Last Call For Techdirt DMCA Takedown Shirt

from the last-call dept

Just a final reminder that if you want the Techdirt DMCA Takedown T-shirt, today is the last day to order them, either alone or with my Approaching Infinity book. And, remember, we also have the regular Techdirt logo t-shirt (and again, the logo t-shirt with the book) and the Techdirt logo hoodie, all of whose sales end tonight at midnight PT. The DMCA t-shirt has proven to be incredibly popular (sales have far outstripped our last t-shirt), so if you want in on the fun, make sure to order one in the next few hours. We're thrilled so many people like the shirt so much...

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Fox News Tries Selective DMCA Takedowns: If Liberal Bloggers Use It, Take It Down

from the the-dmca-is-only-for-the-embarassing-stuff dept

An anonymous reader alerts us to the story that Fox News has sent a series of DMCA takedown notices to YouTube for a guy who's been putting up clips that have been popular among the "liberal" blogworld. Now, there's an open question as to whether or not these clips are fair use -- but even if we assume that they are infringing, there's an interesting element to this. They only targeted the guy who posts clips that liberal blogs are using. There are tons of other clips that conservative blogs use -- and those remained up.

In many ways, that shows how the DMCA is really being abused. It is not being used because of any loss in revenue from these clips being online. It's really being used solely to stifle opposition speech. I don't care which side of the political spectrum you fall on, this is an example of an attempt to stifle speech, not protect some sort of business model. It's using the DMCA to take down clips that are being used by people that disagree with the copyright holder, even while they leave up tons of other clips used by people who agree. I can understand why Fox News is doing this, but it goes way beyond the intended purpose of the DMCA (while also suggesting that Fox News apparently is way too sensitive about its critics). Update: Amusing. After all this started getting attention, Fox News decided to send takedowns for other content as well. Looks like once it was clear how bad this look, it realized it needed to take down the others as well.

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DMCA Takedown Shirt Only Available For A Few More Days

from the then-we-file-the-counter-notice dept

In case you missed it, last week we added our DMCA Takedown T-shirt to our ongoing CwF+RtB experiment, and it's been incredibly popular (people sure do love mocking the DMCA). You can just order the t-shirt (which also comes with the Techdirt Crystal Ball and insider badge), or you can get the DMCA Takedown T-shirt with my book, Approaching Infinity. However, the t-shirt is only available for a few more days. All orders need to be in by Monday November 16th at midnight, PST, or you'll have to go without...

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Modern Warfare Game Modder DMCA's Infinity Ward

from the bogus-DMCA-claims-are-no-laughing-matter dept

Reader Cameron Boykin alerts us to the news that a game modder appears to have filed a DMCA claim against Infinity Ward for its video of a certain part of Modern Warfare 2, claiming that the element in the game was influenced by a mod he had created. While this may seem amusing to the folks who are pissed off at Infinity Ward for various consumer-unfriendly positions, it still appears to be an abuse of the DMCA. It doesn't sound like Infinity Ward flat out took this guy's code or anything -- and having similar gameplay elements is unlikely to be copyright infringement at all. While it may have just been a joke or a "protest" sort of move, filing a bogus DMCA takedown is bad news no matter how you look at it, and can get the filer into a lot of legal hot water pretty quickly.

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Perfect Pitch Accused Of DMCA Abuse To Censor Criticism [Update]

from the copyfraud dept

Michael Scott points us to yet another (yes, another) case of copyfraud, where someone sends a DMCA takedown notice to stop criticism, rather than actual infringement. In this case, the party accused of misusing the DMCA in this manner (which is illegal) is whoever is behind the website PerfectPitch.com, who offers a fee-based training program that is supposed to help people learn to have (surprise, surprise) perfect pitch. Mac Donn had put up a blog post on TheSession.org, asking about the general concept of having perfect pitch (not the course specifically) leading to a relatively tame discussion in the comments. However, one comment sorta kinda maybe referred negatively (barely) to the website PerfectPitch.com, suggesting that that there are plenty of free resources to help train your ears. In response, it certainly appears that the owner of PerfectPitch.com, Gary Boucherle, sent a DMCA takedown request to Google, who removed all links for that supposedly-offending page from its search index.

But, of course, that makes no sense. Nothing on the page violates the copyright of Boucherle at all. There isn't any content from his website. There is just a reference to it (and it's basically an aside, rather than a direct discussion). From what's presented, it's difficult to see how this isn't a violation of the DMCA with Boucherle claiming copyright on content that he has no rights (at all) over, in attempt to remove from Google's index a webpage that suggests that there are free alternatives that are better than paying for expensive courses.

We see this kind of abuse of the DMCA all too frequently, as various parties use it as a sledgehammer to censor content they dislike, rather than for anything having to do with copyright infringement. It's a massive problem with the DMCA's notice and takedown process, which puts tremendous pressure on services like Google to simply remove the content first, before there's any actual evidence of infringement.

Update: To his credit, Gary Boucherle stopped by and wrote up what appears to be a very sincere apology. We'll take him at his word that this was just a big accident for which he feels bad, and will work to prevent from happening again.

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Latest Bogus DMCA Takedown Sent By NPR?

from the you'd-think-they-know-better dept

You wouldn't normally associate NPR with sending bogus DMCA takedowns, but via the EFF we learn that NPR has sent a DMCA takedown to YouTube over a commercial that uses a clip from NPR. The commercial is from a group that opposes same-sex marriage, so there's likely a political angle here. NPR claims that it issued the takedown to "protect NPR's valuable reputation as a trusted and unbiased source of news," but that's not how copyright works. This is quite similar to when CBS tried to stop the McCain campaign from using a snippet of a broadcast in an ad. In both cases it seems that the use is a clear situation of fair use, with the content not being used for commercial reasons (yes, we'd like to believe that politics still isn't commercial) and only a snippet was being used.

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Chamber Of Commerce Uses DMCA Claim Against Yes Men Prank Site

from the this-won't-end-well dept

There was a lot of news a few days back when notorious pranksters, Yes Men, set up a fake press conference pretending to be the US Chamber of Commerce, announcing that it had changed its controversial stance on climate change -- which had recently driven some large companies, including PG&E and Apple, to leave the CoC. The fake press conference, along with a fake website and fake press release, apparently fooled some in the media -- including Reuters -- until someone from the real Chamber of Commerce burst into the room and confronted the pranksters. The video is great:

Part of the hoax was a fake website at www.chamber-of-commerce.us, and apparently the real Chamber of Commerce has sent a DMCA takedown on the site. The EFF is responding in support of Yes Men, saying that the site is a parody, which is protected fair use. While I think that the Chamber of Commerce is pretty dumb to issue the takedown -- only giving the Yes Men more attention -- I'm not sure that the parody defense will stick here. While the site is for the purpose of criticism, the site is most certainly not an obvious parody. It's designed to look real. Thus, the bigger issue may actually be trademark infringement, not copyright infringement, as the site could certainly confuse users, but there are other ways to deal with such things that don't involve a DMCA takedown.

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Ralph Lauren Admits It Needs Photoshop Help... Doesn't Say Much About DMCA Help

from the could-go-a-bit-further,-you-know... dept

Following last week's hubbub over Ralph Lauren and its lawyers sending bogus DMCA takedowns to sites who posted a Ralph Lauren ad that appeared to show an inhumanly skinny model, the company has put out a statement confessing that the ad was terrible:

"For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately."

That's nice and all... but it doesn't address the question of sending bogus takedown notices to both the Photoshop Disasters' webhost and Boing Boing's webhost. The fact that the company later admits that its photoshopping was done poorly actually makes the situation seem even worse -- as the company, rather than admit that at first, used a bogus legal proceeding to take down legitimate criticism -- criticism that the company itself is now admitting was perfectly legitimate.

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Craigslist's Dumb Lawsuit Against Spam Tools Provider

from the what-are-they-thinking? dept

It's hard to come up with an adjective to describe Craigslist's decision to sue Red Trumpet other than "dumb." Nothing good will come of this lawsuit for a variety of reasons, and Craigslist is asking for trouble in filing it. Now, I can understand why it sounded like a good idea. Last year, we wrote about the increasing problem of spam on Craigslist, highlighting how a variety of spammers had figured out ways around each attempt by Craiglist to stop the spam. And, yes, we absolutely agree that spam on Craigslist is a problem and a nuisance, and it's good that Craigslist is working hard to try to stop it. But that doesn't make this lawsuit make sense. The full lawsuit is below (it's a bit long), and highlights all of the different claims that Craigslist is making against Red Trumpet, a company that offers tools and services to help advertisers post messages on Craigslist (some of which may be spammy, though, certainly not all):

So what are the problems? Well, as Eric Goldman notes, Craigslist is "playing with fire" on a variety of legal doctrines, almost all of which could come back to bite Craigslist. For example, Craigslist is blaming Red Trumpet -- a service provider -- for the actions of its users in spamming the site. Think about that for a second. For the past couple of years, law enforcement officials have been trying to use that exact argument against Craigslist over things like prostitution posts on the site -- to which Craigslist has always put forth a strong defense that as a service provider (under Section 230 of the CDA) it's not liable for the actions of its users. Does Craigslist really want to try to establish a precedent that would chip away at Section 230 protections?

Next, Craigslist is making a really weak DMCA claim here. It's claiming that its various anti-spam technologies (captchas, phone verification, etc.) act as "technological protection measures" that Red Trumpet is circumventing... and thus running afoul of the DMCA's anti-circumvention rules. But the circumvention has nothing to do with violating Craigslist's "copyright," though the lawsuit makes a half-hearted attempt to claim that it does.

Then, there's the trademark claims. There are a few different ones, but it argues that Red Trumpet is violating Craigslist's trademark by mentioning Craigslist on its website and in its ads. While again, you can see why this is annoying to Craigslist, if the company is accurately describing services it provides (the ability to post on Craigslist) it's difficult to see the "confusion" being caused. The ad in question doesn't appear to imply any endorsement at all by Craigslist. And, does Craigslist really want to open up a can of worms concerning trademarks being used in ads? After all, there must be a ton of posts on Craigslist that mention trademarks.

Finally, there's Craigslist claiming that Red Trumpet violates the Computer Fraud and Abuse Act by accessing its site despite violating its terms of use. Does this sound familiar? It's the same argument that was used to try to punish Lori Drew, and was recently tossed out by a judge. Basically, it's claiming that if you happen to violate the terms of use of a site, and then still access the site, you've effectively "hacked" into the site. This is a really bad reading of the law, which is why it was good that the Drew ruling got tossed out. So why is Craigslist trying to re-establish that as a rule?

Yes, clearly, Craigslist is upset about the spam on the site -- and it should be. Plenty of users are upset about it, and Craigslist wants to help those users, help itself and stop the spam. But this particular lawsuit, with these claims, seem highly problematic -- such that even if Craigslist wins, the precedents it sets could come back to haunt Craigslist... and many other parts of the internet as well. Is Craigslist really so desperate to stop spam that it's willing to do all this other damage as well?

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Ralph Lauren And Its Lawyers Discover The Streisand Effect On Bogus DMCA Takedown

from the someone's-bright-idea dept

Will they never learn? Issuing bogus DMCA takedowns to get content down that you don't like, rather than which is actually infringing, is going to backfire. Badly. Last week, the website Photoshop Disasters put up a post showing a ridiculous Ralph Lauren ad with a woman who was too skinny to be alive. Boing Boing put up a post about it, along with the tag line "Dude, her head's bigger than her pelvis." While some have questioned whether the ad is even real, one thing is clear: Ralph Lauren was not pleased. The company's lawyers at Greenberg Traurig sent DMCA takedown notices concerning both posts. Despite Blogger's new DMCA policy, Google still quickly took down the post at Photoshop Disasters, causing the site to ask whether or not Ralph Lauren or its lawyers have ever heard of the Streisand Effect (yay). BoingBoing's host, however, doesn't automatically take content down and passed along the info to BoingBoing, who quickly pointed out that this was clearly fair use (commentary, criticism, etc.) and the DMCA takedown wasn't being used to stop infringing content, but to stifle speech.

So, not surprisingly, BoingBoing put up a nice post explaining the whole thing, including a nice quote from lawyer Wendy Seltzer about fair use... and, of course, another version of the image, and dared Ralph Lauren to sue. Hopefully Ralph Lauren and its lawyers get the message and offer a quick apology. In the meantime, it makes you wonder what the hell anyone was thinking in sending out such a bogus DMCA. Do people really not recognize the consequences?

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YouTube Smoking Guns? What Constitutes Actual Knowledge?

from the this-ought-to-get-interesting dept

With the judge tossing the Veoh/Universal Music lawsuit last month, it certainly appeared that Viacom might be on weak ground when it came to its lawsuit with Google over YouTube infringement. As with the Veoh suit (which was nearly identical) the DMCA's safe harbors on service providers almost certainly should protect the service provider from the actions of its users (which is a good and reasonable thing). However, I'd been hearing rumors for a little while now of a "smoking gun" from Viacom, and Greg Sandoval is now reporting on the same thing: that during discovery Viacom came across emails showing that YouTube employees "knew" and discussed infringing content on the site and did nothing about it. On top of that, some YouTube employees supposedly uploaded infringing content as well. The key question, then becomes, did YouTube have "actual knowledge" of infringement, and if so, does that remove the DMCA's safe harbor provisions.

But, of course, nothing is that simple. When you're talking about a corporation, what constitutes "actual knowledge"? Is it one employee knowing about things? Is it one executive? And how does fair use play into all of this? Even if YouTube employees saw content that was uploaded in an unauthorized manner, were they then supposed to make a fair use determination as well? And, of course, none of this is particularly simple. According to Sandoval, the same discovery process may have turned up the fact that Viacom employees were also caught uploading infringing materials. This then opens a whole new can of worms. If even Viacom can't determine what's infringing or what's legit, why should YouTube be expected to have that knowledge. On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn't want the same content uploaded by others? Finally, even if this does constitute "actual knowledge," wouldn't it then mean that the liability for YouTube was limited to the few files of which they had knowledge, rather than the wider spectrum of infringing content? Does knowledge of a single infringing content take away all safe harbors on the other content?

Suddenly, the lawsuit may have become a lot more interesting in that it may address some of those questions...

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Once Again, Entertainment Industry Looks To Force Massive Copyright Changes Via Int'l Treaties

from the how-the-game-is-played dept

By now you should know that one of the entertainment industry's favorite tools for forcing ever more draconian copyright laws around the world is to use international treaties. Such treaties are not put together by elected officials, but appointed diplomats, often with tremendous input (to the point of allowing them to write the details) from industries that are protected. Then, once those treaties are in place, copyright maximalists just get to sit back and say "but we must make our copyright laws stronger if we ever expect to live up to our international obligations..." The latest such attempt is the infamous ACTA bill, which the entertainment industry has had a heavy hand in crafting -- but the public is told that the treaty negotiations are matters of national security and cannot be revealed. Uh huh.

Apparently, in a recent "Working Group" on intellectual property issues in Washington DC, one area of "concern" is Canadian copyright law -- because Canada appears to be one country where (thank you Michael Geist!) the public has been galvanized to speak up and explain that copyight law is a deal between the public and content creators, and the public shouldn't be ignored in the process. But, no worries. Apparently, one lobbyist said that perhaps the best way to deal with those rebellious Canadians thinking for themselves is just to use ACTA to force Canada to implement its own DMCA-like law, something that Canada has (thankfully) rejected in the past few years. So here we go again...

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Texas Instruments Goes Legal On Calculator Hackers: How Dare You Make Our Product Better!

from the seriously? dept

I have to admit that I cannot remember where (perhaps it was in the comments on Techdirt?), but I recently saw a discussion among a few people discussing how odd it is that computers and mobile phones have advanced so much... but scientific calculators still are nearly identical as to what they were decades ago. The state of the art seems to have frozen somewhere in the 1980s. Perhaps it's because Texas Instruments, one of the major calulator makers out there, goes around threatening people who hack their calculators to run additional software on them. Apparently, the company is sending DMCA takedown notices to people who have posted code for running other software on their TI calculators. This is clearly against what the DMCA was designed to do, but is a consequence of the overly broad (and, frankly, ridiculous) anti-circumvention clause found in the DMCA.

This is a perfect example of how the DMCA is used by companies to prevent innovation, not to stop copying. Notice that there is no "copying" of any TI software going on here. It's just that in being able to run this software, apparently you need to bypass some protection measures that TI installed. Thus, TI claims, it's a circumvention and a violation of the DMCA. Of course, as the article (and various experts) note in the article, both the Copyright Office and the courts have often looked down on such blatant misuses of the DMCA, but for now the legal threats worked. The people contacted have removed the code.

Frankly, I can't fathom how this makes any sense at all for TI. Making its calculators more useful and interesting should only increase demand for the calculators. TI makes its money selling the physical product, not the software on the calculators. So what possible business rationale is there for stopping such hacking? It seems only sure to decrease the market, not increase it.

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Time For A Quick Lesson In Why The DMCA Safe Harbors Are Important And Make Sense

from the back-to-school-time dept

I've been hearing some buzzing in the last few months among folks in lobbyist circles that the entertainment industry is actually hoping to cut back on the DMCA's safe harbors. There have been murmurings along these lines in the past -- though, it rarely goes far, since the industry is also afraid that opening up the DMCA at all could lead to edits of all the other parts, which they love. Still, with the recent decision tossing out Universal Music's misguided lawsuit against Veoh, a few folks have been posting opinion pieces suggesting that the DMCA safe harbors are either outdated, or misinterpreted in the Veoh decision, and somehow against Congress's intentions. Neither claim stands up to much scrutiny, but it's worth exploring the issues, and digging in a bit so that people understand the importance and value of the DMCA safe harbors.

Two examples of this type of thinking are represented by Paul Resnikoff, of Digital Music News, who suggests that the Veoh ruling is correct under the law, but the real problem is the DMCA's safe harbors are out-dated and should be done away with (or at least adjusted in favor of copyright holders). Then there's entertainment industry lawyer Chris Castle, who suggests that the ruling itself makes no sense and leaves copyright holders "without a remedy." Castle, in his usual manner, also spends some time insulting anyone who might disagree with him as well, which is quite charming.

Law professor Peter Friedman, who knows a thing or two (or much more) about copyright, does a nice job debunking Castle's questionable thesis, but I wanted to take things back a step and discuss both why the DMCA safe harbors are smart, exactly what Congress intended, applied correctly, and why that's all a good thing -- as opposed to the suggestions of Resnikoff and Castle.

First, you have to go back to one of the reasons why the safe harbors are even in the DMCA. The entire DMCA was basically a love letter to the entertainment industry -- giving them yet another massive extension of copyright and the power to control all sorts of things well beyond the Constitutional purpose of copyright ("to promote the progress..."). The most troubling of all was the anti-circumvention clause, which effectively gave copyright holders a veto (or at least a long legal speed bump) on technological device innovation. Equally troubling is the notice-and-takedown provision, which allows for content to be taken down on accusation, rather than actual evidence of infringement.

However, if Congress was going to grant this massive expansion of rights to the entertainment industry, which would allow them to lord over various internet companies, the internet companies wanted to make sure they had one thing: protection against misapplied liability. In an ideal world, such safe harbors wouldn't be needed, because it would be common sense that you don't sue the tool maker for how the tool is used. You don't sue AT&T if someone uses a phone to commit a crime. You don't sue Ford because someone broke the law with a car. Yet, people keep wanting to sue the tools providers on the internet. So, Congress, smartly, added the safe harbors for a single purpose: to make sure liability was properly applied. Liability should be on those who actually infringe the copyrights, not those who provide the tools that were used.

How could that possibly be controversial? Resnikoff's main complaint is that it's "an impossible task" for content holders to police their own works online. To which the only reasonable response is: as opposed to what? If it's an impossible task for copyright holders, it's more than impossible for the service providers. At the very least, the copyright holders know whether or not a use is authorized. The tool provider has no idea. Plenty of smart copyright holders are now releasing content for free on user-generated content sites like YouTube on purpose. Putting the onus on Google to figure out which ones are legit, and which ones are not makes no sense at all. Resnikoff also complains that the safe harbors do not require any sort of proactive effort, such as a filter, but that is a meaningless complaint. Due to so many lawsuits and a made up threat of "contributory infringement," pretty much all serious UGC companies have installed filters anyway, to help protect themselves against an "inducement" claim. So, that's hardly a complaint.

Castle's suggestion that this acceptance of the basic DMCA safe harbors leaves copyright holders "without a remedy" is a statement wholly without support. Jammie Thomas and Joel Tenenbaum -- facing huge awards from infringement trials -- might disagree, for example. All the safe harbors have done is say that the "remedy" should be from the party actually infringing, rather than the tool provider. This was exactly as Congress had intended, and not just in-line with the law, but also with basic common sense and common fairness.

So, as you hear stories being spun about how the safe harbors are somehow problematic, take a step back and understand what they're designed to do. Most of the assumptions being used against the DMCA's safe harbors are misunderstanding their purpose, and assuming that the point of the DMCA itself is to give near total control to copyright holders (never an intention of copyright law at any time in history). Instead, the safe harbors were to make sure that liability was applied properly: on those doing the actual infringing. Those complaining about the safe harbors seem to wish for a world where liability is applied to the easiest target, rather than the accurate target. Thankfully, Congress knew better than to allow that to happen.

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Class Action Copyright Suit Filed Against Scribd... By Jammie Thomas' Lawyers?

from the say-what-now? dept

Well, this is odd. Back in March, some book publishers and authors started blaming Scribd for hosting infringing scanned and uploaded books. Of course, they ignored the fact that Scribd is quite aggressive in taking down any infringing content that it discovers, and has a filtering system to try to catch as much as possible. Under any reasonable reading of the DMCA, Scribd is protected under the safe harbors. It's not doing the actual infringing itself, but providing a tool, and it appears to go above and beyond the legal requirements in trying to help authors and publishers.

Yet, given that noise back in March, you had to know that a lawsuit was brewing, and it's not too surprising to find out that the first one filed is a class action attempt. What is surprising, however, is that the lawyers bringing the case, Joe Sibley and Kiwi Camara, are the same lawyers who represented Jammie Thomas in her recent loss to the record labels. Camara and Sibley, in that case, failed to do some of the most basic things you would have expected in such a defense (though, they were brought on to her defense just before the trial began).

Their argument against Scribd doesn't seem to make much sense at all:

"Under the aegis of self-promoting misinterpretations of federal statutes," the lawyers wrote in their complaint, "the West Coast technology industry has produced a number of start-up firms premised on the notion that commercial copyright infringement is not illegal, unless and until the injured party discovers and complains of the infringing activity, and (the) infringer fails to respond to such complaints."

That's simply not true in any sense of what they describe. None of the companies -- Scribd included -- is claiming that infringement is not against the law. They're just saying -- and the law pretty clearly reflects this -- that it is not their liability for infringements done by users. No one is denying the right of the copyright holders to go after those who actually did the uploading. Camara and Sibley seem to be making up a strawman that completely ignores the actual arguments. They continue:

"Apparently (the West Coast start-ups) believe any business may misappropriate and then publish intellectual property, as long as it ceases to use a stolen work when an author complains...Many millions of dollars have been invested in this business plan."

Again, this is simply incorrect. The businesses themselves are not doing the "misappropriating" or the "publishing." That's the entire reason for the safe harbors in the DMCA, to recognize the difference between a tool provider and a user. That these lawyers can't understand the same difference is highly questionable -- especially right after a court set Universal Music straight on the very same issue. People keep acting as if the DMCA safe harbors mean that copyright infringement is somehow not enforced, but that's a plainly wrong understanding of what's happening in the world. The entire point of the safe harbors is to make sure that the correct party is liable. It still amazes me that otherwise intelligent people can't seem to recognize this distinction.

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Linden Lab Sued Over Copied Virtual Goods

from the dmca,-anyone? dept

Way back in 2003, when Linden Lab announced that individuals owned the real world copyright on virtual trinkets they made in the game, we noted that this was a bad idea that would lead to problems. It was, in effect, taking bad real world laws and bringing them into a virtual world. It was even worse, because it was taking real world laws that were designed for a world of scarcity, and bringing them into a world of abundance -- and effectively allowing the laws to reach from the real world into the virtual world. That's a recipe for trouble.

And, indeed, a few years back there were lawsuits over "copied" products, though the main one we know of ended with both sides dropping the case. However, a new lawsuit has been filed, but this time, Linden Lab itself is a target, and the guy suing is claiming both copyright and trademark infringement. It's the same basic story. A guy creates virtual things (in this case, "sex toys") in Second Life, others copy them, and he's pissed off, so he sues. But he's suing Linden Lab, perhaps because it's better to sue a company that actually has money.

But legally, it seems like a huge longshot. The copyright claim should get tossed out pretty quickly due to DMCA safe harbors. The guy filing the lawsuit claims they don't apply "because it is aware of the rampant infringement of Alderman's copyrights and trademarks, and hasn't take proactive steps to prevent that piracy." Unless there's specific evidence of Linden Lab being informed of a particular infringement that Second Life ignored, it's hard to see how this isn't protected by the safe harbor. The trademark claim isn't covered by safe harbors (which is a problem...), but it's difficult to see how anyone could claim that Linden Lab is the one violating anyone's trademark here. Yet again... someone who can't handle the fact that digital goods are copyable feels he needs to lash out and sue everyone, rather than adapt.

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Judge Tosses Universal Music Suit Against Veoh; Safe Harbors & Common Sense Prevail

from the google-should-be-happy dept

In a ruling that has to make the folks at Google/YouTube happy (despite not being a part of the case), a judge has granted summary judgment to Veoh over Universal Music, claiming that Veoh's video hosting site is protecting from liability of infringing videos due to the DMCA's safe harbors. This case, which has many similarities to Viacom's lawsuit against YouTube, has gone against Universal Music in almost every way. This is now the second time that Veoh has had such a lawsuit dismissed, and hopefully the judge in the YouTube case recognizes that this is, in fact, the right decision under the DMCA. This latest ruling isn't a huge surprise. Earlier this year, the judge seemed to reject all of Universal's arguments for why safe harbors shouldn't apply. Universal also got smacked down (twice) in its attempt to separately sue Veoh's investors for the actions of the company's users.

While Veoh, as a company, may be struggling, this is a huge victory for common sense. This case describes exactly the sort of situation that the DMCA safe harbors were designed to deal with. A service provider who has no direct say in what content is uploaded by users should not be liable for that content. It's great that judges are seeing this, and hopefully the judge in the YouTube case sees it the same way. Veoh's case isn't "over" yet, though, since Universal will appeal -- and has already claimed the ruling is "wrong." Yet, so far odds of a successful appeal are not looking good. Hopefully, the appeals courts will also correctly interpret safe harbors (and common sense) to recognize that a service provider should never be liable for the content put up by users.

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Blogger Fixes Its DMCA Takedown Process

from the good-job dept

You may recall earlier this year that Google was accused of invisibly deleting entire blog posts on Blogger when the RIAA would send takedown notices alleging that the blog posts contained unauthorized music. This was troubling for a few different reasons. First, on the RIAA side, there seems to be something of a double standard here, as many of the record labels purposely send MP3s to music bloggers to help promote their music... but then they decide to take some down? But the bigger issue was the way that Google was handling the whole issue. Bloggers were upset that entire blog posts just seemed to disappear entirely without any notice at all. Google claimed that it was alerting the bloggers, but it didn't seem to be doing a very good job of it, and making entire posts completely disappear based on the sayso of the record labels seemed to be a bit extreme. So it's good to see that Blogger has entirely revamped its takedown process for Blogger posts that get takedown notices.

First, for those issuing the takedown, they've switched from a manual (send a fax or letter) process to an electronic one -- which has the side benefit that Google can now get those takedown notices to ChillingEffects.org much faster. Google always passes along takedowns to ChillingEffects, but when the notices were faxed or typed it took a while before ChillingEffects could get them up, meaning that if content was taken down, there was often no way for the blogger in question to understand what happened (Google says it always emails the bloggers, but not everyone's email address is up-to-date).

On top of that, Google not only will notify people via email, but will put a notification in the Blogger admin dashboard, so the next time the blogger logs in they'll see it. Finally, and most importantly, to handle the "takedown," rather than totally deleting the posts as before, the posts are switched to draft mode, which allows the blogger to see the post and change it (if necessary). This seems like a much better policy than what Blogger/Google was doing before.

The one that that still seems to be missing (at least in this description) is the counternotice process. The process described in the announcement says that bloggers can adjust their post... but what if they don't believe it's actually infringing (fair use, authorized copy, different content, etc.)? It would be nice if Google also offered an easy counternotice procedure from directly within the Blogger admin as well -- so that a Blogger who has been falsely accused of a copyright violation can quickly counternotice and get the content back up.

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As Expected, Judge Still Bans Real From Selling RealDVD

from the no-surprise dept

This will come as absolutely no surprise to folks who have followed Hollywood's self-defeating battle against Real Network's RealDVD offering. If you don't recall, Real announced a product that would let users back up a DVD in their possession. Now, it's important to understand a few basic facts: under copyright law, you are allowed to make a personal backup of something like a CD or software. That's been found to be perfectly legal fair use. So, what's the problem? Well, one of the worst aspects of the DMCA is that it includes a totally unnecessary (and constitutionally questionable) anti-circumvention clause. Basically, the DMCA says that if you circumvent (or offer tools to circumvent) any kind of DRM, you've broken the law (and here's the ridiculous part) even if the actual copying you then do is perfectly legal. Yes, it's like saying that breaking into your own house is illegal. It makes no sense at all.

Real tried to get around this issue in a clever way. It figured that if you really were limited only to being able to make a backup copy (rather than an unencrypted copy that could be passed around), then a court would have a hard time finding it illegal. And, in fact, it had some legal precedent on its side. Two years ago, a court found that Kaleidescape, makers of a super high-end DVD jukebox, was perfectly legal, since the device was clearly only designed to make personal backups, and couldn't be used to distribute content.

Unfortunately, it appears that judge Marilyn Patel (who was also the judge who killed the original Napster) disagrees. She's issued yet another injunction blocking Real from selling RealDVD, saying that it violates copyright law. Again, this isn't a surprise. She had issued an initial injunction last year, and seemed quite skeptical of Real's arguments earlier this years, declaring:

"They have the copyright. That's the issue here right? They have the copyright. They have the right to exclude."

This is only partially true. They have some rights to exclude, but those rights are limited. The question is whether or not Real's actions fall outside that limit. But Judge Patel seems to disagree entirely with the Kaleidescape ruling, on that point.

Of course, the real issue here is how pointless a move this is for Hollywood, anyway. There are tons of DVD ripping software offerings out there -- which don't even have the limitations that RealDVD does. I can't fathom who would buy Real's product in the first place, knowing that there are much better, non-limiting products out there. Yet, here was a product that was doing everything it possibly could to play within the rules to make DVDs more valuable by letting people make use of their legal right to back up a DVD they had purchased, and Hollywood wants to crack down on it? The only thing that will do is drive more people to use the other versions of DVD ripping software out there. So, congrats, Hollywood, on pushing more people -- people who wanted to be good, legal, customers of your DVDs -- to go around the law to back up their DVDs, leaving them more open to file sharing.

It's difficult to fathom how anyone could think this was a smart move by Hollywood, or even how this is a "victory" for Hollywood.

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No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles

from the no-innovation-allowed dept

This is hardly a new issue, but it's still troubling every time we hear a story like this. For years, there's been a fight over whether or not it should be legal to modify a legally purchased game console. Those in favor of the right point out that if you've legally bought something, you should always be free to tinker with it. That's just common sense. Those against it say that modifying a gaming console is done mainly to play pirated games or to cheat, which can cause problems for legit players. I find the latter responses unpersuasive, as those are technological or business model issues that can be solved in other ways, rather than a legal issue. But, thanks to that good old DMCA, that's now how the law works.

Instead, we get stories about students getting arrested for "jailbreaking" a video game console. It's interesting to see the use of the word "jailbreaking" here, as that's more commonly been applied to iPhones -- where it's common. Usually, this action has been referred to as "modding" or "modchipping" when it came to consoles. But the basic fact is that the actions are effectively the same -- and both should be perfectly legal. Modifying legally purchased hardware should never be against the law. It's possible that you could then use that modified hardware to break the law -- and no one's saying that's okay. But the act itself of modifying the devices should never be against the law -- especially where it could lead to a ten-year prison sentence, as in this case.

This particular case involves a student who would modify game consoles to let people make use of backup copies of their own games on the consoles. Making a backup copy, by itself, has been well established as being perfectly legal. The problem here (once again) is the DMCA's anti-circumvention clause, which makes it illegal to circumvent any kind of DRM, even if it's for a totally legal purpose. It's difficult to see how that's constitutional. Making it illegal to do something that's perfectly legal, just because someone puts any kind of DRM in the middle doesn't make any sense at all. It's a ridiculous scenario that this kid is now facing 10 years in jail for making video game consoles more useful, allowing people to use perfectly legal backup copies of their games. But, such is the state of the DMCA and copyright laws these days.

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