Posts Tagged ‘copyright’
The internet was all abuzz yesterday with news of Netflix’s creation of a super PAC, called FLIXPAC, allegedly set up to promote SOPA/PIPA-type legislation.
You see, internet, this is why we can’t have nice things.
Politico ran a piece on April 5 with the not-terribly-earth-shattering headline “Netflix forms PAC.” It takes about thirty seconds to see that the article makes no mention whatsoever of any specific policy positions taken by said PAC. It doesn’t even call it a “super” PAC.
Fast-forward to April 9, when RT publishes “Netflix creates pro-SOPA super-PAC?” Note the use of the question mark. The article is a masterpiece of hedging:
As US lawmakers consider anti-piracy legislation, they may have found an ally in Netflix. The streaming content giant has created its own super PAC, raising claims that it will support anti-piracy measures in Washington to promote SOPA-like laws.
(Emphasis added) See the problem? It continues:
Hollywood and record industry support didn’t help Congress get SOPA and PIPA to pass the House and Senate, but now they may have a new accomplice in their continuing fight to try and push for anti-piracy legislation.
(Emphasis added) Keep reading…
The newly established agency may be able to endorse politicians by way of stuffing their pockets, which could influence even more congressmen to condone increasingly controversial bills considered in the House and Senate. Congressional records would seem to support this possibility, as they show that the lobbying expenses of Netflix rose from $20,000 in 2009 to $500,000 in 2011.
The most notorious of those bills – the Stop Online Piracy Act (SOPA) – is thought to have found initial support with Netflix CEO Reed Hastings, who reportedly expressed solidarity with SOPA’s ultimate goals in a letter to the Chamber of Commerce. However, once internet resistance to SOPA grew, Netflix hastily backtracked, insisting that the company has been “neutral” on the issue right from the start.
(Emphasis added) I think you get the idea.
This is why it is important to read an online article carefully and check the linked sources. In the case of the RT article, there are no linked sources. They don’t even link to the Politico article. That says something.
The one verifiable claim made anywhere in the quoted text, other than the simple (and innocuous by itself) fact of Netflix’s increased lobbying budget, is the CEO’s purported support of “SOPA’s ultimate goals.” Yes, Hastings did apparently send a letter expressing support for the goal of stopping internet piracy. Not to get too far from the original point of this post, but of course he would support stopping internet piracy. He makes money in part by selling streaming video. And stopping online piracy is not an inherently unworthy goal (wait for it…)
The problem with SOPA is that it goes too far and is ripe for abuse by overzealous content owners and prosecutors. It isn’t SOPA’s goals that are problematic (well, that’s arguable, but I’m generalizing), so much as SOPA’s methods.
After much public outcry, Hastings reversed any sort of overt support he might have implied for SOPA. That was a good business move. The public clearly does not care for SOPA, and Netflix has been near-catastrophically tone-deaf to the public’s needs in the recent past.
RT issued a correction of sorts earlier today.
The point here is that SOPA is bad news, but suggesting ill intent around every corner does not help the overall cause of developing a system of online copyright protection that actually makes sense. Netflix and Reed Hastings may actually love the crap out of SOPA, and this really is a ploy to help push it through Congress–but this sentence is pulled directly out of my butt, as there is no evidence of this whatsoever. So far.
I’m halfway through season 1 of both “The Wire” and “Mad Men,” so I’m glad I don’t have to give up Netflix. Yet.
Side note to Netflix: You dodged a bullet in September with your idiotic Qwikster plan. Just know that American consumers are watching you, and do not trust you. Lucky for you that you offer a good service people love. But then, Blackberry once had fifty percent of the smartphone market, and look at them now. Tread carefully.
Photo credit: Photo by author.
Today I decided to avail myself of some of South by Southwest‘s CLE offerings. Since I have some interest in internet law, including issues like cloud security, I was very interested in “Gimme Shelter from the Storm Clouds.” This was advertised as a panel looking at “the disruption caused by some new cloud-based services and how this disruption is affecting existing industries.” That’s not exactly what they talked about. The panel consisted of two lawyers and the owner of mp3tunes, a “music locker” service.
Let’s just say there were fireworks.
Copyright law allows people to keep “ephemeral phonorecords,” meaning digital copies of music you own, i.e. ripped copies of your own CD’s. It gets tricky when you start sharing that music with others, and it gets really tricky when you upload that music to the internet. A major issue for the cloud is whether a license is required for every digital copy of a song. There does not seem to be a consensus on this question–if there is, it was not in evidence today. It’s still a pretty good question.
Who has the burden of establishing whether a given track infringes a copyright? The law basically says that the copyright holder has that burden, but they argue that the service provider has the most readily available information on the upload itself. On the other hand, the service provider does not have the resources to review every possible license a file could have. The technology is advancing far, far faster than the law can possibly pace.
A few years ago, mp3tunes reportedly received a copyright takedown notice after it linked to a song on the SXSW website. This was, according to the speaker, just a link to the page where the song was posted. I asked how that could possibly be infringement, and he told me that it was an attempt by the copyright holder to intimidate him, or something along those lines. I find the argument interesting given that one website linking to another is pretty much the foundation of the internet, without which SEO wouldn’t even be possible. The question of whether linking to copyrighted material, especially deep linking to specific files, is infringement is still somewhat of an open question.
They talked about the MegaUpload case at length. On the one hand, the federal government arrested a large number of people for copyright infringement–not normally a criminal matter per se–and seized all of their assets with little to no due process. On the other hand, a comparison was made to a RICO prosecution. I’m not as familiar with the case as I should be, so I guess this will lead to more posts.
As part of my ongoing coverage of my experiences at South by Southwest Interactive 2012, here is a my recap of a session from this morning entitled “The Undoing of Copyright Trolls” (#UndoTrolls on Twitter). Here is a recap of my notes on the session:
The session was conducted by Robert A. Spanner, president of the Trial & Technology Law Group. Copyright trolls, a relatively new phenomenon, acquire copyrighted material or work for someone with copyrighted material. They then go on the internet & look for people using that material. When they find someone they think has posted infringing material, they shake them down for money. The troll’s role, in essence, is that of an extortionist.
He says the problem began with production and record companies that gave the impression that infringement was a capital crime. If the public thinks copyright is extremely serious, this makes copyright trolls’ job much easier because people are more likely to cave in to demands.
Here are a couple examples of people who take a different view of copyright:
Angry Birds: the owner of these universally-recognized images views copyright infringement as free additional exposure for his products.
Neil Young thinks distributing music over the internet has taken the place of radio, meaning it is the best way for new music to quickly get wide exposure.
The most famous copyright troll is Righthaven, a company Spanner says was created specifically to be a copyright troll. Righthaven apparently acquired all of the production from the last several years of a Las Vegas newspaper. Its agents would locate infringing material online and attack.
The Digital Millennium Copyright Act (DMCA) allowed them to subpoena user info from the ISP to find out who posted an image. The troll has to provide certain info to get the subpoena. Trolls, Spanner says, are not very good at filling out the paperwork to get the subpoena. They have to pursue these cases in volume for business reasons, so they don’t always pay close attention to the paperwork. Trolls, he says, “say the darnedest things” in these papers.
Two documents required by the statute: a declaration of infringing material, identifying the material with some particularity, and a statement of copyright owner. These two documents, as filed by a copyright troll, often conflict with each other. Usually, they are full of misstatements. The trolls “learned their tactics in the sewer,” according to Spanner.
Once he files and wins a motion to quash the subpoena against the troll, the case should get thrown out for lack of evidence. The next step after getting a motion to quash granted is for the defendant to take down the offending material. This really screws the troll.
If the troll claims an error in the first petition, it must submit a revised request for a subpoena or drop the matter entirely. The troll has to identify the infringing material. If the material is taken down, the troll has nothing to claim. The troll has to show current use of the infringing material, which troll now cannot do. The troll also has to show that they have given the ISP enough information to locate and remove the infringing material, which the troll also cannot do. As a result the case gets thrown out a second time.
Courts have held that, if the troll fails to meet these statutory requirements, the case must be thrown out. Therefore, Spanner argues, if you can get past the first subpoena, you have a defense to copyright infringement under the DMCA.
At this point an audience member asked a question re: why Righthaven is called a “troll.” Spanner answered that trolls are only interested in collecting money, not so much in enforcing copyrights. It is not the fact that they are enforcing copyrights, in and of itself, that’s the problem. It’s that, according to Spanner, they do it so badly. Trolls have no interest in litigating. They may even drop defendants from a suit if it gets too hard, but they also tend to file mass suits against thousands of defendants with disparate circumstances, because it is more efficient than filing separate suits..
Now that you beat the troll, Spanner asks, are you done with him? The troll can’t bring the case again, so it is a pretty clear victory. Spanner says a copyright lawyer should consider putting the troll out of business at this point. After losing a case in this way, a troll could be facing tens of thousands of dollars in attorneys’ fees. It would not take many such motions to put a troll out of business entirely. A motion for attorneys’ fees is what brought down Righthaven.
It is not generally known, says Spanner, that if you win at that first phase of the litigation (the DMCA subpoena), you win.
He spoke about mass troll cases as well, with hundreds or even thousands of defendants accused of BitTorrenting movies. Some pretty cool software detects BitTorrent users in the stream of the internet. It is apparently rare to see a BitTorrent case without thousands of defendants. From the troll’s point of view, if 10% each pay $3,000 to avoid hundreds of thousands in statutory damages, the troll will get rich.
Spanner cited two cases of mass cases that did not go well for the troll. In a case in Fort Worth, Texas the ISP filed an elaborate motion to dismiss the troll’s subpoena. This was a nightmare for the troll, who just wanted to get money quickly. In a case involving the movie “Call of the Wild,” a troll filed suit over five different movies, naming more than 5,700 defendants. All of the defendants were sued in D.C., despite the fact that they were from literally everywhere. Even movie companies called it improper joinder. The judge allowed discovery to determine if joinder of all of the defendants in D.C. was improper. Eventually, after an extensive search, troll could only find 3 people out of 5,700.
I asked about what specific rights the trolls acquire for the copyrighted material, i.e. do they acquire the rights to enforce the copyright and collect royalties, or just enforcement? I’m not even sure how that would work, but it occurred to me that, if it is possible to only acquire the enforcement rights (or whatever they would be called), that would create an odd situation where a party is enforcing a right without actually suffering a harm, in the sense that the enforcement rights holder doesn’t actually lose anything due to the alleged infringement. Turns out it is not always clear what rights the troll obtains–these cases seem very unusual. I’m glad I learned this stuff, but that’s about it for me on this issue.
UPDATE (03/13/2012): It sounds like Righthaven is pretty much f***ed (via Wired):
Righthaven, a copyright-troll law firm that failed in its attempt to make money for newspapers by suing readers for sharing stories online, was dealt a death blow Tuesday by a federal judge who ordered the Las Vegas company to forfeit “all of” its intellectual property and other “intangible property” to settle its debts.
The order is an ironic twist to a copyright trolling saga that began in 2010, when Righthaven was formed with the idea of suing blogs and websites that re-post newspaper articles or snippets of them without permission.
U.S. District Judge Philip M. Pro of Nevada ordered Righthaven to surrender for auction the 278 copyrighted news articles that were the subject of its lawsuits.