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From the heroic Electronic Frontier Foundation:

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

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

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

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

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

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

Cross-posted at RedStateElectic.

From Against Monopoly:

Tom Cruise May Face Legal Action Over Hitler Globe reports that the collector who bought the famous "Hitler's globe" may sue for use of a likeness of the globe in Cruise's recent film Valkyrie, "the thriller about a real-life plot to assassinate Hitler." The article reports that in "2007, Pritikin paid $100,000 for the globe and had its likeness copyrighted to keep it from being used in propaganda by sick neo-Nazi groups." Whew, what a relief!

How is it even possible to copyright something you did not create, but purchased?

Yesterday, reports started to trickle in that the Zune 30 GB, a media device sold by Microsoft, was failing everywhere at once. Fans and users have dubbed it the Y2K9 bug.

From Gizmodo:

Apparently, around 2:00 AM today, the Zune models either reset, or were already off. Upon when turning on, the thing loads up and... freezes with a full loading bar (as pictured above). I thought my brother was the only one with it, but then it happened to my Zune. Then I checked out the forums and it seems everyone with a 30GB HDD model has had this happen to them.

Thankfully, a fix has already been posted by Microsoft. That is, simply wait until January 1st, 2009.

But this incident should be a wake-up call, according to Copyfight.

This should be a clarion warning that using proprietary hardware or software (DRM) to restrict peoples' ability to manage their legally owned content is a bad plan. We are all at the mercy of whatever bugs and bad business plans lie behind these locks.

DRM, or Digital Rights Management, are access controls technologies used by publishers, hardware companies, and content creators to restrict the usage of media, files, or data they sell to consumers. DRM goes beyond copy protection (prevention of unauthorized copying). It restricts what devices the files can be accessed with, what applications it can be used, how many copies can be made, how many times something can be used. DRM locks are innocuous enough as many of them are easily broken, if it were not for the fact it is back by the full power of the state apparatus under the draconian Digital Millennium Copyright Act (DCMA) that makes anyone that attempts or succeeds in circumventing these locks a criminal.

Cross-posted to RedStateEclectic.

Posted Fri, Jan 2 2009 1:35 AM by aheram | with no comments
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The New York Times is being sued by GateHouse Media, a publisher of mostly small, local newspapers, for copyright infringement over its linking and aggregation practices in its Boston Globe online unit.

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

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

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

LINK TO THE ARTICLE >>

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

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

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

Cross-posted to Red State Eclectic.

A collection of links related to copyright, copyfight, and copyfascism.

On Reddit:

On Delicious:

I have been reading The Technology Liberation Front (libertarians critiquing developments in the fields of the internet and technology) and came across Tim Lee's repost of the popular webcomic XKCD regarding End-User License Agreements (EULA) with a question, "Legally enforceable?"

Wendy Grossman explained the legal gray area that surrounds every EULA software companies use for their softwares:

If you did read the terms, you might be surprised. Eulas typically specify that the software's publisher is not liable if anything goes wrong. They typically specify the publisher's preferred jurisdiction for legal disputes. And some are even more restrictive: some graphics packages have been known to specify that they cannot be used in the production of pornographic images. Yet these licences are, as Hanlon complained, not really contracts: you generally cannot read them before you buy (rather than use) the software, and you can't negotiate terms.


I have tackled the question before in Copyfascism Watch, where I raised another point that EULAs are not voluntary contracts as they are not agreed upon prior to the purchase of the software. And there is the bizarre claim by manufacturers that consumers are merely purchasing the physical CDs and not the software it contains. I asked, "How legitimate are the claims of manufacturers that consumers are merely buying the CDs and not the permission to install and use the software for which the consumer (rightly, I might add) believed he is paying?"

Jeffrey Tucker of the Mises Blog responded:

[R]estrictive covenants do this all the time with houses for example. You buy the house in a particular neighborhood and it is really yours, but you can't paint your shutters pink and you have to mow your grass and can't leave a sofa on the porch etc. Why can't EULAs amount to a sort of covenant?


In the Mises Blog, Tucker also asked this question, "Are EULAs contrary to property rights?" Tucker seems to be of notion that is similar to a covenant, but therein lies the issue and the difference between physical property covenants and EULAs: covenants are known and agreed upon prior to purchase, EULAs are hidden contracts that is then revealed to you after the purchase.

A commenter named PR raised the same point:

Since the EULA isn't revealed until after the buyer has handed over his money, of course it shouldn't be considered a valid agreement. All the examples of convenants I know of are presented to the buyer before the sale, but a EULA is more like a legal Trojan horse that restricts the use of property one already owns.


Many of the responses seem to miss that point and the important issue regarding this unconscionable agreements: it is secret, it is hidden, and cannot be agreed to prior to purchase. A commenter pointed out that you can always return the software, but most stores I purchase software from only have a return-policy for unopened boxes of software. Of course, one can argue that one can choose not to patronize the store that has taken one's money for a software crippled by an agreement one cannot agree to prior to purchase and afterwards, but since when do libertarians make excuses for theft?

Cross-posted to Red State Eclectic.

Posted Tue, Dec 2 2008 1:38 AM by aheram | 4 comment(s)
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From The Sydney Morning Herald:

Babies with a severe form of epilepsy risk having their diagnosis delayed and their treatment compromised because of a company's patent on a key gene.
It is the first evidence that private intellectual property rights over human DNA are adversely affecting medical care.
Deepak Gill, head of neurology at the Children's Hospital at Westmead, said he would test at least 50 per cent more infants for the SCN1A gene - which would diagnose the disabling Dravet syndrome - if the hospital could conduct the test in-house.
But rights to the gene are controlled by the Melbourne-based Genetic Technologies, which has already threatened to stop public hospitals testing for breast cancer gene mutations, and the hospital will not risk a similar problem.
Specialists are sending blood samples to Scotland, and only babies whose seizure patterns closely resemble Dravet syndrome are tested. This means children with slightly different symptoms may be treated with the wrong medicines for months, potentially retarding their development.
"It's frustrating that we can't get the test done readily," Dr Gill said. "If we could include it as part of the work-up, we could identify them early."
LINK TO THE NEWS ARTICLE >>

Government-mandated monopolies abridge many rights, whether it be our private property rights, our free speech rights, and others. However, this case is particularly odious, for the government has granted monopoly to a corporation on key genetic code that exists in some people. And these corporations, utilizing the government's capacity for violent coercion, is enforcing that monopoly and abridging on the very ownership of people's bodies. The Australian government has decided, through its decision to grant private entities patents on genetic code, that Australians only have co-ownership of their bodies.

A collection of links related to copyright, copyfight, and copyfascism.

On Reddit:

On Delicious:

 

Posted Fri, Nov 28 2008 6:17 PM by aheram | with no comments
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Thirty-four of the biggest names in the entertainment industry has declared war on Australia's third-largest internet service provider (ISP) iiNet in a suit that claims that the broadband provider is partly responsible for its users' breach of copyright laws:

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

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

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

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

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

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

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

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

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

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

LINK TO NEWS ARTICLE >>

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

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

LINK TO THE PAPER >>

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

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

LINK TO THE OPINION >>

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

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

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

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

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

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

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

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

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

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

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

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

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

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil right activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

LINK TO PRESS RELEASE >>

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

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

Related Links:
http://www.eff.org/cases/usp-v-durkee

Posted Wed, Nov 19 2008 2:15 AM by aheram | with no comments
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To defend their state-granted monopoly, that is. MediaDefender, an outfit paid by the MPAA and RIAA to disrupt peer-to-peer sharing networks, is suspected of engaging in denial-of-service attacks against Revision3. The company uses BitTorrent technology to deliver its own digital files (much the same way Blizzard uses BitTorrent to deliver patches to millions of its users). In an account published in their blog, Revision3 followed the tracks that led all the way back to MediaDefender.

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

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

Posted Tue, Jun 17 2008 3:38 PM by aheram | with no comments
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Google is in the spotlight in another copyright scandal when it allowed Arrianna Huffington's 236.com to claim copyright on Paulo's intellectual property. According to Paulo in a message sent to BoingBoing:

I'm the guy who made the cloudy timelapse video popularly used later "Anonymous Message to Scientology."

Three days ago, Google's copyright bot flagged my own video as infringing because 236.com (Arianna Huffington's comedy news outfit) had posted a parody video using my footage with a content identification sig on it. When I asked who had flagged my video as infringing in preparation for a dispute, I was told that 236.com had graciously allowed me to keep "their copyrighted video."

Basically I put out a free public domain video for the internet to use as they wished, 236.com made a thirdhand derivative parody, and through Google Video they made an aggressively [sic] claim of copyright over my own material. At the time of this writing my video has not been restored.

One of the unintended consequences of the Digital Millenium Copyright Act (or maybe it was very much intended?) is that corporations are rarely or never doubted when they invoke the DMCA. They send DMCA notices and the online services jump and willingly comply in an effort to stave off costly lawsuits. This inequity is ever more apparent when they invoke the DMCA against an individual's copyright. The average content-creator does not have the deep pockets of the RIAA and MPAA (or any corporation for that matter) to fend off attempts to steal their copyrights.

Paulo is rightly indignant in an email he sent to Arianna Huffington herself:

Why, thank you! Please do convey to twentythreesix (23/6) that I am absolutely DRIPPING WITH GRATITUDE for so GRACIOUSLY permitting me to KEEP MY OWN VIDEO UP. Bad enough that their "Anonymous Message to Giuliani" was derived from the "Anonymous Message to Scientology" which used my original footage, now twentythreesix is still claiming COPYRIGHT ON THE ORIGINAL FOOTAGE, and only letting me keep my own material up out of the GOODNESS OF THEIR HEARTS.

As we can see, not only are copyrights being used to stifle innovation and creativity by preventing derivatives of original works, it can be used to punish original content-creators when powerful and deep-pocketed corporations claim ownership over an individual's work.

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