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Copyright Holder Fighting Fraudulent DMCA Notices on YouTube

Drew Wilson — Tue, 28 Jun 2011 14:07:12 +0000

YouTube has built a reputation for quickly pulling copyrighted material from its servers. Many have argued for years that YouTube pulls content a little too quickly and some have expressed frustration over re-instating content that was wrongfully yanked. One copyright holder, namely the creator of the Nyancat, is finding out how hard it is to undo the damage of a copyright imposter.

BoingBoing is pointing to a story of the trouble one rightsholder is having with material he has created. A DMCA notice was filed against several video's using the NyanCat, the famous poptart cat flying through space. The rightsholder was not happy about the video's, not that they were posted, but the fact that someone is using the DMCA to remove them. Understandably, the rightsholder is upset and has posted the following picture to let everyone know that whoever is taking the video's down via copyright, it was neither the real rights holder nor was it authorized: The owner has received several messages from angry users complaining about the takedown of the video and comments, "people are flagging my videos on Youtube and giving me death threats just like upstanding Internet citizens usually do. Good job." The owner is currently in the process of trying to have the video's re-instated, but complains that YouTube is making the owner jump through all these hoops just to reinstate the video's. Sometimes, I converse with people whether online or offline and I have received numerous funny looks over my belief that copyright has been a tool for censorship. For some, it just doesn't happen or it's an excuse to infringe on copyright. Here, we have a prime example of such a thing happening right now. I think that for other countries considering copyright laws more in line with the US, there are reasons why some demand there be stiff penalties for those who wish to abuse the law in order to take down material they neither own nor have any rights over. What's really sad is the idea that whoever is filing these fraudulent claims will no doubt keep doing so whenever and wherever they please. I don't see there being as many lobbyists out there saying to politicians, "Hey, we got to make sure people don't send fake DMCA notices!" as there are lobbyists saying, "Hey, we need to increase penalties for copyright infringement!" In all, I think this sends a message that free speech does not belong in a society with copyright laws, that free speech is incompatible with copyright. If you really want to have true free speech, do not use an outlet that are shackled by the DMCA. Instead, use overseas services and your video will stand a better chance at surviving censorship whether maliciously or otherwise. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Pirate Party Candidate to Run for Office in Florida

Drew Wilson — Thu, 21 Apr 2011 07:20:38 +0000

America is often seen as a land of the two party system, but other parties to exist in the US. The Florida Pirate Party is currently in the process of being able to run candidates in the Sunshine state.

You've got to admit, it certainly takes courage to be a candidate for a political party hoping to get a seat anywhere - especially when you belong to neither the Democrat or Republican parties. Still, that is exactly what the Florida Pirate Party is currently doing. According to the Florida Pirate Party website, Ryan Moffitt, Chairman of the Pirate Party of Florida has begun his campaign to become the Florida state House Representative from District 86. "Once the paperwork has been certified by the Division of Elections," Moffitt said, "I will be cleared to gather donations, and begin gathering voter petitions to get a spot on the ballot in the 2012 general election." "We have a long road ahead of us on this one. I need 518 Florida voter’s signatures to get on the ballot. I simply can’t do this alone. Facing an incumbent representative of the two party system is no easy task, but with a grass-roots base, and sheer strength of will, I genuinely believe we can make a stand." There is certainly a lot of issues that can be raised in the US. Copyright laws such as the DMCA and warrantless wiretapping are two issues that would suit the Pirate Party well even though such policies are from a different branch of government. But one needs to start somewhere. Moffitt added, "Let this be the beginning of the end of the monopolist copyright industry. Let this be the beginning of the end of back room deals and secret operations. Let this be the beginning of the end of warrantless wiretapping and censorship." "With your help, we can bring the state of Florida into the new digital age, in a free and open manner run by the people, and for the people. We can end the old ideals, and the old guard who believe communication and creation should stay in the domain of ivory towers, marble halls or glass office buildings. The future belongs to us, the people." I'm sure he's got a lot of work ahead of him at this stage. Breaking a two party system would certainly be no easy task. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Doctors Use DMCA to Censor Bad Reviews

Drew Wilson — Sat, 16 Apr 2011 07:27:45 +0000

A company called Medical Justice is reportedly using the DMCA to censor critical reviews of their clients - doctors. In response, some legal experts have set up a website to challenge this practise by allowing bad reviews to be posted on their site instead.

In the midst of the copyright debates, one argument often used by critics is to say that tightening copyright laws opens the doors to general censorship. Sometimes, supporters of tough copyright laws counter that infringing copyrighted material is not a free speech issue and dismiss the whole argument. While some may have a dismissive attitude toward the idea of tough copyright laws as censorship, new developments show that copyright laws are once again being used as a tool for censorship. The story comes from Paid Content. A company known as Medical Justice is using the DMCA to silence critics of doctors. The idea is that doctors make their patience sign a contract that hands over the copyright of any potential review the patient might post online. If that patient decides to post a bad review anyway, Medical Justice can send a DMCA notice which requires that the content be removed quickly. Apparently, this is the quickest way to take down content. Medical Justice has defended the practise by saying that doctors cannot rebut any bad reviews due to doctor patient confidentiality, so using copyright is supposedly to level the playing field. In response, Eric Goldman and UC Berkeley Law Professor Jason Schultz started up a website called Doctored Reviews which aims to explain why the practice of using the DMCA to censor bad reviews likely not only illegal, but unethical. From the website:

Medical Justice’s efforts may be a sign of things to come. Imagine if other companies used similar contracts. Before you get a haircut, before you buy a six-pack of soda at the local grocery store or before you order a meal at a restaurant, imagine you were required to keep quiet and never post your opinion online about the product or service you purchased. Sound ridiculous? It does to us, and we think it’s no less ridiculous when doctors demand this of their patients.

Paid Content notes that one website, Yelp, is refusing to honour such DMCA take-downs while RateMD's has created a "Wall of Shame" for doctors who use such contracts. Sadly, using the DMCA to censor free speech is nothing new. In 2007, anti-creationists were banned from YouTube for copyright infringement. The DMCA notices were apparently issued by creationists not happy with their views. In January of 2008, the director and screenwriter of the film, "Forget About It", sent a DMCA takedown notice to film critic Gregory Conley in an effort to take down a bad review under claims of, among other things, copyright infringement, linking to their website without authorization. In August of 2008, critics of someone claiming to have psychic powers were at the receiving end of a DMCA take-down notice. The motivation behind it was to remove the video debunking the psychic's claims. Later on in the same month, the International Olympic Committee (IOC) used the DMCA to take down a video posted by Students for a Free Tibet. This latest incident is simply another case of copyright laws being used to curtail free speech. It has nothing to do with downloading the latest "blockbuster" movie or a recent top 40 album and everything to do with straight-up censorship. I personally hope that Doctored Reviews isn't going to ultimately hit the nail on the head and predict this sort of activity being the start of a new and disturbing trend, but as we all know, if something can be abused, it probably will be abused. [Hat Tip] Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Joel Tenenbaum’s File-Sharing Appeal Trial Begins

Jared Moya — Wed, 06 Apr 2011 18:08:17 +0000

Harvard Law School student Jason Harrow, argues that Congress never intended to punish individual consumers when it passed the Digital Millennium Copyright Act back in 1998 expressly forbidding people from copying or sharing intellectual property.

Accused file-sharer Joel Tenenbaum finally appeared before the First Circuit of Appeals this past Monday to appeal his conviction for illegally "making available" 30 copyrighted songs. The DMCA makes it illegal to copy or share intellectual property - music, videos, games, software and other materials - without permission, and established penalties of up to $150,000 per individual case of intentional infringement, but his lead attorney, Harvard Law School student Jason Harrow, argued that Congress never intended to punish individual consumers when it passed the Digital Millennium Copyright Act back in 1998. “No one thought the statute would apply to consumer users like this,’’ he said. Tenenbaum was initially fined $675,000, $30,000 per song, but the US District Court Judge Nancy Gertner eventually slashed it to a tenth that amount - $67,500 - for being "unconstitutionally excessive." "I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives." Tenenbaum offered a $21 counter offer, 70 cents for each of the copyrighted songs that would have otherwise went to the record label if he had bought them on iTunes, but the RIAA didn't respond. He called $67,500 "equally insane" and vowed to appeal. It's almost as insane as the $1.5 million judgment against Jammie Thomas for illegally sharing 24 copyrighted songs. Harvard Law School professor Charles Nesson, also representing Tenenbaum, compared Tenenbaum's file-sharing to "willful jaywalking." The RIAA countered that Congress did intend for these types of enormous financial penalties for consumers to deter them from the infringement, especially in the case of illegal downloading because of its "complete undermining of the copyright." Its attorney, Paul Clement, also took Judge Gertner to task for reducing the award so substantially. The problem for many is that million-dollar judgments don't really serve as a deterrent, and a $67,500 judgment might as well be $675,000 or $675 million in this poor economy. After the hearing Tenenbaum boiled the trial down to one succinct question: "Was Congress even aware of file-sharing" when it passed the DMCA? The answer for many is likely no. Nesson has noted in the past that the real problem in all of this is that antiquated copyright laws have yet to catch up to the realities of our digital age. The tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world, is what really must be addressed. Stay tuned. jared@zeropaid.com

New Secret Trade Agreement Could Create Global Three Strikes Law

Drew Wilson — Sat, 12 Mar 2011 13:53:48 +0000

ACTA May not have gone over as well as the US would have hoped, but that doesn't stop any new secret agreement from forming. Among the provisions inside the Trans-Pacific Partnership Agreement (TPP) are increasing the copyright term to a minimum of 120 years, force ISPs to become copyright cops and effectively puts a three stirkes law in place.

The document was leaked recently and says that "The text is marked to be "protected from unauthorized disclosure," and the USTR is seeking to classify the document until four years from entry into force or the close of the negotiations." One of the controversial provisions is as follows:

3. For the purpose of providing enforcement procedures that permit effective action against any act of copyright infringement covered by this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies that constitute a deterrent to further infringements, each Party shall provide, consistent with the framework set out in this Article: (a) legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; (b) limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this subparagraph (b) [...] (iii) Qualification by a service provider for the limitations as to each function in clauses (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function, in accordance with the conditions for qualification set forth in clauses (iv) through (vii). [...] (vi) Eligibility for the limitations in this subparagraph shall be conditioned on the service provider: (A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers;

It gets even worse. It also compels ISPs to start censoring websites too:

(viii) If the service provider qualifies for the limitations with respect to the function referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary, provided that such other remedies are the least burdensome to the service provider among comparably effective forms of relief. Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the judicial authority. [...] (xi) Each Party shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

In short, as long as there is proceedings in a court, then the ISP must censor a given website - not necessarily that a website is found guilty of copyright infringement, but merely is accused of copyright infringement. What this opens the door to is rights holders accusing a massive number of websites of copyright infringement, forcing ISPs to censor all the websites in question. Of course, a proxy would be one way of getting around censorship, but the thought of an accusation of infringement can disable access to a website should be disturbing for those who support free speech given that false accusations aren't uncommon to begin with. Added to this is that claims of copyright infringement are, if this agreement goes in to effect, completely bi-passing the legal system. Even the DMCA in the US didn't go this far. In the US, an IP address needs to be subpeonad by a court before identifying information can be retrieved from an ISP. Under the IPP, that legal step wouldn't be necessary. All the rights holder has to do is demand the identities of alleged copyright infringers and the ISP must comply with the rights holder. It's merely the removal of a layer of due process. What's worse is that this agreement would increase the length of a copyright term to over 120 years or 70 years after the authors death:

5. Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated: (a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death; and (b) on a basis other than the life of a natural person, the term shall be: (i) not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or (ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from the end of the calendar year of the creation of the work, performance, or phonogram.

For a number of countries, the life plus 50 years wouldn't be long enough, so a number of works that are falling in to the public domain would be ripped back out of the public domain again because of the 20 year extension. Personally, what I find offensive more than anything else in this agreement is the fact that this lawmaking is considered classified. Why are these negotiations that would change criminal codes being kept in secret? Are these laws so bad that they must be hidden from public view to avoid public scrutiny? It's really little more than circumventing democracy. One of the points of democracy is that everyone has a say in any lawmaking issue. If a person wants to be critical about a copyright law, they are free to do so. Censoring people outside of agreements like this has the potential to cut off dissenting voice, thus turning such laws into a dictatorial process. Looking at what is happening in some countries in Africa, that isn't exactly the most popular kind of thing in the world. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

ACTA Leaks Again – Our Review of the August 2010 Copy

Drew Wilson — Mon, 06 Sep 2010 22:27:15 +0000

While the US is doing everything they can to block transparency of the text, the draft text has, once again, been leaked. We reviewed the text and are commenting on the provisions of this controversial text.

There's a number of discussion points surrounding ACTA. They include whether or not police can seize your iPod at the border on suspicion of copyright infringement, if police enforcement is being diverted to serving corporate interests and if this would usher in a three strikes law. We reviewed the leaked document (PDF) and tried to answer some of these burning questions lingering out there. If you don't want to read through out detailed analysis, you can simply skip to the bottom of the article for our summary. Damages and Fees The first interesting provision we found comes from article 2.2 where paragraph one says the following:

1. Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of {intellectual property rights} {copyright or related rights, or trademarks}, to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.

2. {At least} in cases {EU/CH: of intellectual property rights} {of copyright or related rights infringement and trademark counterfeiting}, each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder the profits of the infringer that are attributable to the infringement. A Party's legal system may presume the profits of the infringer to be the amount of damages referred to in paragraph 1.

Judging by these two paragraphs, damages include all profits made off of alleged copyright infringement and statutory damages over top of it. So if you downloaded Photoshop and created a piece of artwork from it, then made 10 dollars from it and Adobe finds out about this, you would be liable for 10 dollars plus statutory damages.

5. Each Party shall provide that its judicial authorities, where appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of {intellectual property rights} {copyright or related rights, or trademarks}, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney's fees or any other expenses as provided for under that Party's domestic law.

This is an interesting provision because it appears to go both ways in terms of court costs. If the RIAA sues an individual and loses, they are obliged to pay for court costs and attorney fees. Before, lawyers would have to argue for these costs (sometimes successfully, sometimes not) to be reimbursed by the losing party. Now it would be enshrined in law if this were to go through. Border Measures This was one of the more controversial issues in the agreement, so it's interesting to see how it has evolved:

1. This section sets out the conditions for action by the competent authorities when goods are suspected of infringing intellectual property rights, within the meaning of this agreement, when they are imported, exported, in-transit or in other situations where the goods are under customs supervision. 2. For the purposes of this section, "goods infringing an intellectual property right'' means goods infringing any of the intellectual property rights covered by TRIPS.12 However, Parties may decide to exclude from the scope of this section, certain rights other than trademarks, copyrights and GIs when [not protected exclusively by copyright and trade mark systems and] [protected by [non-product- or sector-specific [registration] sui generis systems.]}

While surprising, a later section related to personal luggage reads as follows:

2. Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers' personal luggage.

I think supporters who say that border officers won't search your iPods under this agreement is not being honest judging by the language of this agreement. If this agreement wraps up this month like they say they will, then this provision is ultimately to the discretion of each individual country. As far as the US is concerned, for example, the RIAA may say that this exception is not necessary to satisfy compliance with ACTA, and thus, usher in an era where you could have your laptop, iPad, iPhone, iPod, cell phone, MP3 player, etc. searched at the border. If you think ACTA will do nothing to the US, this provision alone says otherwise. For further clarification of the scope mentioned TRIPS agreement, one can find the following in the TRIPS scope:

Article 14 Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations 1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance. 2. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.

So music is, indeed, covered in the scope of the TRIPS agreement. So, overall, the so-called "myth" that your iPods will be searched at the border is confirmed. Criminal Enforcement This is another hot button topic with regards to ACTA, so what does this section (2.14) say?

1.22 Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.

So, it sounds like criminal enforcement applies to commercial related infringement which isn't so bad because few people find physical commercial piracy acceptable. Is it limited to that? The answer is "no".

3. [US/J/Kor/Can: Each Party shall [Mor/NZ/Mex: may] provide criminal procedures and penalties in appropriate cases for the unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public.]

So, while this section is still in dispute amongst negotiators, this agreement says that if you download a movie, rather than this being a civil issue, it's now a criminal issue. This is way more strict that what the US law provides where non-commercial copyright infringement in general is a civil matter, rather than a criminal factor. ACTA changes that. Europe, New Zealand, Singapore and China argues that this paragraph should be deleted. ISP Subpoena's I found this a bit concerning:

4. Each Party may provide, in accordance with its laws and regulations, that its competent authorities have the authority to order an online service provider to disclose expeditiously the information of the relevant subscriber to the right holders, who have given legally sufficient claim with valid reasons to be infringing their {US: copyright or related rights}{J/EU: intellectual property rights}. [US/J/NZ: Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder, or to a person authorized by the right holder,31 information sufficient to identify an alleged infringer, where that right holder has filed a legally sufficient claim of infringement of {US: copyright or related rights}{J/EU: intellectual property rights} and where such information is being sought for the purpose of protecting or {enforcing the right holder's {US: copyright or related rights}{J/EU: intellectual property rights}.]

The part I found concerning was towards the beginning where the language says specifically, "competent authorities". So the question is, what does ACTA mean when it says "competent authorities"? Looking up the definition at the beginning, ACTA states:

competent authorities includes judicial, administrative, or law enforcement authorities as may be appropriate in the context and in the laws of each Party;

Why are we suppose to devote local enforcement resources towards enforcing the commercial interests of a few industries when the alleged harm due to copyright infringement is, at worse, in dispute and completely inaccurate at best? Shouldn't police be allowed to pursue real crime like murder instead? I can't think of one instance where police have unlimited resources. I personally think that it's inappropriate to legally force law enforcement to tow a specific corporate line - especially after police expressed reluctance to enforce non-commercial internet copyright law. Anti-circumvention This is a section that suggests the exportation of the DMCA to the rest of the world:

5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures32 that are used by [Kor/US/CH/Aus/J/Sing/NZ: at least] authors, and [US: performers] and producers of phonograms in connection with the exercise of their [US/Kor/NZ: copyright [US/KOR: or related] rights [Can/EU/CH: under the WCT and WPPT] and that restrict acts in respect of their works, [performances] [Can: fixed in phonogram], and phonograms, which are not authorized by the authors, the [performers] or the producers of phonograms concerned or permitted by law. [6. US/NZ/J: In order to provide such adequate legal protection and effective legal remedies, each Party shall provide protection at least [EU/J/CH: in appropriate cases of the following activities] [J/EU: to the extent provided by its law]33 against: (a) the unauthorized circumvention of an effective technological measure [US/Sing/Aus: that controls access to a protected work, performance or phonogram and is] carried out knowingly [US: or with reasonable grounds to know]; and [NZ/EU/CH: propose to keep chapeau, delete(a)] (b) the manufacture, importation, [or] distribution [US/NZ: of, or provision of] a device, product, [US/Sing/Ch [US: technology] or service] [J/EU: that is capable of circumventing an effective technological measure and is either:] (i) primarily designed or produced for the purpose of circumventing an effective technological measure; or (ii) has only a limited commercially significant purpose other than circumventing an effective technological measure.]; and (c) the offering to the public by marketing of a device, product, or [US/Sing/CH: [US: technology] or service] as a means of circumventing an effective technological measure.] [J: propose to delete (c).] [Note to legal reviewers: (a), (b) and (c) are meant to be three separate items for which protection should be provided.] [EU reserves its position on article 6.]

It's nice to know that there is definite signs of dispute over this because one proposition is to have anti-circumvention laws with absolutely no exceptions (so even the US anti-circumvention laws would be significantly altered to be much more strict) I also note that ACTA has no one proposing some of the exceptions previously enjoyed by several countries like circumvention for archival purposes and computer security purposes. ACTA appears to lack such exceptions, only to say that exceptions can be made so long as it doesn't interfere with those provisions. If anyone says that ACTA restricts human rights, they are definitely correct. It only gets worse:

7. [US/Sing/NZ/Aus: Each Party shall provide that a violation of a measure implementing paragraph (5 and 6) is an independent unlawful activity that does not require [J: any other] [US/Sing/NZ/Aus: an] infringement of copyright {US/Sing/Aus: or related rights}.34] [EU proposes deletion of paragraph 7.]

Again, it's comforting to know that this is in dispute. What this would do is effectively reverse a court decision in the US which says that the mere act of circumvention is not an infringement:

"Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act's) anti-circumvention provision," Judge Garza wrote for the New Orleans-based court.

ACTA would reverse this, overriding what has been ruled in a legal court of law. Chapter 3 To further burden police, ACTA contains the following:

1. Each Party shall encourage the development of specialized expertise within its competent authorities responsible for enforcement of intellectual property rights. 2. Each Party shall promote collection and analysis of statistical data and other relevant information concerning infringements of intellectual property rights as well as collection of information on best practices to prevent and combat those infringements. 3. Each Party shall, as appropriate, promote internal coordination among, and facilitate joint actions by, its competent authorities responsible for enforcement of intellectual property rights. 4. Each Party shall endeavor to promote, where appropriate, the establishment and maintenance of formal or informal mechanisms, such as advisory groups, whereby its competent authorities may hear the views of right holders and other relevant stakeholders.

Again, I don't see why we should be diverting police resources from their efforts to solve real crimes towards towing the corporate line. Why is the system before not good enough where all rights holders have to do is complain about copyright infringement and action takes place as a result? Technical Assistance There's a theme in all of this continuing here:

1. Each Party shall endeavor to provide on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving enforcement of intellectual property rights for Parties to this Agreement and, where appropriate, for prospective Parties to this Agreement. Such capacity building and technical assistance may cover such areas as: (a) enhancement of public awareness on intellectual property rights; (b) development and implementation of national legislation related to enforcement of intellectual property rights; (c) training of officials on enforcement of intellectual property rights; and (d) coordinated operations conducted at the regional and multilateral levels.

Basically, ACTA is practically trying to create an international copyright police force. How is copyright infringement more important than, say, human trafficking? Creation of an ACTA Committee I found this to be interesting:

1. The Parties hereby establish the ACTA Committee and each Party shall be represented on that Committee. 2. The Committee shall: (a) review the implementation and operation of this Agreement; (b) consider matters concerning the development of this Agreement (c) consider in accordance with Article 6.4 any proposed amendments to this Agreement; (d) approve in accordance with Article 6.5.2 the terms of accession to this Agreement of any Member of the WTO seeking to become Party to this Agreement; and (e) consider any other matter that may affect the implementation and operation of this Agreement. 3. The Committee may decide to: (a) establish ad hoc committees or working groups to assist the Committee in carrying out its responsibilities under paragraph 2, as well as, upon request, to assist prospective parties in joining this Agreement; (b) seek the advice of non-governmental persons or groups; (c) make recommendations regarding implementation and operation of the Agreement, including endorsing best practice guidelines related thereto; (d) share with third parties information and best practices on reducing intellectual property rights infringements, including techniques for identifying and monitoring piracy and counterfeiting; and (e) take such other action in the exercise of its functions as the Committee may decide.

Judging by the wording, if ACTA isn't sufficiently bad, rights holders can pressure this committee to make ACTA worse than what the text can be. In other words, this is the backdoor to an international three strikes law which has failed so spectacularly in France so far. So while a three strikes law isn't explicitly in this agreement yet, it can be in the future. This provision is particularly relevant in that case:

6. The Committee shall convene at least once every year unless the Committee decides otherwise. The first meeting of the Committee shall be held within a reasonable period of time after entry into force of this Agreement,

Escaping ACTA This is somewhat interesting. If a country decides that ACTA just isn't working out for them, it'll take 180 days after written notification to get out of ACTA a per the following provision:

A Party may withdraw from this Agreement by means of a written notification to the Depositary. Such withdrawal shall take effect 180 days after the notification is received by the Depositary.

Our Summary We set out to find out for ourselves whether some of the rumors we are hearing about are true or not as per the latest leaked document. A lot of them have been confirmed: 1. ACTA would have border security search your iPod - Confirmed dependent on the discretion of a given party 2. ACTA would divert police resources to enforcing copyright (both commercial and non commercial related) - Confirmed 3. ACTA would force countries to enforce a three strikes law - Confirmed via a backdoor provision 4. ACTA would send you to jail for downloading copyrighted material for non-commercial purposes - Confirmed for movies based on the criminal enforcement language 5. ACTA would push a global DMCA - Confirmed 6. ACTA would further restrict even American copyright laws - Confirmed 7. ACTA goes beyond the DMCA and further restricts copyright law - Confirmed 8. ACTA severely hampers human rights - Confirmed 9. ACTA goes beyond counterfeiting and deals with the much broader concept of copyright and intellectual property - Confirmed 10. ACTA representatives have mislead the public - Confirmed Ultimately, it boils down to, "What awful things have you heard about ACTA?" and chances are, it's true. Further reading: Michael Geist - ACTA Text Leaks: U.S. Concedes on Secondary Liability, Wants To Go Beyond DMCA on Digital Locks Slashdot: ACTA Text Leaks; US Caves On ISPs, Seeks Super-DMCA Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Don Henley: “Eliminate or Drastically Limit Safe Harbor Provision”

Jared Moya — Mon, 30 Aug 2010 08:12:47 +0000

Famed Eagles singer says that without fixing the current Safe Harbor provision of the Digital Millennium Copyright Act (DMCA) copyright holders are "left with the unjustifiable and oppressive burden of constant policing" practically every site on the Internet, and complains that digital music retailers "bullied" the record industry into getting rid of DRM.

Don Henley, the famed Eagles singer best known for the lead vocals on hits like "Desperado", "Witchy Woman", and "Hotel California," is apparently upset with the current state of copyright law in this country and thinks it's high time Congress did something about it. His first complaint is that the US Copyright Office, in his opinion, "clearly has not been a strong enough advocate for copyright owners, particularly when you look at its most recent decisions." I'm not sure what he means by "most" recent, but the most recent decision it made this year was when it legalized DVD encryption circumvention for educational purposes, phone jailbreaking to run legally acquired programs or to run on a different network, circumvention of video game encryption for security flaw testing, cracking computer programs protected by dongles when they malfunction or become obsolete, and the ability to bypass ebook controls that prevent them from being read aloud. Surely he can't believe these are bad things, or does he? Henley thinks the poor decisions it makes are because of the fact that the Copyright Office is part of the Library of Congress, and therefore subject to an "inherent conflict of interest" being that the former is responsible for regulating or restricting access, and the mission of the latter is that of a library which is to "provide free access to the public." "Perhaps the time has come to separate these institutions so that they are not at cross-purposes," he tells Rolling Stone. "After all, the Patent and Trademark Office is part of the Department of Commerce and, since U.S. music, film and other creative copyrights comprise one of our country’s most lucrative sectors, here and abroad, moving the Copyright Office under Commerce Department’s umbrella might be the most effective way of enforcing the law." But, it's unclear why he thinks it's not enforcing the law. Everywhere you turn copyright holders seem to be a pretty good job of seeking redress for infringement in the courtroom, some to the extreme. Is he asking that it become more proactive and police the Internet for them? What Henley really seems to think is that the music industry needs more policeman on the Internet, that each site should be held liable for illegally hosting copyrighted material even if they're not the ones responsible for making it available in the first place, or are unaware that it's even there without prior notification. He wants sites to police themselves at the risk of costly fines. That's right, he wants to gut the Safe Harbor provision of the Digital Millennium Copyright Act (DMCA) to accomplish that goal. "Congress should amend the Digital Millennium Copyright Act (DMCA), eliminating or dramatically limiting the Safe Harbor provisions so that ISPs [Internet service providers] and websites such as YouTube, MySpace and Facebook have legal liability for hosting infringing content," he continues. "Just as distributors and retailers have equal liability under the law for distributing and/or selling bootleg or infringing music, films, software, and other intellectual property, so should online companies bear similar liability at law." Never mind the distinction that ISPs and websites aren't consciously distributing copyrighted material illegally for commercial gain. They remove it when notified and in some cases, like that of YouTube, actively filter the site of copyrighted material. That's hardly the case of vendors peddling bootleg DVDs. The intent of the Safe Harbor provision is to make sure that online service providers (OSPs) can't be held liable for everything any user does without its knowledge, for without it the result would be a very different Internet than the one we know. Henley complains that copyright holders have had the "unjustifiable and oppressive burden of constant policing" OSPs with little to show for it other than "embittering" music fans and making users of sites like YouTube angry. He's right there, but even if the sites did police themselves music fans and site users would still be smart enough to know who's really to blame. YouTube isn't taking down Prince videos because it wants to - it's being TOLD TO! Probably the craziest thing Henley says in the interview is that the music industry was "bullied by online retailers into removing protective measures, such as DRM, from their sound recordings or else facing the prospect of these retailers refusing to distribute their catalogs." If by online retailers he means Apple, then he'd be wise to thank them instead for having managed to do what it couldn't - create a viable digital music store that passed the 10 billion-sold mark this past February. Aside from this, there's the pesky fact that DRM was an absolute nightmare for music fans, and was easily circumventable anyways. Apple iTunes purchases could only be played on up to five PCs and wouldn't play on rival portable music devices like Microsoft's Zune, and vice versa. Each retailer had their own “top to bottom” DRM systems for selling, playing and protecting music. Without a universal system in place it was always doomed to failure. It was a nightmare as many of you I'm sure recall, and is why Steve Jobs "bullied" the music industry in calling for an end to DRM. If he's so concerned with DRM then how about locking up CDs as well? It seems odd to be concerned with digital music DRM while selling tens of billions of unprotected CDs. The simple answer is that DRM has never worked to halt music piracy and never will. The death of DRM has not, as Henley adds, "increased the theft of music and other intellectual property," but rather, in my opinion, increased legal consumption because it makes it easier to purchase and consume content in ways of your own choosing. People don't want to be locked into a top down system where the media player they buy then determines where, when, and how they can consume content. If you buy a digital song or movie is it so unreasonable to want to play it where and when you want? At least he doesn't think the Internet has "destroyed rock" like Stevie Nicks does. Stay tuned. jared@zeropaid.com

Viacom Appeals YouTube Court Ruling

Drew Wilson — Fri, 13 Aug 2010 04:00:51 +0000

Last month, YouTube prevailed in the Viacom vs. YouTube case. Under the ruling, YouTube does indeed qualify for the DMCA safe harbor provision. Today, Viacom served notice that they are appealing the ruling, but didn't specify how they plan on doing so.

The Viacom vs. YouTube case has been a long and drawn out case. With todays revelation that Viacom plans on appealing the ruling, it means that the case is not over yet. The case wasn't void of dramatic revelations. Accusations flew with Viacom saying that Google dragged its feet on copyright complaints while Google said that Viacom secretly uploaded video clips from their own content. Last month, Judge Stanton ruled that YouTube is not liable for copyright infringement and doesn't have to pay the $1 Billion sought by Viacom. Many observers feared that if Viacom was successful, it would put a major chilling effect on online innovation by dissuading entrepreneurs from creating anything online that could theoretically be used for copyright infringing purposes. I'd argue that if Viacom was successful, it would push even more businesses off shore for fear they could be put out of business by incumbent industries - either way you slice it, it would have been very bad for business. One of the points that worked against Viacom was that when Viacom sent 100,000 DMCA complaints, most of the videos were removed by the next business day. Modestly speaking, it didn't exactly help build a case for Viacom against YouTube. Fast forward to today, reports are surfacing that Viacom plans on appealing. The company recently gave notice that they plan on appealing the case, but on what grounds specifically remains to be seen. A Betanews report shows that Viacom is still sticking to their opinion that YouTube, in spite of having a DMCA notice and takedown system in place and responding to complaints quickly, is making a business out of infringing content. From the report:

"We are disappointed with the judge's ruling, but confident we will win on appeal," general counsel Michael Fricklas said at the time. "It is and should be illegal for companies to build their businesses with creative material they have stolen from others."

Whether or not the Fricklas is ignoring the fact that YouTube has secured deals in the past with major companies to distribute content legally or the fact that YouTube is mainly user generated is unclear. It'll be interesting to see how, or even if, Viacom comes up with anything new in their appeal or if they'll rely on typical copyright industry rhetoric. In any event, the case is not looking good for Viacom at this point and it might require a small miracle to get a judge to overturn the original ruling. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Battle.net Going Down Forces Hundreds of Gamers from Their Games

Drew Wilson — Fri, 06 Aug 2010 03:59:20 +0000

What happens when Battle.net goes down? Several users found out yesterday that they end up being no better off than those that snagged pirated versions of games like StarCraft 2.

"How do I play when Battle.Net is down?" Asked one Battle.net user. The answer came from another, "you don't" That was just a small sampling from a thread off of the battle.net forums. It is the latest example of how copy protection hurts legitimate users. Amusingly, this happened just shortly after PCPro said how StarCraft 2 was pirate free (which is not if you know about the release group "Reloaded" as well as razor1911) Still, this centralization did not happen by accident. Blizzard has been fighting against unauthorized gaming servers for years. In World of Warcraft's terms of service, it explicitly states:

2. Additional License Limitations. The license granted to you in Section 1 is subject to the limitations set forth in Sections 1 and 2 (collectively, the "License Limitations"). Any use of the Service or the Game Client in violation of the License Limitations will be regarded as an infringement of Blizzard’s copyrights in and to the Game. You agree that you will not, under any circumstances: A. use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the World of Warcraft experience;

In 2008, Blizzard shut down several unauthorized gaming servers saying that it was a DMCA violation. Actions such as this has even sparked a petition which came close to collecting 3000 signatures. So now we have a situation where if one server service goes down, many cannot play their games they more than likely legally paid for as far as StarCraft 2 is concerned (since the cracked versions cannot play multiplayer yet). When Battle.net goes down like what happened yesterday, users are no better off than those that have cracked versions of their games. Why doesn't Blizzard allow for private servers then? If it is possible to make multiplayer service more reliable, then why not allow for private servers? If it's cheating that is a concern, then maybe Blizzard needs to put some server-side software that would stop such things from happening. It's clear people are more than happy to run these servers without charging Blizzard for service fees. Ultimately, there is only two possible outcomes for DRM - either it screws over legitimate customers or it is completely useless. I've yet to see a case where it is neither and you can bet I've seen a fair share where it is both. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

American Anti-Circumvention Laws Becoming More Liberal?

Drew Wilson — Tue, 27 Jul 2010 07:22:36 +0000

The US might be one party pushing for tougher copyright rules internationally through ACTA (Anti-Counterfeiting Trade Agreement), but the laws surrounding anti-circumvention appear to be getting looser these days. It may very well be a sign that the toughest anti-circumvention rules around might not be in everyone's best interest.

ACTA, about two weeks ago, made headlines over its more recent leak. We did a quick read-through at the time and discovered some very tough anti-circumvention laws embedded in the text. While the US is, no doubt, pushing for tougher copyright rules abroad, it makes the two latest developments on anti-circumvention laws within the US all the more interesting. According to the Courthouse News Service on Friday, a court ruling found that the mere act of breaking a digital lock is not, in and of itself, an infringement. From the report:

"Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act's) anti-circumvention provision," Judge Garza wrote for the New Orleans-based court. "The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."

This is a very interesting court ruling even though it relates to physical devices from General Electric. Coincidentally, though, new rules surrounding copy protection was issued by the Librarian of Congress at the US copyright office. During a review thanks to Section 1201, the ruling designates six new classes of non-infringing activities:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: (i) Educational uses by college and university professors and by college and university film and media studies students; (ii) Documentary filmmaking; (iii) Noncommercial videos (2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. (3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. (4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if: (i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and (ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law. (5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and (6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

CrunchGear commented that this essentially means that it's not illegal to bi-pass the CSS of a DVD for the purpose of Fair Use. They also suggested that this ruling also means that it is no longer illegal to jail-break your phone. Overall, though, it's really nice to see something legally happen that seems to give American citizens a little breathing room. A positive development in American law that favors regular citizens, particularly in copyright related issues, really doesn't happen that often with all the copyright term extensions just being handed to big copyright corporations to name one example. Apple Furious With Development It's no surprise that some companies are furious with this development. Apple is furious (PDF - hat tip CNet) over this news, saying in a statement that they oppose this new development with regards to cell phones. "Apple is opposed to the proposed Class #1 exemption because it will destroy the technological protection of Apple’s key copyrighted computer programs in the iPhone™ device itself and of copyrighted content owned by Apple that plays on the iPhone," Apple said in a statement, "resulting in copyright infringement, potential damage to the device and other potential harmful physical effects, adverse effects on the functioning of the device, and breach of contract. The proponents of the exemption have also not satisfied their burden of proof of showing harm to non-infringing uses of the copyrighted works protected by the technological protection measures on the iPhone. In addition, because Congress has already explicitly addressed circumvention for interoperability in Section 1201(f) of the Digital Millennium Copyright Act (DMCA),4 the Copyright Office should not create interoperability exemptions outside that statutory structure, at least without a clear showing of specific and significant harm, which has not been put forth here." Let's face it, the law is not stopping people from jail breaking their phones. The only thing the law does is create more copyright criminals who feel that their rights with what they legally pay for is far too narrow. In fact, according to PCMag, Apple is enjoying record breaking profits:

Apple reported a net profit of $3.25 billion on revenue of $15.7 billion, both of which shot up dramatically from a year ago, when Apple reported profits of $1.83 billion on revenue of $9.73 billion.

So really, cry me a river. It's not like Apple can't weep on spare thousand dollar bills laying around the office. EFF Welcomes the Move The Electronic Frontier Foundation (EFF) is currently applauding this development, calling this a victory for people who would otherwise be sued for what would otherwise be considered fair use activities. "By granting all of EFF's applications, the Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," said Jennifer Granick, EFF's Civil Liberties Director. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach." "Copyright law has long held that making programs interoperable is fair use," confirmed Corynne McSherry, EFF's Senior Staff Attorney. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability." "Noncommercial videos are a powerful art form online, and many use short clips from popular movies. Finally the creative people that make those videos won't have to worry that they are breaking the law in the process, even though their works are clearly fair uses. That benefits everyone — from the artists themselves to those of us who enjoy watching the amazing works they create," added McSherry. As for the phone jailbreaking exceptions: "The Copyright Office recognizes that the primary purpose of the locks on cell phones is to bind customers to their existing networks, rather than to protect copyrights," said Granick. "The Copyright Office agrees with EFF that the DMCA shouldn't be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers. The DMCA also shouldn't be used to interfere with recyclers who want to extend the useful life of a handset." Overall, it sounds like a very positive development within the US. There's actually a new hint of fairness within one of the most controversial copyright law in the world, the Digital Millennium Copyright Act (DMCA). Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.