Sue First And Ask Questions Later

If you maintain a blog or website, and you post blockquoted text, photos, or images from copyrighted sources such as newspaper websites, you could unknowingly find yourself served with a lawsuit from a firm called Righthaven. 

In case you didn’t know, Righthaven is a company based in Las Vegas that sprang to life last spring for the sole purpose of suing blogs and websites that repost, or even excerpt, Las Vegas-Review Journal articles without permission. It has filed a large number of  lawsuits, and settled dozens of them in its favor.  Righthaven’s tactics are pretty straightforward and extremely legal:  it purchases the copyright to an article or image and then searches the web for anyone who has published the article or image in question without authorization.  It gets the information concerning the person who has posted said information and then proceeds to sue them into oblivion.  While most out there would ask the blogger or group to take down said article before resorting to lawsuits, Righthaven goes straight for the jugular like a school of hungry piranha.  Most or all of their  lawsuits have demanded the statutory maximum of $150,000 in damages as well as surrendering ownership of the domain name. That’s a lot of money for the bulk of bloggers out here, so most of the cases have settled out of court. Basically when you are served by Righthaven, you either have to pay thousands of dollars in court costs to defend yourself if you think your use of the material was fair use or you have to settle the case and still lose hundreds or thousands of dollars. It’s what they call “instant litigation”.  Apparently it works pretty well.

“But what about Fair Use?”  you may ask. 

Oh yes, that.  Recently, Realty One Group fought back and was awarded a summary dismissal based on the finding that eight of 30 sentences from a Review Journal story about the real estate market qualified as fair use of the material.  Righthaven came out afterwards and say they would not pursue “instant litigation” against those whose use is less than seventy five percent of a copyrighted work. 

They also stepped ino it when they decided to sue the Democratic Underground site for a publication of four paragraphs from a 34 paragraph article about Senate hopeful Sharron Angle.  The Electronic Frontier Foundation stepped in to defend Democratic Underground and counter-sued Righthaven for abusing copyright law.  Righthaven backed off, asking U.S. District Judge Roger Hunt to dismiss its original claim, but maintaining that that it still could win if it really wanted to.  The problem here is that there really is not any amount set by the law that tells you how much is fair use and how much is too much.  In that respect it’s kind of like pornography: you know it when you see it. 

So continue blogging folks, but watch your sources and your backs.  Lawyer infestations are worse than bedbugs.

Everything Has Its Price

Interesting story on CNET news.  What is interesting about it is the reactions.

Here’s the story.  Last month, executives from two music-industry trade groups, the RIAA and the IFPI, asked Google if it could provide a means to help them track down pirated material more efficiently. Normally, copyright owners are responsible for finding pirated links and alerting Google, which is then required by law to quickly remove the links.  This has been happening with no problems; after all, Google is following the law by doing so and has been doing so for some time. 

What happened next is what set people’s knickers on fire. James Pond, a manager for Google said sure, they’d be happy to help, but of course that help would come with a price tag.  I’ll let CNET take it from here:

“Pond wrote that after discussing the music industry’s request with the team "that runs the Web search API product," Google planned to provide three options for third parties to access the API. The first one was designed for third-party services that display Google ads alongside search results. The second was for developers and would include only a very low number of searches.

The third was a paid product called Site Search, Pond wrote. "The only option for the IFPI/RIAA to access our Web search API will be the third option," Pond wrote, according to the source who had seen the letter.

"I understand we charge a standard rate of $5 per thousand queries, which is charged to recover our costs in providing this service," Pond wrote.

A music industry source estimated that such charges could add up to several million dollars a year.”

Several million dollars a year.  Gee, that’s almost half of what they pay Angelina Jolie for one film.

To say the least, the industry was not happy that Google refused to roll over.  This points out a rather contentious relationship that Google has with the entertainment industry.  In fact some in the industry accuse Google of everything from bankrolling piracy to fencing stolen goods.  The fact that Google actually wants to charge for infringement searches merely adds insult to injury, they claim.  

To which I have to call bullshit.  Though slightly different, but parallel enough to compare, consider the following: RIAA / IFPI / etc… would like the content that they own or represent to be paid for. To assist them in enforcing this, they expect Google to find infringing material and links, then determine that these are, in fact, infringing (not fair use cases, licensed material) and that Google do this without any compensation. Google assisting content creators or owners with finding pirated material is not a legal requirement. Why should Google do it for free?  Especially since the law puts the onus on the creator to find infringing material.  Besides, the real point of charging them is so they don’t sit there and run millions of queries a day and clog up Goggle’s server.  There’s a cost with that as well.  Google is taking care of their own business.

Now piracy is wrong, but apparently, the entertainment industry loves to try to force other to do their job for them.  Just look at the case of Viacom vs. Youtube.  Of course, the record labels could build their own Web crawlers instead of leaching off of Google’s work in order to find those who are violating their copyrights. Then when they find a violator, they can check with a much smaller query volume to see if Google indexes that violator, then they can send a legitimate take down request. But that would require time, money, common sense and less lawyers than a full frontal against Google.

Yes, searching for infringing material costs money. And Hollywood, if you want to find infringed material, you have to go out and do so.  Not the ISPs.  Not YouTube.  Not Google.  You have to do the legwork.  It’s what they call the cost of doing business.

WordPress Tags: Google, Entertainment, Hollywood, Business, Lawsuits, Copyright

Now Playing: Arcade Fire – The Suburbs – Month Of May

YouTube:1, Viacom:0

Today, a verdict was rendered in this first round of the fight between YouTube and Viacom.  Advantage, YouTube. 

For those unaware of the fight, here’s the short version:  Viacom was suing YouTube for 1 billion dollars (yeah, billion, with a “b”) for copyright infringement.  After all, YouTube allows people to put up video clips, and sometimes those clips are from Comedy Central and other Viacom properties.  Viacom’s argument was that YouTube knew full well what was being posted and was therefore responsible. So therefore they should get a billion, because people like posting last night’s episode of  The Daily Show. 

The fight has been going on since 2007 and while there have been some leaked memos, most everything has been low key.  So it was in some ways surprising today when U.S. District Court Judge Louis Stanton decided that the Digital Millennium Copyright Act protects YouTube from Viacom’s claims and threw the case out.

You see, according to the DMCA, when it comes to copyright on the web, it is the holder of the copyright that is responsible for the takedown notice, not the hosting company.  This is what is known as the “safe harbor” provision.  As long as the company complies with the request, then it is safe from legal action.  The judge found that while there were a huge number of infringing videos on YouTube, the site did take them down when notified. In fact, he points out one instance in 2007 when Viacom gave YouTube a single takedown notices for 100,000 videos. By the next day they were down.

Now there are many in Hollywood who would like to see that position reversed, because it takes a lot of time, people and money to find every copy of South Park that is being posted.  Money that could obviously be used to support Lindsay Lohan’s (alleged)cocaine habit.  But I digress.  The point is, if the situation were reversed, then YouTube would basically cease to exist, along with lots of other sites that allow for user input, like WordPress, the company that hosts this blog.   Because they would have to hire an “Input Police Force” to make sure that anything remotely “infringable” stayed very far away from the net. 

Of course, an appeal is pretty much certain, but the fact that Viacom could not even get this puppy to trial sets a bad precedent.  Winner of the next round takes on Viki Carr in the finals. 

WordPress Tags: Law, YouTube, Viacom, DMCA, Copyright

Now Playing: Pretenders – Pretenders – Mystery Achievement

Divine Copyright

We all know what happens when the RIAA takes on copyright infringement. After all, that is pretty well documented. But hell hath no fury like the Vatican when it comes to its copyright. Father Guido Sarducci might want to be on the lookout.

According to the Catholic News Agency, the Holy See announced that it will vigorously defend its rightful copyright to the figure of the pope. The Vatican claims that there exists a “great increase of affection and esteem for the person of the Holy Father” recently. It also observed there has been an increase in attempts to use ecclesiastical or pontifical symbols and logos to "attribute credibility and authority to initiatives" and that was a further reason to establish their copyright to the name, picture and coat of arms of the Pope. From this time unto perpetuity anyone seeking to use any of these will need to get specific authorization from Rome to do so or find themselves facing the wrath of the Vatican. Apparently this means lawsuits, eternal damnation, or both.

So, does this mean that we are to say goodbye to pope on a rope, any use of the word pope or any of its variants such as pontiff, pontifical, or papal?  Maybe not.  In the opinion of British copyright attorney Robin Fry, the Vatican may be up against some problems in enforcing its copyright. First of all, the copyright would only legally extend to the 110 acres of Vatican City, unless they get some other governments to cooperate. Said Fry,

“…this declaration is a brave attempt to control use of the imprimatur and image of His Holy Father, but this can only realistically be done through registration of trademarks.”

“As far as monitoring was concerned, all it needed to do was to set up an enforcement or monitoring body. “Then if someone stepped out of line and the normal religious and spiritual pressures don’t operate effectively then at the end of the day, lawyers can step in and take action,”

Although trademarks do exist, they have never been registered. However, no matter how toothless the Holy See might be in this area outside of the Vatican, perhaps unauthorized use of pope to market things might be treated by the Church as a matter like supporting abortion as a reason to deny communion to unlucky interlopers. And that’s no papal bull.

Now Playing: The Stranglers – La Folie – Non Stop

Now That’s What I Call Infringement!

You’ve heard the story before; copyright infringer gets pulled into the courts, under the possibility for paying ludicrous amounts of money for downloading Beyonce’s newest single without paying for it.  Well, it is happening yet again.

Only this time, the tables are turned.  There is a huge lawsuit, but this time the defendants are the record companies.  So what’s the story?  Well, this story takes place in Canada.  Now, there is a longstanding practice of the recording industry in Canada, described in the lawsuit as "exploit now, pay later if at all." It involves the use of works that are often included in compilation CDs (you know, those “That’s What I Call Total Crap”) or live recordings. The record labels create, press, distribute and sell the CDs, but do not obtain the necessary copyright licenses.  Instead, the names of the songs on the CDs are placed on a "pending list," which signifies that approval and payment is pending. This pending list has been going on since the late 1980’s. 

The list now stands at over 300,000 songs.  From TheStar.com:

From Beyonce to Bruce Springsteen, the artists waiting for payment are far from obscure, as thousands of Canadian and foreign artists have seen their copyrights used without permission and payment.

It is difficult to understand why the industry has been so reluctant to pay its bills. Some works may be in the public domain or belong to a copyright owner difficult to ascertain or locate, yet the likes of Sarah McLachlan, Bruce Cockburn, Sloan, or the Watchmen are not hidden from view.

The more likely reason is that the record labels have had little motivation to pay up. As the balance has grown, David Basskin, the president and CEO of the Canadian Musical Reproduction Rights Agency Ltd., notes in his affidavit that "the record labels have devoted insufficient resources for identifying and paying the owners of musical works on the pending lists." The CRIA members now face the prospect of far greater liability.

Excuse me, if you are having problems finding Bruce Springsteen, how about contacting your American affiliate and ask them?  It isn’t like the man went into hiding from the mob or anything.  So somewhere along the line, artists got tired of being pirated by their own record companies and sued.

The plaintiffs are seeking $20,000 damages for each infringement, based upon the same rules that led the recording industry to claim a single file sharer is liable for millions in damages.  Do the math.  300,000 songs at 20k per song. Talk about being hoisted by your own petard.   Did I mention that the artists are also seeking punitive damages? 

Well, you did say that piracy was killing the music industry.

Now Playing: Everclear – Songs from an American Movie, Vol. 1: Learning How to Smile – A.M. Radio

WordPress Tags: Music Industry, Lawyers, Guns and Money, business, copyright

Tick, Tick, Tick…

There is an interesting article in Wired online concerning current copyright laws and the deadline that the music industry is facing.  Deadline?  Yes, it seems back in the mid 70’s, congress passed the U.S. Copyright Act of 1976.  In it, it states that if an artist or author sold a copyright before 1978 (Section 304), they or their heirs can take it back 56 years later. If the artist or author sold the copyright during or after 1978 (Section 203), they can terminate that grant after 35 years. Therefore, the take-back starts, technically, in 2013.

That is, as they say, a lot of music.  It is interesting to see how a law like the copyright act happened back in 1976, because it would never happen today.  So step into the time machine, Sherman and let’s go back…

You see, back in 1976, Rock was bloated, Disco was jaded and Punk was just getting off the ground.  Nobody, besides the Rolling Stones and maybe David Bowie  and Elton John were making huge amounts of money, as the recording business was still in what I call a cowboy phase.  Besides, one can argue that back in 1976, the idea of thirty five years in the future was probably thought of as a realistic period of time for copyright, as looking backward from 1976, grandparents and Bette Midler were the only people listening to music made in the early forties.  Apparently, the record industry also thought that music was a throw away media, a mindset from the disposable 60’s.  I mean, who would have thought that KISS would still be huge today? 

As they say, times change.  You see people at a KISS concert with their children and grandchildren.  The Eagles are still popular.  There has been at least two disco revivals and expect another one in about five years.  The Ramones are venerated and still sell albums, even though the band is long gone.  This is not the thirty five years in the future that people in 1976 thought it would be. 

So what are the record companies to do?  You know they aren’t rolling over on this one.  Too much is at stake.  From the Wired article:

The record labels tried to defuse this bomb in 1999 by sneaking an amendment to the Copyright Act through the House of Representatives that would add sound recordings to the Act’s list of copyrights that were considered “works for hire,” which would make them exceptions to the grant termination clause. According to one source close to the situation, the labels told Congress that the Copyright Act already covered sound recordings as exceptions because albums of music are “compilations” — but that “just to be absolutely clear, [the labels] wanted to put it in so nobody can debate it.”

After musicians, including Carly Simon, reacted negatively, the amendment was withdrawn amid public outcry leaving record labels with precisely two options for fending off notices of termination, neither of which looks promising. The first is to continue to claim that albums are compilations, which doesn’t pass the common-sense test (compilations include songs from different artists), and probably won’t pass legal muster either…

…The second option is to re-record sound recordings in order to create new sound recording copyrights, which would reset the countdown clock at 35 years for copyright grant termination.

For example, when Omega Record Group remastered a 1991 Christmas recording, the basis of its new copyright claim was “New Matter: sound recording remixed and remastered to fully utilize the sonic potential of the compact disc medium.”  What it boils down to is that the record company can look at the artist and say you can have the originals.  The updates are ours.

Sneaky. Suddenly the reasoning behind the Beatles’ hesitancy in releasing their catalog makes sense.  It is the grail of music catalogs and Paul and Yoko want to milk it for everything it is worth. To which I say-good for them.  It is their music, not the record company’s. 

So if the world doesn’t end in 2012, expect there to be major earthquakes in the RIAA in starting in 2013.  The Eagles plan to file grant termination notices by the end of the year. 

Now Playing: David Bowie – Station to Station – Golden Years

WordPress Tags: RIAA, copyright, Music Industry

Copywrong

Cory Doctrow has done it again.  He went and leaked the details of the internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama’s administration refused to disclose due to "national security" concerns.  It is not good.  It is very bad indeed.

Some of the more insane details include the following:

*That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.

* That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet — and hence to civic participation, health information, education, communications, and their means of earning a living — if one member is accused of copyright infringement, without access to a trial or counsel.

* That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused — again, without evidence or trial — of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

Makes me want to become a renegade HVAC repairman.

Now Playing: Metallica – Black Album – Wherever I May Roam

WordPress Tags: Copyright, rights, Government, DRM