with them. One of the appeals got denied,” he explains.

It’s the nature of Google that no matter what happens, you never ever get to contact a human being, so if they take you down, you are basically completely f%$#ed.

Tech support literally does not exist, and this is a core policy of Google, which means that any

As is noted at Naked Capitalism, “If your business depends on a platform, you don’t have a business.”

It Appears That I Was Too Pessimistic

Good news everyone!



I invented a device that makes you read this in your head using my voice!

I thought that the EU’s disastrous article 13 copyright directive was a done deal.

It appears that I was too pessimistic, which is not something that I say too frequently.

It appears that between strong opposition from those who understand how insane that these proposals, and the looters from the content industries, who thought that they were not insane enough, it looks like the EU is backing off this proposal, for a while, at least:

So, this is certainly unexpected. Just hours after we pointed out that even all of the lobbyists who had written/pushed for Article 13 in the EU Copyright Directive were now abandoning their support for it (basically because the EU was considering making it just slightly less awful), it appears that Monday’s negotiations have been called off entirely:

BREAKING: Council has failed to find an agreement on its #copyright position today. This doesn’t mean that #Article11 and #Article13 are dead, but their adoption has just become a lot less likely. Let’s keep up the pressure now! https://t.co/DEYBhuRyGz #SaveYourInternet

— Julia Reda (@Senficon) January 18, 2019


………

As Reda notes, this does not mean that the Copyright Directive or Article 13 are dead. They could certainly be revived with new negotiations (and that could happen soon). But, it certainly makes the path forward a lot more difficult. Throughout all of this, as we’ve seen in the past, the legacy copyright players plowed forward, accepting no compromise and basically going for broke as fast as they could, in the hopes that no one would stop them. They’ve hit something of a stumbling block here. It won’t stop them from still trying, but for now this is good news. The next step is making sure Article 13 is truly dead and cannot come back. The EU has done a big thing badly in even letting things get this far. Now let’s hope they fix this mess by dumping Articles 11 and 13.