Tag: Copyright

Like All Anti-Piracy Lists: FAIL

The EU is releasing a list of infringing sites, and the surprising thing is not that it is full of non-infringing sites, they all do, but that it includes Cloudflare, which is a close to a core technology for the whole internet as any single company gets these days:

In mid-January, the EU is hoping to finalize the EU Copyright Directive, including Article 13, which will effectively create mandatory copyright filters for many internet websites (while, laughably, insisting it creates no such burden — but leaving no other option for most sites). One of the key arguments being made by supporters of Article 13 is that it’s crazy to think that this law will be used to block legitimate content. This is pretty silly, considering how frequently we write about bogus DMCA takedowns. As if trying to prove just how bad they are at properly classifying infringing content, the EU recently released its “Counterfeit and Piracy Watch List”, which is a sort of EU version of the USTR’s “notorious markets” list. That list has been widely mocked for basically declaring any site that Hollywood doesn’t like “notorious”, even if no court has ever ruled that it’s breaking the law.

It would appear that the EU list has the same sort of problem. For example among the sites listed in the EU report is Cloudflare, a platform used by tons of internet companies (including Techdirt) as a CDN or to protect against DoS attacks (among other things). Cloudflare is simply a tool — like a phone line — that tons of internet companies use. If some of them are doing things that are against the law, that should be on those sites, not Cloudflare. Unfortunately, the EU doesn’t seem to care.

CloudFlare is a US based company, which provides hosting service combined with other services, including CDN services and distributed domain name server (DNS) services. According to the creative industries (film, music, book publishers, etc.) and other organisations, CloudFlare is used by approximately 40% of the pirate websites in the world. It operates as a front host between the user and the website’s back host, routing and filtering all content through its network of servers. Out of the top 500 infringing domains based on global Alexa rankings, 62% (311) are using CloudFlare’s services, according to stakeholders. A sample list of 6,337 infringing domain names presented by the film industry showed over 30% (2,119) using CloudFlare’s services.

 This is like claiming Verizon is a dope dealer because dope dealers use cell phones.

You Gotta be F%$#ing Kidding

Quoting Palmer from The Thing

Someone actually tried to copyright the taste of a specific of cheese, and it actually made to the Court of Justice of the European Union.

IP claims are completely out of hand:

A Dutch cheese company tried to claim that it had a monopoly on the taste of a cheese spread. The Court of Justice of the European Union weighed arguments from two competing food producers, and decided on Tuesday that a taste cannot be copyrighted.

Taste is “an idea,” rather than an “expression of an original intellectual creation,” the court ruled. And something that cannot be defined precisely cannot be copyrighted, it ruled.

The case was brought in the Netherlands, but it had been referred to the European court to make a ruling that would apply across the bloc. Levola Hengelo, a Dutch food producer, had sued Smilde Foods, another Dutch manufacturer, for infringing its copyright over the taste of a cheese spread.

The Levola product, known as Heks’nkaas, or Witches Cheese, is made of cream cheese and herbs and vegetables including parsley, leek and garlic. Smilde’s herbed cheese dip, which contained many of the same ingredients, was called Witte Wievenkaas, a name that also makes reference to witches. It is now sold as Wilde Wietze Dip.

Levola argued that the taste of food, like literary, scientific or artistic works, can be copyrighted. The company cited a 2006 case involving Lancôme, the cosmetics company, that had accepted in principle that the scent of a perfume could be eligible for copyright protection.


Well, there was no cheese tasting. But it agreed with Smilde that the taste of the cheese could not be defined with enough precision and objectivity to make it clear to other companies where they might be overstepping the mark.


To be protected by copyright, a work must be an “expression” of an original intellectual creation.

“Copyright isn’t supposed to be used to stop the spread and use of ideas,” said Joshua Marshall, an intellectual property lawyer at the European law firm Fieldfisher. “The taste of a leek-and-garlic cheese is really an idea.”

Copyright is supposed to “promote the progress of science and useful arts,” not to be used as an anti-competitive weapon to be used against competitors.

IP naturally has an anti-competitive effect, but that is a cost of the promotion of creativity, not a benefit.

Some Sanity from the Library of Congress

The Library of Congress regulates how people interact with copyrighted digital equipment, and they just ruled that you have a right to break the manufacturers’ digital rights management (DRM) in order to repair your device:

The Librarian of Congress and US Copyright Office just proposed new rules that will give consumers and independent repair experts wide latitude to legally hack embedded software on their devices in order to repair or maintain them. This exemption to copyright law will apply to smartphones, tractors, cars, smart home appliances, and many other devices.

The move is a landmark win for the “right to repair” movement; essentially, the federal government has ruled that consumers and repair professionals have the right to legally hack the firmware of “lawfully acquired” devices for the “maintenance” and “repair” of that device. Previously, it was legal to hack tractor firmware for the purposes of repair; it is now legal to hack many consumer electronics.

Specifically, it allows breaking digital rights management (DRM) and embedded software locks for “the maintenance of a device or system … in order to make it work in accordance with its original specifications” or for “the repair of a device or system … to a state of working in accordance with its original specifications.”

The Digital Millennium Copyright Act (DMCA) has always been a horrible law, but no where is it worse in cases where it allows manufacturers to lock people out from repairing items that they bought and paid for.

Of Course, It’s Georgia

Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let’s dig in:

For the past few years, we’ve been covering the fairly insane situation down in Georgia, where they insist that the state’s annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia’s laws are not covered by copyright. But here’s where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to “annotate” the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only “official” version of Georgia’s state laws is in the “annotated” version. If you want to look up the official law of Georgia you are sent to the “Official Code of Georgia Annotated” (OCGA), and it’s hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend “the Official Code of Georgia Annotated,” which certainly suggests that the OCGA — all of it — is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it’s also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court’s analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

We really need to reign in the IP zealots.

They have devolved into parasites.

Copyright Trolling, Sony Edition

Sony Music Entertainment has been forced to abandon its claim that it owned 47 seconds of video of musician James Rhodes using his own piano to play music written by Johann Sebastian Bach.

Last week, Rhodes recorded a short video of himself playing a portion of Bach’s first Partita and posted it to Facebook. Bach died in 1750, so the music is obviously in the public domain. But that didn’t stop Sony from claiming the rights to the audio in Partita’s video.

“Your video matches 47 seconds of audio owned by Sony Music Entertainment,” said a notice Rhodes received on Facebook. Facebook responded by muting the audio in Rhodes’ video. Remarkably, when Rhodes disputed Sony’s claim, Sony stuck to its guns and denied the appeal. As far as we know, Sony hasn’t commented publicly on the dispute or explained why it continued to claim Rhodes’ music.

But whereas Facebook’s formal appeals process didn’t work for Rhodes, public shaming seems to have done the trick. Rhodes’ tweet on the topic got more than 2,000 retweets, and Rhodes also emailed senior Sony Music executives about the issue.

As one commenter noted:

Guys, let’s be reasonable here.

Without strong copyright enforcement, composers like Bach will have no incentive to produce new music.

Sony is just ensuring that Bach has the financial freedom to release his next album. Really they’re doing you a favor.

Well, This Sucks

The EU just passed its new Copyright Directive, and it is a complete horror show.

Cory Docterow has the skinny on this:

Today, in a vote that split almost every major EU party, Members of the European Parliament adopted every terrible proposal in the new Copyright Directive and rejected every good one, setting the stage for mass, automated surveillance and arbitrary censorship of the internet: text messages like tweets and Facebook updates; photos; videos; audio; software code — any and all media that can be copyrighted.

Three proposals passed the European Parliament, each of them catastrophic for free expression, privacy, and the arts:

1. Article 13: the Copyright Filters. All but the smallest platforms will have to defensively adopt copyright filters that examine everything you post and censor anything judged to be a copyright infringement.

2. Article 11: Linking to the news using more than one word from the article is prohibited unless you’re using a service that bought a license from the news site you want to link to. News sites can charge anything they want for the right to quote them or refuse to sell altogether, effectively giving them the right to choose who can criticise them. Member states are permitted, but not required, to create exceptions and limitations to reduce the harm done by this new right.

3. Article 12a: No posting your own photos or videos of sports matches. Only the “organisers” of sports matches will have the right to publicly post any kind of record of the match. No posting your selfies, or short videos of exciting plays. You are the audience, your job is to sit where you’re told, passively watch the game and go home.

At the same time, the EU rejected even the most modest proposals to make copyright suited to the twenty-first century:

1. No “freedom of panorama.” When we take photos or videos in public spaces, we’re apt to incidentally capture copyrighted works: from stock art in ads on the sides of buses to t-shirts worn by protestors, to building facades claimed by architects as their copyright. The EU rejected a proposal that would make it legal Europe-wide to photograph street scenes without worrying about infringing the copyright of objects in the background.

2. No “user-generated content” exemption, which would have made EU states carve out an exception to copyright for using excerpts from works for “criticism, review, illustration, caricature, parody or pastiche.”


The mandate to filter the Internet puts a floor on how small the pieces can be when antitrust regulators want to break up the big platforms: only the largest companies can afford to police the whole net for infringement, so the largest companies can’t be made much smaller. The latest version of the Directive has exemptions for smaller companies, but they will have to stay small or constantly anticipate the day that they will have to take the leap to being copyright police. Today, the EU voted to increase the consolidation in the tech sector, and to make it vastly more difficult to function as an independent creator. We’re seeing two major industries, both with competitiveness problems, negotiate for a deal that works for them, but will decrease competition for the independent creator caught in the middle. What we needed were solutions to tackle the consolidation of both the tech and the creative industries: instead we got a compromise that works for them, but shuts out everyone else.

This is a complete sh%$ show, and it’s driven by the coverage by newspapers in the EU who believe that the underpants gnomes will make them a profit if this abomination gets passed.

We Could Power All of Prague from the Rotational Momentum of Kafka’s Corpse

A MEP wrote about how automated copyright tools would lead to removal and delisting by search engines and an automated filter had her article delisted:

Last week, Tim Cushing had a post about yet another out of control automated DMCA notifier, sending a ton of bogus notices to Google (most of which Google removed from its search engine index, since the sender, “Topple Track” from Symphonic Distribution was a part of Google’s “Trusted Copyright Program,” giving those notices more weight). The post listed many of the perfectly legitimate content that got removed from Google’s index because of that rogue automated filter, including an EFF page about a lawsuit, the official (authorized) pages of Beyonce and Bruno Mars, and a blog post about a lawsuit by Professor Eric Goldman.

But, seeing as we’re getting towards September when the EU Parliament will again be voting on the big Copyright Directive proposal there, including Article 13, which will require mandatory filters or other automated tools for preventing copyright infringement, I thought it was important to do a separate post calling out one of the other pages taken down by Symphonic Distribution’s out of control Topple Track. And that was that it got Google to de-index an article by Julia Reda, a member of the EU Parliament who has been leading the charge against the problematic provisions in the Copyright Directive proposal.

Specifically — and it would be hard to make this up if we tried — Topple Track’s automated filter got Google to de-index this blog post by Reda, in which she details the problems in Article 13 and how it will create mandatory censorship machines, that would likely lead to massive internet censorship of perfectly legitimate content. Let’s repeat that so it can sink in. An automated filter helped take down an article by a Member of the EU Parliament, explaining how a (still being debated) proposal would create automated filtering systems that would take down all sorts of legitimate content

Calling this Kafkaesque is a serious understatement.

What Palmer Said*

In response to a lawsuit alleging misuse of copyrighted material in their Michael Jackson biopic, Disney is now claiming that it is. “Taking a stand against overzealous copyright holders.

This is like Nathan Myhrvold complaining about patent trolls:

The entertainment giant and its broadcast subsidiary ABC submit its response in court to a copyright lawsuit over ‘The Last Days of Michael Jackson.’

Disney won’t be shamed out of standing its ground in the face of “overzealous copyright holders” like the Michael Jackson Estate. On Monday, the entertainment giant and its broadcast subsidiary ABC filed an answer to the copyright lawsuit over the two-hour documentary The Last Days of Michael Jackson, which used excerpts from This Is It and other works including music videos for “Thriller” and “Black or White.”

The lawsuit came in California federal court in May and pointed to just how seriously Disney takes its own intellectual property. The complaint gave examples: Disney threatened to sue childcare centers for having pictures of Mickey Mouse and Donald Duck on the wall; Disney once sued a couple on public assistance for $1 million when they appeared at children’s parties dressed as an orange tiger and a blue donkey; Disney sent takedown notices to social media services upon users posting photographs of their new Star Wars toys; and so forth.

In fact, Disney’s response to the Michael Jackson lawsuit comes just days after it suffered a setback in a lawsuit against a business that sends individuals in costumes to kids’ birthday parties.

No matter and forget any sense of irony.

Answering claims over illicit use of Michael Jackson rights, Disney states, “This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works — here, in most instances well less than 1% of the works — for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.”

Seriously, the level of hypocrisy here is so dense that there is a non-trivial risk of a black hole forming.

*In John Carpenter’s movie The Thing, when Norris’ head sprouted legs and began to walk away, Palmer (no first name) observed, “You gotta be f%$#ing kidding.”

A Brief Respite of Copyright Sanity

This is not a common thing, but the rules proposed were awful, requiring fees to be paid for linking, and prohibiting the use of snippets:

A controversial overhaul of the EU’s copyright law that sparked a fierce debate between internet giants and content creators has been rejected.

The proposed rules would have put more responsibility on websites to check for copyright infringements, and forced platforms to pay for linking to news.

A slew of high-profile music stars had backed the change, arguing that websites had exploited their content.

These sites cannot use their content without permission from the designated license holders for this content, in this case the record labels, who, as always, have screwed the artists.

That is not a problem with Spotify, that is a problem with your agents.

But opponents said the rules would stifle internet freedom and creativity.

The move was intended to bring the EU’s copyright laws in line with the digital age, but led to protests from websites and much debate before it was rejected by a margin of 318-278 in the European Parliament on Thursday.

What were they voting for?

The proposed legislation – known as the Copyright Directive – was an attempt by the EU to modernise its copyright laws, but it contained two highly-contested parts.

The first of these, Article 11, was intended to protect newspapers and other outlets from internet giants like Google and Facebook using their material without payment.

But it was branded a “link tax” by opponents who feared it could lead to problems with sentence fragments being used to link to other news outlets (like this).

Article 13 was the other controversial part. It put a greater responsibility on websites to enforce copyright laws, and would have meant that any online platform that allowed users to post text, images, sounds or code would need a way to assess and filter content.

The most common way to do this is by using an automated copyright system, but they are expensive. The one YouTube uses cost $60m (£53m), so critics were worried that similar filters would need to be introduced to every website if Article 13 became law.

There were also concerns that these copyright filters could effectively ban things like memes and remixes which use some copyrighted material.

There will be another bite at the apple on this in a few months though.

I expect them to move a few commas, and lobby the sh%$ out of MEPs to switch their votes.

This law is bad, and not just on its own merit.

This law is bad because these sort of expansions of IP are misused and abused to extract even greater rents.

If you were to have told a Congressman in 1998 that the law would be used to prevent people from refilling ink cartridges, or using universal garage door openers, they would have laughed in your face, but both of those things happened within 2 years of adoption of the law.

Whatever form this law takes, its will be worse than its most ardent opponents predict, because that is where the money is.

Not a Surprise

The EU spent €360,000.00 on a study of the effects of piracy on sales of media, and found that there was no evidence of an effect, so they buried the report in a deep hole in Brussels until an MEP demanded its release:

One of the problems in the debate about the impact of unauthorized downloads on the copyright industry is the paucity of large-scale, rigorous data. That makes it easy for the industry to demand government policies that are not supported by any evidence they are needed or will work. In 2014, the European Commission tried to address that situation by putting out a tender for the following research:

to devise a viable methodology and to subsequently implement it in view of measuring the extent to which unauthorised online consumption of copyrighted materials (music, audiovisual, books and video games) displaces sales of online and offline legal content, gathering comparable systematic data on perceptions, and actual and potential behaviour of consumers in the EU.

The contract was awarded to Ecorys, a “research and consultancy company” based in the Netherlands that has written many similar reports in the past. The value of the contract was a princely €369,871 — over $400,000. Given that hefty figure, and the fact that this was public money, you might expect the European Commission to have published the results as soon as it received them, which was in May 2015. And yet strangely, it kept them to itself. In order to find out what happened to it, a Freedom of Information (FOI) request was submitted by the Pirate Party MEP, Julia Reda. It’s worth reading the to and fro of emails between Reda and the European Commission to get an idea of how unhelpful the latter were on this request. The European Commission has now released the report, with the risible claim that this move has nothing to do with Reda’s FOI request, and that it was about to publish it anyway.


The European Commission was quite happy to publish partial results that fitted with its agenda, but tried to bury most of its research that showed industry calls for legislation to “tackle” unauthorized downloads were superfluous because there was no evidence of harm. This is typical of the biased and one-sided approach taken by the European Commission in its copyright policy, shown most clearly in its dogged support for the Anti-Counterfeiting Trade Agreement — and of the tilted playing field that those striving for fair copyright laws must still contend with on a regular basis. Sadly, it’s too much to hope that the European Commission’s own evidence, gathered at considerable cost to EU taxpayers, will now lead it to take a more rational approach to copyright enforcement, and cause it to drop the harmful and demonstrably unnecessary upload filter it is currently pushing for.

The study actually showed that illegal downloads BOOSTED legal sales of games, books, and music.

You can see MEP Reda’s comments on this whole perfect storm hypocrisy here .

The Streisand Effect Benefits Us All

I’ve written a bit about the increasingly larcenous and parasitic scientific journal industry.

I have in fact said that the giant of the industry, Elsevier, “Is determined to suck the marrow out of learning, and dance on its bones.”

I have on occasion (first link) noted that there is a site, Sci-Hub, based in Russia, which is making much of the previously paywalled material freely available.

Elsevier has aggressively gone after Sci-Hub in court, with the result that Sci-Hub’s profile and hence access on the internet, has skyrocketed:

Techdirt has been covering the story of Sci-Hub, which provides unrestricted access to a massive (unauthorized) database of academic papers, for a while now. As several posts have emphasized, the decision by the publishing giant Elsevier to pursue the site through the courts is a classic example of the Streisand Effect: it has simply served to spread the word about a hitherto obscure service. There’s a new paper exploring this and other aspects of Sci-Hub, currently available as a PeerJ preprint. Here’s what one of the authors says in a related Science interview about the impact of lawsuits on Sci-Hub:

 In our paper we have a graph plotting the history of Sci-Hub against Google Trends — each legal challenge resulted in a spike in Google searches [for the site], which suggests the challenges are basically generating free advertising for Sci-Hub. I think the suits are not going to stop Sci-Hub.

That free advertising provided by Elsevier and others through their high-profile legal assaults on Alexandra Elbakyan, the academic from Kazakhstan who created and runs Sci-Hub pretty much single-handedly, has been highly effective. The surge in searches for Sci-Hub seems to have led to its holdings becoming incredibly comprehensive, as increased numbers of visitors have requested missing articles, which are then added to the collection: 

As an FYI the Streisand effect is where an attempt to suppress information results in further publicizing and popularizing the data.

Considering the nature of peer reviewed journals, where the publishing houses neither pay the authors, the reviewers, and frequently the editors, and prices have increased largely because of industry consolidation.

If Sci-Hub and its ilk sends these publishers into bankruptcy, the world will benefit.

Headline of the Day

Legal Arguments in “Monkey Selfie” Case Are Bananas at Hearing

Hollywood Reporter

The nut-jobs at PETA are suing to assign copyright to the monkey because, well, QED.

There are some legitimate copyright issues involved with this photo, the photographer is arguing that he holds copyright even though it was a crested black macaque that actually pressed the shutter button.

He has lost to this point, and said crested black macaque, not being a human, has been deemed unable to hold a copyright, so it’s in the public domain.

Of course, PETA saw fit to invite itself to this, and move a marginally interesting point of law into a freak shot, because ……… PETA.

Who Found Pictures of the Registrar of the Copyright Office Engaging in Carnal Congress with a Goat?

After decades of interpreting copyright in the most bone headed and restrictive way possible, the US Copyright Office has come out in favor of a “Right to Repair”.

This means that , which will allow people who own products to repair them, despite licensing terms that lock down the products and attempt to force them to drive them to expensive service arrangements.

John Deer for example, is attempting to force farmers to do even the most basic maintenance on their tractors, oil changes, new spark plugs, etc., at the dealers.

This office literally had to be overruled by an act of Congress, the Unlocking Consumer Choice and Wireless Competition Act, because the office decided that consumers should have no right to unlock the phone that they owned.

I think that what happened was that the interim registrar (the last permanent registrar was fired in part for IP extremism) has realized that some common sense needed to be applied:

Last week, to little fanfare, the US Copyright Office took its first baby steps towards stopping auto-makers wrapping their software in copyright rules.

The decision is important because auto-makers use the Digital Millennium Copyright Act’s “technical protection measures” (TPMs) provisions to restrict diagnosis and repair to an approved ecosystem.

That’s especially galling for farmers in remote locations who have argued that they can’t always wait for a factory rep to okay fixes to agricultural machines, while in the more mundane world of automobile mechanics, legitimate repair shops complain that Detroit uses the DMCA to exert market power.

In a lengthy report (PDF) that also canvasses how exceptions to the TPM rules could apply to accessibility technologies, device unlocking, and library archives, the office proposes legislation that sides at least in part with the “right to repair” lobby.


Since “bona fide repair and maintenance activities are typically non-infringing”, the report suggests using the DMCA to tie up the repair market wasn’t a legitimate use of the law.

Hence “to the extent section 1201 precludes diagnosis, repair, and maintenance activities otherwise permissible under title 17, the Office finds that a limited and properly‐tailored permanent exemption for those purposes, including circumventing obsolete access controls for continued functioning of a device, would be consistent with the statute’s overall policy goals”.

While this sounds like basic common sense, but the application of common sense to IP law has been virtually non-existent over the past 30+ years.

This constitutes a revolutionary shift in culture, even if it is a minor change in policy.

We are finally seeing meaningful push-back against a copyright and patent regime that increases inequality, reduces innovation, and perverts our economy and our society.

But of Course

It turns out that the Australian bureaucracy created to collect fees for content creators has been diverting these fees to lobby against changes in their copyright laws:

Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound — we wrote about one just a few weeks ago — this doesn’t seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia’s copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from:

Australia’s government-mandated copyright collection agency has been diverting payments intended for journalists and authors to a [$11 million] “future fund” to fight changes to the law.

Specifically, the monies come from payments made by educational establishments in order to use orphan works. That’s a major change of the agency’s policy that was not disclosed to the Australian government’s Productivity Commission that oversees this area:

[The Copyright Agency] has been criticised in a Productivity Commission review that is before the government over the transparency of its accounts and its practice of retaining, rather than returning, millions of dollars collected from schools and universities on behalf of the owners of “orphan works” who can’t be traced.

This reinforces a point that I have made on numerous occasions: IP protections are government subsidies through the enforcement of monopoly rents, and are justified only to the degree that they encourage the creation of protected works.

Any amount in excess of this results in parasitic rent seeking, because this is the most effective way to make EVEN MORE money.

Copyright and patent have gone from a way to “To promote the Progress of Science and useful Arts,” to a mechanism that corrupts the political process and hinders progress.

Meanwhile in Germany

A court in Germany has ruled that family members must rat each other out or pay the fines themselves:

Copyright trolls are a plague spreading across the world, one which has received far too little social medicine for the taste of many. This virulent form of rent-seeking tends to put out some of the more despicable strategies, from flatout falsely accusing people of piracy, lying to international students about the punishment for copyright infringement, and threatening those that expose their actions.

But a case that was winding its way through German courts sees copyright trolls there now going even further, winning the argument over whether parents should have to serve their own children up to the courts for copyright trolls.


Levying responsibility for the failure to out one’s own family member is almost comically pernicious. That the court saw fit to route around local laws protecting families from this sort of thing in the name of copyright trolls seems doubly so.

Just f%$#ing lovely.

Way to enforce the stereotypes of the German people, German courts.

Our IP System in One Profoundly Dysfunctional Nutshell

It turns out that American farmers are being forced to use software from Ukrainian hackers to repair their own tractors:

To avoid the draconian locks that John Deere puts on the tractors they buy, farmers throughout America’s heartland have started hacking their equipment with firmware that’s cracked in Eastern Europe and traded on invite-only, paid online forums.

Tractor hacking is growing increasingly popular because John Deere and other manufacturers have made it impossible to perform “unauthorized” repair on farm equipment, which farmers see as an attack on their sovereignty and quite possibly an existential threat to their livelihood if their tractor breaks at an inopportune time.

“When crunch time comes and we break down, chances are we don’t have time to wait for a dealership employee to show up and fix it,” Danny Kluthe, a hog farmer in Nebraska, told his state legislature earlier this month. “Most all the new equipment [requires] a download [to fix].”

The nightmare scenario, and a fear I heard expressed over and over again in talking with farmers, is that John Deere could remotely shut down a tractor and there wouldn’t be anything a farmer could do about it.

A license agreement John Deere required farmers to sign in October forbids nearly all repair and modification to farming equipment, and prevents farmers from suing for “crop loss, lost profits, loss of goodwill, loss of use of equipment … arising from the performance or non-performance of any aspect of the software.” The agreement applies to anyone who turns the key or otherwise uses a John Deere tractor with embedded software. It means that only John Deere dealerships and “authorized” repair shops can work on newer tractors.

“If a farmer bought the tractor, he should be able to do whatever he wants with it,” Kevin Kenney, a farmer and right-to-repair advocate in Nebraska, told me. “You want to replace a transmission and you take it to an independent mechanic—he can put in the new transmission but the tractor can’t drive out of the shop. Deere charges $230, plus $130 an hour for a technician to drive out and plug a connector into their USB port to authorize the part.”

“What you’ve got is technicians running around here with cracked Ukrainian John Deere software that they bought off the black market,” he added.

The affection we have in our society for rent seeking through things like the DMCA (Digital Millennium Copyright Act), and it serves no one but parasites.

In fact, it creates a society based on this parasitism, which crowds out productive activities, and leads to inequality,

We have created a society of Martin Shkrelis, and this is not a good way to be.

Remember, It’s All About Artist

Harry Shearer has launched a $125 million fraud and contract-breach lawsuit against Vivendi and StudioCanal over the 1984 rockumentary classic This Is Spinal Tap. The complaint, filed Monday in California federal court, is packed with enough nuggets to instantly make this a must-watch “Hollywood accounting” case. Through the lawsuit, Shearer also reveals he is attempting to claw back rights to the film and its continually popular soundtrack.

Shearer, perhaps best known for the 23 characters he voices on The Simpsons, co-created the semi-fake band Spinal Tap in the 1970s with Christopher Guest and Michael McKean. The film, directed by Rob Reiner and featuring Shearer as bassist Derek Smalls, was produced and released by Embassy Pictures. After a series of transactions, rights to Spinal Tap landed in the hands of Vivendi, the French conglomerate that once had the ambitious goal of becoming one of the largest studios in the industry.

Despite the film’s legacy and Spinal Tap’s enduring success as an actual band able to sell out arenas, Shearer’s company Century of Progress Productions alleges that the four lead creatives have received just $81 in merchandising income and $98 in musical sales income in the past three decades from the franchise.

According to the complaint, the original 1982 production agreement called for Shearer, McKean, Guest and Reiner to get 40 percent of net receipts. In Hollywood, though, calculating contingent profit participation often triggers disputes that go up to 11. This one certainly did.


“Particularly given that Vivendi has offset fraudulent accounting for revenues from music copyrights against equally dubious revenue streams for film and merchandising rights also controlled by Vivendi subsidiaries, Shearer is concurrently filing notices of copyright termination for publishing and recording rights in Spinal Tap songs he co-wrote and co-recorded, as well as in the film itself,” states the complaint.

$179 after more than 30 years?

Clearly people downloading from the internet are responsible for this.

More Insanity of our IP Regime

Cryptographic expert Matt Green has filed suit in federal court to prevent his arrest if he publishes a text book on encryption:

Assistant Professor Matthew Green has asked US courts for protection so that he can write a textbook explaining cryptography without getting sued under the Digital Millennium Copyright Act.

Green, who teaches at Johns Hopkins University in Maryland, is penning a tome called Practical Cryptographic Engineering that examines the cryptographic mechanisms behind the devices we use every day, such as ATM machines, smart cars, and medical devices. But this could lead to a jail sentence if the manufacturers file a court case using Section 1201 of the DMCA.

Section 1201 prohibits the circumvention of copyright protection systems installed by manufacturers, and comes with penalties including heavy fines and possible jail time. As such, the Electronic Frontier Foundation (EFF) has taken up Green’s case, and that of another researcher, to try to get the provision ruled illegal by the courts.

“If we want our communications and devices to be secure, we need to protect independent security researchers like Dr Green,” said EFF staff attorney Kit Walsh.

The history of prosecutions under section 1201 have been an exercise in the copyright holders studiously avoiding taking cases that they might lose in order to maximize the chilling effect against researchers and consumer advocates, “The US Department of Justice has asked the courts to dismiss the case on the grounds that it is highly unlikely that Green would be prosecuted.”

This chilling effect is why civil rights cases are allowed to proceed even though no one has has been prosecuted, so I find the Justice Department’s argument specious.

We have a clear demonstration of a chilling effect, both for Green and Andrew Huang, who is trying to author an open source operating system.

Of course, the DoJ, and the White House, and most of the US Congress are in the pocket of IP rights holders, it is no surprise that they are opposing the application of common sense to these restrictions.