Lily Allen: It's Ok To Sell My Counterfeit CDs, Just Don't Give My Music For Free

from the confusion dept

Dark Helmet alerts us to the news that our good friend Lily Allen is back in the news discussing file sharing again. Tragically, it does not appear that she's used her "time off" to better understand copyright issues very much. Unlike nearly everyone else who complains about copyright infringement, she's apparently "all for" infringing on her copyrights, just so long as you pay someone -- even if it's the guy on the street selling the counterfeit CDs. Seriously:

"If someone comes up with a burnt copy of my CD and offers it to you for £4 I haven't a problem with that as long as the person buying it places some kind of value on my music."

Yes, so while some musicians have said they're fine with non-commercial file sharing, but are against anyone selling their unauthorized works, Ms. Allen seems to have taken the opposite approach. Counterfeit all you want, just as long as you profit from it. Yeah. Someone should explain to her the difference between price and value, and also the benefits of word of mouth marketing. But, it doesn't seem like she's much interested in actually understanding this stuff, so if you want to help her understand, maybe go set up a shop selling burned copies of her CDs, and see what happens.

Of course, if we take this seriously, it shows how little she's thought this through. Her earlier complaint was that when people file share, they don't provide money back to the artists and the labels. Of course, when counterfeiters are selling on the street, the same thing is true, but suddenly it's okay? At what point does the world realize that Ms. Allen doesn't know what she's talking about?

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Warner Bros. Shuts Down Harry Potter Themed Dinner For Infringement

from the how-nice-of-them... dept

Last month, in discussing "derivative works" on the IP Colloquium podcast, the General Counsel of Warner Bros. studios, Jeremy Williams, talked up how Warner Bros. was really careful in not just going after fans for doing fun things with the Harry Potter character, but were careful to focus just on for-profit ventures. Either they're not that careful, or someone else didn't get the message, as Warner Bros. has apparently sent out the legal nastygrams to a woman in the UK who was planning on having a fun Harry Potter-themed dinner. The dinner was a non-profit event, and it sounds like it was done mainly to make the woman's daughter (a big Harry Potter fan) happy. The article notes that the woman has had other themed nights, with other brands being happy about it and supporting the effort. But, apparently, Hollywood doesn't roll that way.

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Lily Allen No Longer in Favor Of Kicking People Offline... Just Cutting Back Their Bandwidth

from the um.-ok. dept

Well, this is getting particularly silly now. Despite claiming that she wasn't going to the meeting of various musicians in the UK to discuss Peter Mandelson's "three strikes" proposal, Lily Allen apparently did show up and said that kicking people offline was too draconian. This is, at least, a modest victory for those of us who questioned her stance. Still... it wasn't a wholesale shift. The musicians instead still agreed to support a similar three strikes plan, that just had a slightly less onerous "final solution," involving taking away most of a user's bandwidth:

"Our meeting voted to support a three-strike sanction on those who persistently download illegal files, to consist of a warning letter, a stronger warning letter, and a final sanction of the restriction of the infringers' bandwith to a level which would render file-sharing of media files impractical while leaving basic e-mail and web access functional."

That's still a pretty big overreaction to such things -- especially since none of these artists have been able to respond to the basic questions posed by many of us, asking for any evidence that the problem they face is actually unauthorized file sharing, rather than a shift in technologies and business models. Again, as we've pointed out countless times, the size of the overall UK music industry is growing, not shrinking, and those who have put in place business models that embrace file sharing have seen their own markets grow, not shrink. So, it's hard to see how the claim that "file sharing" harms the industry squares with reality. Instead, it sounds like a failure to adapt a business model is harming some artists, while other, smarter artists are doing just fine.

The group also condemned the vitriol that Allen had faced on an internet blog that she had set up to argue against music piracy.

Now, I certainly condemn any such "vitriol" as well, but again, nearly every comment I saw on the later posts on her blog were quite well thought out and well-argued. There was a lot of silly and condemnable comments on her earlier posts, but later posts brought up very good questions -- all of which Lily refused to respond to. So, I'm still having trouble believing that she shut down the blog due to any vitriol -- even if the press seems to be accepting that claim uncritically. It's also quite telling that she shut down the blog just after attention was brought to the fact that Lily herself was sharing a ton of music in the form of mixtapes.

It still seems a lot more likely that she shut down her blog not because of any vitriol, but because she was unable to respond to those questions. In fact, the brief response she had up, claimed that the mixtapes only used 30 seconds to 1 minute of songs. However, those who downloaded the mixtapes claim this is not true, and most of the songs appear to be complete versions. Furthermore, she claimed she made the mixtapes five years ago, but her own blog posts suggest it was more like three years ago... So, again, this is not vitriol, and while I'm sure there are some vitriolic commenters out there, I find it rather weak that Lily and these other musicians are refusing to respond to some very serious questions by hiding behind a claim that she was somehow unfairly "attacked." Playing victim when you were caught doing the very thing you condemn isn't particularly convincing.

I will say that I hope that many of those reasoned, well-thought out and carefully argued comments on Lily's blog before she erased it were part of what convinced her that her original support for cutting people off of the internet entirely was wrong. At least that was a small victory for reasoned debate. It's only unfortunate that once the debate started to reach more serious questions, she stopped participating. And, once again, given that she, herself, appeared to have shared a large amount of music, I have to ask if she's willing to accept the same limitations on her internet access that she came out in support of tonight. Will she accept limited bandwidth, so she can do basic web surfing and email, but no more? If not, how is that fair?

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A Teaching Moment For Lily Allen [Update: And *Poof* Goes Her Blog]

from the missing-the-point dept

In my last post about Lily Allen's hypocrisy in uploading tons of songs without authorization, while saying it's good to cut off internet access for regular uploaders, one of the commenters made a good point: we should use this as a teaching moment, to try to show Ms. Allen why her position is wrong, rather than focusing on calling her a hypocrite. And, indeed, that would be great, but it seems like a difficult lesson for some -- including Ms. Allen -- to grasp. Her response to my post seems to come up with a variety of excuses, none of which actually touch on the actual point:

i made those mixtapes 5 years ago, i didn't have a knowledge of the workings of the music industry back then...

The point is that, thanks to today's technology, it's quite easy for people to infringe while doing what they think is a good and reasonable thing. Lily, you created these mixtapes to promote both your own music and the music of others you liked. That's a perfectly reasonable thing to do. But it's infringing. Think of all the other people who are just like you 5 years ago. They don't have knowledge of the workings of the music industry, and they're trying to promote themselves or share music they like. But, based on the laws that you yourself now support, the Lily of 5 years ago might not have an internet connection. Even though the "infringement" you did was for entirely innocent reasons. How is that fair or just?

The point (and this was the same point we tried to make with our original post about copying a Techdirt post) is that incidental infringement is almost impossible to avoid. Everyone infringes in some way or another in the course of a day. One paper found that people infringe many times over in the course of a single day. Everyone does. And while your infringements are a bit more... um... blatant than most, it highlights the problem of having such a draconian action against file sharers. Cutting them off from the internet for something that everyone is doing all the time seems quite problematic, doesn't it?

So, a quick question for you, Lily: Is "well I uploaded those songs before I knew how the music industry worked" a reasonable defense to prevent Lord Mandelson from taking away your internet access or the internet access of anyone else?

As your article clearly states , lilyallenmusic.co.uk is an EMI run website, which is exactly why i don't acknowledge it (i think theres a link to it on my myspace(which i do run), thats purely because, my record contract states i cant sell my merchandise online anywhere else on the net . i don't post on there, i dont even look at it. the record company run it.

Fair enough, but really the fact that it's a major label owned site was a separate issue (having to do with EMI's claims in its lawsuit against MP3Tunes). It still doesn't change the fact that you created these mixtapes, and used them to advance your career. And now you are claiming that the very same tactics should not be allowed for others?

In your original post pushing back on the Featured Artists Coalition, you complained about how they were all big stars, and how their plan would hurt the up-and-coming artist. And yet, when you yourself were an up-and-coming artist, you used free music distribution to your own advantage. Now you're not only looking to take that option away from up-and-coming artists, you're looking to kick them entirely offline for a period of time. It seems like that's a much bigger "harm" to up-and-coming artists than people sharing their music and promoting them for free.

But just like you mocked the FAC artists for having an unfair advantage for being big, you seem to be in the same position. You want to take away tools from up-and-coming artists that you yourself used.

Anyway the snippets of songs you hear on those mixtapes are about 30 seconds to 1 minute in length, in traditional mixtape style, it is infringement, correct, but it's not my site, it's EMI's. i am not a hypocrite, i don't illegally download music, and i still think unauthorised file sharing is wrong.

But you were the one who created the mixtapes, correct? You were the one who infringed and uploaded them and offered them to the world. That they're now on a site controlled by EMI is quite besides the point.

If you truly believe that regular uploaders should have their internet access taken away, why not make an example of yourself? Why not take away your own internet access for a year to prove the point? Or do you not think the laws you want to apply to everyone else should apply to you?

Again, the whole point here is that what you did was entirely natural and made plenty of sense. Lots of people do it today. They do it because they love music. There's nothing wrong with that, and you know it (or, apparently, knew it at one point in the past). And, there are many ways to take advantage of that fact. Just as 50 Cent does. Just as you did. Going to war with the fans who made you who you are today, in part because of your own infringing behavior, just doesn't make any sense. You keep saying that file sharing harms artists, but it existed five years ago as well, and didn't harm you. It helped you. So why would you want to take that away from everyone else?

Update: Wow. In the half an hour or so that I took to write this post, Lily erased the blog post where she responded (I've got a screenshot if anyone wants to see it), and just added a note to Twitter, saying that she's shut down the entire blog due to too much abuse. Lily, it's not abuse if we're just asking you to rethink your positions that appear to not be particularly well thought out.

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Beyond Kicking People Offline, France Raises Fines For Copyright Infringement To $440,000

from the proportionate? dept

With France continuing to push for a version of three strikes legislation, the latest bill approved also happens to increase potential fines for infringement up to 300,000 euros, or approximately $440,000. Nice to see governments making sure that the punishment fits the crime, huh?

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Lily Allen Distributing Tons Of Copyrighted Music; Blows Way Past Three Strikes

from the put-the-stone-down-lily,-that's-a-big-glass-house dept

Really don't want to turn this into an all Lily Allen all the time blog, but reader Peter has sent in something rather interesting: When Lily was first trying to get attention, she created a couple of mixtapes with a ton of songs from other artists... available as MP3 downloads, and mixing in her own tracks. This is a well-known tradition in some circles and a great way to get some attention. We're all for it. But... it seems quite hypocritical of Ms. Allen to claim that file sharing is somehow evil and destroying the industry when she appears to be an active participant and used it to promote herself (oh my goodness! free music working as promotion!). According to the tracklisting of the second mixtape, it included 19 tracks by artists other than Lily Allen. Both mixtapes (mixtape 1 and mixtape 2) are available directly off of Lily's website, LilyAllenMusic.com, which has a copyright notice at the bottom from EMI.

So, when Lily notes on her anti-piracy blog that:

Also the government legislation is targeting uploaders -- people that make music available illegally

It appears that she actually qualifies. Quite directly. She's offering music from, among others, Jay-Z, Jefferson Airplane, The Specials and The Kinks. Admittedly, it's just a quick look around, but it appears many of the artists whose works she's distributing for free have no connection with EMI. Even if they did, remember EMI was recently claiming that it's never authorized MP3s for distribution for publicity purposes. Uh oh.

So... while the hypocrisy of Allen's copying a Techdirt post was still misunderstood by some (including Ms. Allen), I'm curious how anyone can say she isn't in serious trouble at this point. She claims that people who make music available illegally should have their internet connections removed. Yet, these two mixtapes, hosted directly on her own (EMI copyrighted) website, seem to suggest a pretty massive illegal distribution attempt. Given how much the music industry was awarded from Jammie Thomas and Joel Tenenbaum for distributing significantly fewer songs... not only should Allen be kicked offline, but she should be fined too. Or am I missing something from the recording industry's "education campaign" on this topic?

Honestly, this whole thing is so insane, I'm beginning to wonder if the blog and the statements from Lily Allen are really from her. How could someone who is still directly distributing free music from others from her own major label site claim a moral high ground against music being free?

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Some Questions For Lily Allen

from the once-more... dept

Lily Allen has continued to post statements from various artists on her blog against file sharing, and most are of the "yeah, file sharing, it's bad!" variety. While she still doesn't quite seem to realize what was hypocritical about her decision to copy a Techdirt post while claiming that copying was bad, she did recently post something where she tried to "answer some questions" that others seem to be having about her effort. The problem is that the "questions" she's answering aren't really the questions that people have been asking. Her explanation is that she's trying to show what file sharing is doing to new artists. Furthermore, she complains that comments about people getting cut off from the internet are misguided, since the proposals are no different than cutting someone off for not paying their bill. Then she attacks the concept that music could be free, saying:

"It's not free to make, so it can't be free, can it?"

And goes on to say that not enough people are paying for music, so that's "threatening new music." Anyway, her "answers to some questions" mostly raise more questions from me, so I'd like to present them here. If Lily Allen is serious about dealing with these issues (and serious about being "sorry" -- even if she apologized for the wrong thing), then it would be great to see her directly address these questions, rather than responding to some made up questions.

1. You claim that file sharing is harming new music. Yet, at the same time, a recent study has shown that more new music is being created today than ever before in history. Partly, that's because new tools have made it cheaper than ever to create and record new music. But those same technologies are also making it cheaper to promote and distribute that new music. All of those factors seem to outweigh the "piracy" issue. So, how can you claim that it's harming new music, when the evidence suggests more new music is being created than ever before?
2. You claim that "not enough people are paying for music." However, just a few months ago, the economists employed by PRS, which is a big part of the UK music industry, released a study suggesting that the music market was growing, not declining. They agreed that retail sales have dropped, but that live show attendance and other offerings (merchandise, etc.) have outweighed the decline in music sales. In other words, people are spending more on music, it's just going into different things -- just like 50 Cent said. Given that the economists who represent your industry are saying the opposite of what you claim must be happening, can you support the claim that not enough people are paying?
3. According to many reports, you benefited greatly yourself by promoting your music via MySpace, which allowed people to listen to your music for free. Other reports have suggested that you have complained in the past that your record label does not give you much, if any, money from CD sales. Given that you seem to have used "free music" to your own advantage in the past, how can you say that "music can't be free"?
4. You are posting your blog on a Blogspot.com domain, which is provided by Google to you, for free. It cost Google money to create this service, and all of its services, and yet it has been able to create a business model whereby it makes money by giving away certain aspects of its business for free. Google is one of the most successful companies in the world. Why do you insist with such certainty that using free as a part of a business model is a bad thing?
5. There are a growing number of artists -- big, medium and small -- who have learned to embrace file sharing, and have found that it has helped them to better connect with their audience, and when combined with a smart business model, makes them more money than in the past. Given that's the case, is it possible that the problem is artists choosing a bad business model rather than "piracy" being the problem?
6. Despite your shading of the issue, there have been and continue to be proposals in the UK that would lead to people being kicked off the internet -- yes, for a limited time, but still removed from the internet. Can you explain how that makes people any more likely to buy your music?

By the way, it's also worth noting that many of the ideas for these questions come from the comments to the post on Lily's blog. While there were some nasty and childish comments on some of the earlier posts (such as the one where she copied my post), going through the comments on this particular post show that the vast majority of them are well thought-out, well-argued and thought-provoking. And most of them disagree with Allen's statements.

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Lily Allen, Don't Apologize To Me, Apologize To Everyone Else

from the sorry,-but-that's-not-the-point dept

It seems that a few folks misunderstood the point of my post yesterday in joking about Lily Allen's double standard in ranting against unfair copying while copying blog posts from other sites. And Lily herself appears to be among those people. She's posted an apology, though, a bit petulantly, starting in all capital letters:

I THINK ITS QUITE OVIOUS THAT I WASNT TRYING TO PASS OF THOSE WORDS AS MY OWN , HERE IS A LINK TO THE WEBSIITE I ACQUIRED THE PIECE FROM . Apologies to Michael Masnick

While I appreciate the "apology," that's really missing the point. First, the reason TorrentFreak and I both brought it up wasn't because I was upset about her using the post. As I clearly said in my response, I thought it was great that she wanted to use our post, and I encouraged her to do so. The point, though, was that it was a bit hypocritical of her to be going on and on about how evil it is to copy another's work without their permission, when she went and did the same thing. Furthermore, the point is that when it's natural and easy for people to copy like that, it's time to learn to accept it and use it to your advantage. So, no apology is necessary to me. My post wasn't about you trying to pass off my words as your own, but recognizing that even you, Lily Allen copy other people's work all the time, even without realizing it.

And, yet, in the very same breath, you want to kick people off the internet for doing the same thing?

If anyone deserves an apology, it's all the people you've been blasting with this complaint that it's "piracy" that's somehow harming artists, when the actual evidence shows no such thing. Plenty of artists have learned to embrace file sharing and used it to their advantage, suggesting it's not piracy that's the problem -- it's artists unwillingness to adapt and put in place smarter business models. Running to the gov't and asking them to kick your fans off the internet isn't a new business model. So, don't apologize to me. We're happy for you to use Techdirt posts however you want. We just thought it was worth calling your attention to the fact that even you seem to have no problem copying stuff when convenient, so maybe you should think twice about blasting everyone else for doing the same thing.

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Lily Allen: Copying Isn't Alright... Unless It's Done By Lily Allen

from the funny-how-that-works... dept

The folks over at TorrentFreak alerted me to the news that singer Lily Allen, who made some news last week for speaking out against file sharing and against artists who have defended file sharing, has put up a blog, called "It's Not Alright," to talk about this particular subject. In one of her very first posts, she reposted an entire Techdirt post about 50 Cents' view on piracy and how it's part of the marketing. Allen goes on to then say that this is not alright and that 50 Cent is being selfish and isn't thinking about everyone else. But what's quite odd is that Ms. Allen, while complaining about such unfair copying, seemed to have absolutely no problem with copying my entire Techdirt post -- without credit or a link. As I said when asked by TorrentFreak for my response:

I think it's wonderful that Lily Allen found so much value in our Techdirt post that she decided to copy -- or should I say "pirate"? -- the entire post. The fact that she is trying to claim that such copying is bad, while doing it herself suggests something of a double standard, unfortunately. Also, for someone so concerned about the impact of "piracy" I'm quite surprised that she neither credited nor linked to our post. Apparently, what she says and how she acts are somewhat different. Still, Lily, glad we could help you make a point... even if it wasn't the one you thought you were making. Feel free to use any of our posts going forward as well. Unlike some, we're not scared of people copying our stuff. By the way, does this mean we can post her music to our site without crediting her now, too?

Enigmax, in his TorrentFreak post put it nicely as well:

Lilly, in isolation we don't think your copyright infringement is a big deal at all and neither does Mike, but in the arena of this debate it's still quite important. Infringing copyright these days is so easy to do, most people manage it every day in one way or another, and you are clearly no different. You probably didn't mean any harm or even give it a second thought but half a dozen clicks later and you're a pirate these days I'm afraid.

The next thing you know you've got God-knows-who accusing you in public of being an evil copyright infringer and telling you the sky's falling in. Oh, you're on your first strike now by the way. A couple more and it'll be off to Ofcom for disconnection for you young lady....

That said, I also think it's worth responding to Allen's attempted "point" in response to 50's comments:

this is particularly selfish in my view, he seems to only be thinking of how piracy effects him. What about the guys that work in the studio and the kids that run around town putting his posters up,the people that designed his artwork, the people that run his website. Is he giving them a cut of his live fee?

Wait... since when did any of those people get a cut of album sales? Really. None of them do. They all get paid regular fees for their work... and that doesn't change if 50 is making all his money from album sales or concerts. So, yes, they actually do get a cut of his "live fee." It comes in the form of regular payment for services... the same as if it were coming from album sales. And, if 50 is making even more money from those live shows, he can still afford to pay the studio guys, the street teams, the art designers and his web gurus more. So what point is Lily Allen making again? Because so far I can't figure it out...

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New Infringement Defense? 'We Don't Roll That Way'

from the well,-there's-that... dept

A bunch of folks have been sending in the story of how some of the major record labels are suing the Ellen DeGeneres show for not paying for clips of music that the show uses during something called the "dance over" portion of the show. Not having ever watched the show, I don't know, but it sounds like a brief clip of music used as an interlude between parts of the show. As plenty of people are pointing out along with their submissions, this seems pretty silly. It's not like hearing these brief musical interludes is likely to harm the market for this music. If anything, it sounds like it would only increase interest in that music from the fans watching the show. Also, it does seem a bit odd that the show would be sued just as DeGeneres is named as a judge for American Idol (though, it's important to note that it's the producers of the show being sued, not DeGeneres herself).

However, I have to admit that the most fascinating part of the lawsuit to me is the piece pointed out by Whitney McNamara discussing how those producers first responded when the labels first asked the show why they hadn't licensed the music:

According to the suit filed Wednesday in U.S. District Court in Nashville, when representatives of the recording companies asked defendants why they hadn't obtained licenses to use the songs, defendants said they didn't "roll that way."

That won't get you very far in court, but is pretty damn funny. The response from the record labels wasn't too bad either:

"As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully."

Even though it makes little sense to me, the labels are almost certainly right here, and will almost certainly win. If, somehow, the show producers could convince a judge that this use of the music was fair use, that would be a huge victory for fair use -- but seems (unfortunately) quite unlikely. Either way, the "we don't roll that way" defense is quite amusing -- especially coming from TV producers who you would think normally fall on the "stronger copyright law" side of the fence. Imagine if a file sharer used that response?

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And What's The Deal With Copyright Misuse? Seinfeld Cookbook Doesn't Infringe

from the you-can't-copyright-an-idea dept

Do we need some sort of anti-SLAPP-type law against bogus copyright lawsuits over similar ideas rather than actual copying? We've seen quite a trend in such lawsuits especially concerning people who claim to have had an idea for a similar book, movie or TV show. But, of course, copyright is supposed to be clear: it's for the expression, not the idea. Of course, at times it's quite difficult to separate the two, and with our society always talking up "ownership" of content, it's perhaps no surprise that many people seem to think that they get to own certain ideas. And then they file lawsuits.

The latest such case involves Jessica Seinfeld, Jerry's wife, who published a cookbook, "Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food." It's a pretty straightforward idea, and apparently the book has done well. That upset the author of another book on the same topic, who had apparently pitched the book idea (and had it rejected) by the publisher of Seinfeld's cookbook -- so she sued for copyright infringement. But, again, copyright doesn't cover ideas -- something you would think her lawyer would understand. Thankfully, the judge quickly tossed the case, while also taking the time to issue a bit of a thumbs-down review of the cookbook by the woman suing:

"Lapine's cookbook is a dry, rather text-heavy work," Judge Laura Taylor Swain of Federal District Court wrote in her review, while Ms. Seinfeld's "cookbook has a completely different feel and appears to be directed to a different audience."

On top of the ruling, interestingly, many people are recognizing that these types of lawsuits are really no more than PR stunts by the less-well-known author to jump on the publicity bandwagon of a best-selling author. Seinfeld's lawyers are claiming that the woman suing was just using the lawsuit as a publicity attempt, which is similar to what we've seen in other lawsuits like this one. That's why it makes sense to set up significant sanctions for actions like this, where it's clearly not a case of copyright infringement, and the lawsuit is almost certainly designed not to right some wrong, but to use the justice system as part of a PR campaign.

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Trying To Apply Rules Designed For Publications To... Coffee Cans?

from the tricky-laws dept

One of the common problems that we run into all the time is seeing courts trying to apply laws that were meant for a specific scenario to a totally different scenario. Take, for example, the question of the use of a photo on a coffee can. Let's say the photo is "infringing" on some right that was originally created to deal with publications such as newspapers or magazines. How do you figure out when the coffee can was "published"? Or is it even "published" at all? And is it republished every time a new can is sold? That's an issue faced by the California court system, as it struggles to figure out what counts as publication with a coffee can. It seems the courts agree that the coffee can is covered by a "single-publication" rule, meaning that if the image on the can is infringing or defamatory, it only counts as a single publication. But, where it's still struggling is on the date of publication issue. That's because, in this particular case, there's a statute of limitations of two years from the date of publication. But is that just when the first coffee can was sold? Or is the date of publication a running tally, so long as the cans keep being sold? And then, suddenly, you wonder: wait, why are we so concerned about infringement on a coffee can?

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Judge In IsoHunt Case Tells MPAA It Needs To Actually Prove Infringement By US Residents

from the well,-that's-a-first dept

This is a first. In the trial that the movie studios have brought against torrent search engine Isohunt, the judge has pushed back on the MPAA's claims, noting that it has failed to show any evidence of actual infringement by US users. In the past, groups like the MPAA and the RIAA have been able to get by without ever proving real infringement, but just by suggesting it must be happening. So this is quite a surprise. It makes the Isohunt case one to watch more seriously. The company may still lose the lawsuit, but at least the judge seems to want to see actual evidence, rather than having Hollywood execs insisting that these sites are killing their business just because they say so.

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iiNet Says Complying With Anti-Piracy Complaints Would Violate Telecom Laws

from the privacy-anyone? dept

We've been following the lawsuit down in Australia, where AFACT, the local entertainment industry "anti-piracy" group, has sued ISP iiNet, complaining that the ISP refused to do anything when it would send over infringement notices. From the beginning, iiNet's response has been clear:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

AFACT continues to insist that iiNet should be responsible for becoming copyright cops themselves, and had won an early battle, forcing iiNet to hand over "sample" records of users. However, Big Al points us to the latest news, where iiNet is claiming that not complying with AFACT's usual demands (it is handing over the sample data after working out the details) isn't just an issue of iiNet not wanting to be AFACT's enforcer, but that it violates Australia's telecom act, and could be a serious breach of privacy laws:

"Under the Act, it is illegal for iiNet to use customers' personal information in the manner demanded by AFACT without a court order or warrant. Breaches of the privacy provisions of the Act can attract a two-year gaol sentence."

Separately, iiNet noted:

"To examine customer communications on the basis of a third party's allegations would be a criminal act for us to engage in."

"Our starting position on this would be there is good public policy reasons for why Australia Post should not be opening your letters. And good reasons for why carriers should not be listening to your phone calls or looking at what you download. Our view is that would constitute a criminal offence."

It should come as no surprise that AFACT isn't buying this, calling it a "very novel" argument and one it hadn't seen before, and claiming that IP address information is not the sort of information that's meant to be included under the telco act, since it's not really "confidential." This case just gets more and more fun to watch (though, if I had to guess, iiNet's arguments probably won't prevail).

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Insurance Company Sues Website Offering Claim Advice... Saying It's Infringing

from the entitlement-culture dept

Yet another example of "entitlement culture," as companies misuse intellectual property law to try to prop up questionable business models, comes in this latest story, sent in by Jesse. An insurance company in British Columbia, Canada, called ICBC, is suing a website that offers advice on how not to get your insurance claim denied. Obviously, for policy holders, this is useful information. But, to ICBC, it's copyright infringement. Well, at least that's what the article linked above says. I have a hard time seeing how there's a copyright claim here -- especially since the ICBC spokesperson states that they don't have a problem with the content, and that they just have to protect their trademark. So... let's give ICBC the benefit of the doubt and assume the newspaper reporter screwed up, and this is actually a trademark claim rather than a copyright claim (professional reporters for the win, again!). Even so, this would seem like a typical "gripes site" type discussion where, as long as it's clear that the site in question is not run by the company, there shouldn't be any problem. In fact, given that the site provides useful information for ICBC customers, it's difficult to see what the problem is, other than that the insurance company doesn't like its policy holders to learn how to stand up for their rights.

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Instead Of Nasty Lawsuit Against Counterfeiter... Why Not Look At Partnership Opportunities?

from the not-everything-needs-a-lawsuit dept

It's all too common for IP lawyers to go to the legal nastygram first, rather than recognizing that perhaps the "infringement" is an opportunity. Take, for example, this (amusing) story about how when Prada, the famous design company, first got started, Miuccia Prada got angry about someone making knockoff products. Except... rather than sue Patrizio Bertelli, who was making the knockoffs, she was convinced by him to make use of his manufacturing capabilities, and the two teamed up... even to the point of eventually getting married to each other. Obviously, that's a pretty extreme example, but the key point is worth repeating: sometimes the better solution is not to freak out and sue over infringement, but to see if that infringement can be used to your advantage.

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Is One Unauthorized Copy Of Guitar Hero Worth $7 Million?

from the copyright-law-insanity dept

JJ points us to a look at some of the sillier outcomes from the $1.92 million verdict against Jammie Thomas. Based on that, for example, sharing a single unauthorized copy of Guitar Hero 4 might put you at risk for nearly $7 million. The argument is that the game comes with 86 musical tracks, and thus a single unauthorized copy could put you at risk of infringing on the copyrights of each and every one of those songs. It's difficult to see how anyone could think this is a reasonable outcome (except for the paid mouthpieces, of course). It's yet another example of just how incredibly out of touch copyright law is these days with the way content is actually used. Copyright law was designed for situations involving commercial copying, not some kid sharing a video game with a friend. The fact that the results are so out of whack with any sort of sensible response to the actions of users should be a sign that it's time to scale back the law, not to make it even more strict as the entertainment industry insists.

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Recognizing That 'Infringers' Are Actually Promoters, Why Not Reward Them?

from the smarter-business-models dept

A few years ago, we suggested that the entertainment industry could learn a lot from something that USA Today founder Al Neuharth did in the early years of USA Today: recognizing that the "thieves" taking his product without paying for it were actually his best distributors and promoters. In this case, it really was thieves -- college kids were stealing copies of USA Today. While Neuharth's lawyers suggested suing, Neuharth, instead decided to hire them as distributors, recognizing that this is what they were really doing already.

The same is quite often true with today's "infringers." Copyright law was really written for commercial infringement, and today because of its clumsy nature, it's capturing and punishing people who are really the content's best promoters and distributors. In many ways they should be rewarded rather than punished. And, it appears at least some businesses are trying to leverage that recognition. Jon Healey has the story of a product called Fotoglif that is targeting blogs and small publishers who don't have the money to license news photos. Thus, they either don't offer the photos or they use infringing images. However, Fotoglif tries to create an actual win-win situation for everyone involved, by allowing these sites to use photos for free and to profit from them. That's because the photos (licensed from the big agencies) include some small ads in them as well, with the ad revenue being split between the copyright holder, the publisher and Fotoglif.

Who knows if this particular business succeeds. I have my doubts that it can actually get enough usage or ad rates high enough to actually make it work as an ongoing business. But the general strategy, of recognizing there's a better way to build win-win business models, rather than assuming that all of the value is in the content alone while ignoring the value of so-called "infringers" promoting and distributing the content for free, is definitely a step in the right direction.

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Court Orders iiNet To Hand Over Sample Records Of Customers

from the privacy? dept

iiNet is the Australian ISP that has been standing up for its customers' rights against the entertainment industry which is suing the ISP for not magically stopping copyright infringement. iiNet's argument, from the very beginning, has been that if the entertainment industry believes that iiNet customers are breaking the law, then they should sue those customers. It shouldn't be iiNet's responsibility to act as the industry's police:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

iiNet has also raised questions about whether or not a user making use of BitTorrent is technically violating copyright, especially since they may only be sharing a tiny fragment of a file based on the way BitTorrent works.

Either way, a court has now ordered iiNet to hand over a small sampling of customer data requested by the anti-piracy group AFACT, which AFACT claims will show infringing activities on the part of iiNet subscribers. Of course, it would be no surprise at all that a group of folks hand picked by the industry can be shown to be infringing. The real legal question is whether or not (a) there's enough evidence to prove who was actually infringing and (b) more importantly, why this is iiNet's responsibility.

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Can Scraping Non-Infringing Content Become Copyright Infringement... Because Of How Scrapers Work?

from the this-seems-troubling dept

Earlier this year, we couldn't figure out how Facebook's lawsuit against Power.com made any sense. Power.com tried to aggregate various social networking accounts in a single place, so you could manage them all at once through a single interface. Yet Facebook charged the company with all sorts of complaints, including copyright and trademark infringement, unlawful competition and violation of the computer fraud and abuse act. Power.com asked for the case to be dismissed, but last month the judge sided with Facebook, but did so in a troubling way, by basically suggesting that since Facebook's terms of service prohibited these uses, it made it copyright infringement. Michael Scott points us to lawyer Jeff Neuberger's take on the ruling, and separately Tom O'Toole has a good analysis of the ruling. Neuberger states the following:

Judge Fogel concluded that the allegations of the complaint made out a sufficient claim of copyright infringement because Power Ventures "need only access and copy one page to commit copyright infringement." The court also found that the ToU prohibited downloading, scraping or distributing content from the Facebook Web site content except that belonging to the user, and that in any event, using automated methods, i.e., "data mining, robots, scraping, or similar data gathering or extraction methods" to access any content were also prohibited by the ToU. Thus, the court found that the allegation that Power Ventures accessed Facebook via automated means constituted made out a claim of direct copyright infringement, while the allegation that Facebook users utilized the Power.com interface to access their own profile pages made out claim of secondary copyright infringement.

Thus, because the terms of service said you can't do any automated scraping of the site, it's suddenly infringing? Even worse, the court found that even though the data being used by Power.com isn't owned by Facebook (it's the users') the scraping was still copyright infringement, because in order to scrape the non-infringing content, Power.com had to first "scrape" the whole page. O'Toole explains:

OK, so far the court has found that Power.com made unauthorized copies of the Facebook Web site. What about the fact that Facebook does not own the copyright in its users' profile data? Facebook surmounted this hurdle by arguing that the content of the Facebook page that surrounded the user's data is copyrightable and is owned by Facebook. According to Facebook, the Power.com scraper operated in a manner that required it to copy the entire Web page in order to extract the user's profile data....

Note that the court is conditioning its ruling on the assertion that the Power Ventures scraper necessarily copied the entire Web page before it processed the page and extracted the profile data. That comports with my (limited) understanding of how a Web scraper works. But is it true? If it were true, couldn't an argument be made that this is a fair use of the page? I'll leave that for better lawyers.

All of this seems a bit troubling, as it would effectively rule out scraping even non-infringing content, just because the scraper had to first read through copyrighted content to get to the non-infringing stuff. But, that seems to go against the entire purpose of copyright law. The fact that the scraper reads copyrighted content shouldn't mean that it's infringement. It's not doing anything with that content other than using it to find the content it can make use of. Anyway, this ruling probably doesn't mean all that much, since it was just to reject the dismissal request, but it does seem odd that the judge gave so much weight to Facebook's terms of service, and seems to indicate the mere act of scraping can be copyright infringement.

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