October 11, 2011
New Directive on Copyright Term Extension

August 29, 2011

Copyright: Forever Less One Day (by CGPGrey)

August 29, 2011
"

Only one thing is impossible to God to find any sense in any copyright law in this planet.

- Mark Twain

"

— Kapelke, ‘Piracy or Parody : Never the Twain’ (1966) 37 U Colorado L Rev 550

August 28, 2011
Copyright Infringement and Theft - The Difference

A common recurring theme in the comments here on TorrentFreak is that P2P file-sharing is ‘stealing’. While such sentiments are often expressed by the industry lobby groups, it’s completely at odds with the law. It could also be the very LAST thing those bodies want.

We get a lot of comments on articles from people saying things like “Yeah, it’s stealing. Just embrace it already” or “Good excuse to steal right?.”

There are editorials in mainstream newspapers that say “Such theft costs the copyright- or trademark-holders billions of dollars each year.

Even Vice President Biden said last year that “Piracy is theft, clean and simple, it’s smash and grab.” But you’d think a long-time lawyer and member of the Senate Judiciary would know to read the law.

The fact is that if copyright infringement was theft, then it would be treated as theft, dealt with as theft, and ‘copyright infringement’ wouldn’t exist at all. Nevertheless, the claims are often made. We’ve dealt with this topic before three years ago, focusing on UK law. So let’s take an example of a US case and see what would happen if it were tried as theft, instead of copyright infringement. The most obvious case is that of the RIAA against Jammie Thomas.

Civil trial

We all know the process. A John Doe suit is filed (over 200,000 of them in the US so far), usually amalgamated into a group for easy processing (although is legality isquestionable). This then goes to discovery, where the identity is uncovered. At this point the suit is dropped and a direct appeal for ‘settlement‘ is made. If no settlement is reached then the civil lawsuit process can be started.

In the Thomas case the civil lawsuit was filed April 2006, and has now gone on for several years; the latest activity just this last week. Civil law (17 U.S.C. § 504) provides for both actual damages AND statutory damages from $200 to $30,000 for non-willful infringement and $750-$150,000 for wilful infringement – per infringement. In three trials, juries have set the per-track damages figure for Thomas-Rasset at $9,250,$80,000 and $62,500 while the courts have twice reduced it to $2,250 per track, which the RIAA is appealing, AGAIN.

The case has now been ongoing for over 5 years, not counting the original John Doe complaint, and it has occupied hundreds if not thousands of man-hours defending it. These hours cost money, and in a civil case that means finding a lawyer willing to take it on pro bono.

At first, Thomas-Rasset retained Brian Toder as her attorney, and later switched to Kiwi Camara. The much shorter Capitol v Foster case had attorney costs of over $68,000 awarded after the RIAA dropped the case, while Atlantic v Anderson (dropped by the RIAA after 3 years) ended up with over $100,000 in costs awarded by the court.

As with all such cases the verdict is based on ‘balance of the probabilities’ or ‘preponderance of the evidence’. Quite a contrast to a criminal case.

Criminal Trial

Were copyright infringement is ‘stealing’, this would be the process Thomas-Rasset would undergo.

An investigation would be made by the police (rather than a private company, hired by the complainant). As infringement is ‘theft’ she would be dealt with under Minnesota state law, specifically Minnesota Statute §609.52. She would be arrested, charged, and taken to court. If she could not afford a lawyer, one would be provided for her. Odds are, she would be dealt with in a matter of weeks, if not days.

The theft statute values goods at the cost to buy, so the 24 tracks would each be valued at $0.99 – the cost on iTunes – for a total of $23.76. If we take the worst case scenario though, and assume a whole CD per track at $20 per CD, that still brings the total value of the theft to $480. As the value is below $500, the maximum penalty available is stipulated as follows:

In all other cases where the value of the property or services stolen is $500 or less, to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.

The trial would be judged, not on ‘balance of the probabilities’ as with a civil trial, but ‘beyond reasonable doubt’. Based on the evidence submitted in the trials so far, such a case would fail, as Ms Thomas-Rassett has never been proved to be personally responsible, only her connection and computer.

That means?

Of course, if it were just a choice of a civil suit or a criminal theft trial, then it’s clear why a civil trial is prefered, even if it is a money sink. Yet, there’s one last obstacle: The Supreme Court of the US.

In 1985, the Court ruled in Dowling v United States that copyright infringement is not theft, even when dealing with physical objects, such as vinyl records.

While industry bodies might still want to claim it’s still theft there is one simple fact that’s clear. In treating it as theft the benefit would be to the alleged infringer. A higher evidence standard, an independent investigation, legal counsel provided free for the alleged infringer, and vastly smaller penalties.

The infringement=theft argument has only one thing going for it, and that’s its emotional impact. In reality, it’s the very LAST thing they want, which is why new laws, like Protect IP and others have been pushed for many years. And again, we reiterate that we’ve dealt with the US here, laws for other countries are different, as we’ve seentwice in the past week  in Sweden, yet it’s still copyright infringement there, not theft.

If you’re confused about it still, maybe this song will help you tell the difference.

August 24, 2011
Capitol Records v. MP3Tunes, Memorandum and Order, No. 07 Civ. 9931 (SDNY Aug. 22, 2011).

August 24, 2011
Digital music locker providers do not infringe copyright, US court rules

Ambitious music streaming services launched by Google and Amazon in the US have been boosted by a district court ruling that digital music lockers do not directly infringe copyright.

In a summary judgment at a district court in Manhattan, Judge William Pauley ruled that the music website MP3Tunes.com was protected under US law because its users, not the website, were responsible for uploading the tracks and potentially infringing copyright.

Google and Amazon unveiled music lockers similar to MP3Tunes.comearlier this year, allowing listeners to upload music from their computer to the internet for playback on smartphones and other devices.

Major record labels, including Sony and EMI, had suggested that such cloud-based lockers were unlawful because they made a copy of a file without seeking permission from the rights owners. Sony at the time said it was keeping its legal options open over Amazon’s Cloud Player.

Pauley, however, ruled on Monday that MP3Tunes.com was lawful under the “safe harbour” provision of the Digital Millennium Copyright Act (DMCA), which protects online services from potential infringements by their customers.

Michael Robertson, the founder of MP3Tunes.com, said: “We’re pleased that the court upheld our fundamental business model and, more broadly, unlicensed cloud music. This is great news for those that are emulating our personal music service like Amazon and Google and those involved in lawsuits like Grooveshark.”

Robertson previous fought, and lost, a similar court battle in the late 1990s as the head of MP3.com, which offered a similar service.

Duncan Calow, partner in intellectual property at the law firm DLA Piper, told the Guardian that the ruling gave the “thumbs up” to the online locker services launched by Google and Amazon.

He added: “Ultimately, the services that will be successful are those that are able to strike a deal with content owners, so from that perspective I don’t think this will make that much difference.”

Tim Bamford, intellectual property partner at Withers law firm, said: “On the face of it, it does fall in favour of Amazon and Google as it justifies [the MP3Tunes] basic business model. Subject to the appeals process the judgment is a green light for others to jump on the same bandwagon.”

Alexander Ross, head of commercial music at the London law firm Wiggin, said the judgment made clear that the user was responsible for uploading material, rather than the service provider. But he noted that there were still legal ambiguities over how copyrighted works were transmitted over cloud players.

EMI, the label behind Jay-Z and Usher, and 14 other record labels launched the legal battle in 2008 in an attempt to force MP3Tunes.com to store a separate copy of each track, rather than one track for multiple listeners.

But although the MP3Tunes.com cloud model was ruled lawful, Pauley said the website contributed to online infringement when it failed to take down infringing material after being notified by the rights holders.

A spokesman for EMI said: “We are pleased that MP3tunes and Michael Robertson have been held liable for infringing hundreds of sound recordings and musical compositions through their Sideload and MP3tunes websites. The court’s decision confirms that businesses cannot simply pay lip service to the law while undermining the rights of the musicians, artists and writers that create popular music..”

He added: “At the same time, we’re disappointed that the court found that MP3tunes was entitled to a safe harbour for some of its conduct under the DMCA. EMI believes that companies like MP3tunes, which knowingly build a business based on stolen music, should not be entitled to any DMCA safe harbour defence.

“We will continue to fight – in this case and in the future – for the rights of our artists and writers, and to ensure that they are always properly compensated every time their music is used in a commercial setting.”

In Europe, the legality of cloud-based services remains far from clear. Neither Amazon nor Google has offered any timings for the launch of their music services outside the US. Europe has far tighter laws restricting the copying of songs, even in digital form. Strictly speaking it is still illegal in the UK to transfer a song from a CD to an iPod.

Calow said it was unclear whether the internet giants would have the same protection under European law as in the US. He added, however, that rights holders could be forced to support cloud-based services if they want the protection of the law. “European law will continue to support copyright but at the same time [legislators] need to see steps from rights holders to embrace new services,” he said.

“Since cloud is the flavour of the month, there will be a specific pressure on engaging with service provders. Whether that is sufficient to launch over here we’ll have to wait and see.”

• To contact the MediaGuardian news desk email editor@mediaguardian.co.uk or phone 020 3353 3857. For all other inquiries please call the main Guardian switchboard on 020 3353 2000. If you are writing a comment for publication, please mark clearly “for publication”.


August 24, 2011
Spotting the pirates

File-sharing rates vary hugely from country to country—with consequences for local media industries and global cultural trade

   

AT LEAST two music shops were looted during the riots that swept Britain earlier this month. In north London, a warehouse containing CDs and DVDs was set on fire. This was devastating for shopkeepers and local residents. But the British media industry may note, cheerily, that its products are still seen as valuable enough to risk a prison sentence. In many countries it is hard to conceive of looters stealing music or films from a store. In a few, it is difficult to imagine that a warehouse filled with recorded music would even exist.

Since 2000, when the file-sharing service Napster first became popular, digital piracy has dogged the media industry. Over time piracy has become more diverse and sophisticated. In some countries, rather than swapping files on peer-to-peer networks, people now stash their loot in private “cyber-lockers”. As broadband speeds have increased, pirates have gone from downloading single songs to grabbing artists’ entire catalogues. Watching pirated television shows and films online has become more popular, too.

In this section Reprints Related topics

Yet piracy has not exactly swept the world. It is endemic in some countries but a niche activity in others. In some places the tide is flowing; in others it appears to be ebbing. In response, media firms are moving their resources from country to country, with potentially large consequences for the global flow of popular culture.

Media piracy is more common in the developing world than in the rich world (see chart). The most piratical countries are places like China, Nigeria and Russia, where virtually all media that is not downloaded illegally is sold in the form of knock-off CDs and DVDs. But there is also great variation among rich countries. Piracy is far more widespread in the Mediterranean than it is in northern Europe, including Britain. America may be the least piratical country of all—oddly, since Napster was born there.

   

One reason is cost. A recent study for America’s Social Science Research Council found that DVDs of “The Dark Knight”, a Warner Bros blockbuster, were selling in Russia for the equivalent of $75 (if adjusted to take account of differences in GDP per head). In India the DVD was on sale for the equivalent of $663. Legal differences are another reason. In Germany it is easy to fine somebody for downloading music illegally; in Spain it is almost impossible. A final cause, the most intangible but probably the most powerful, is culture. In some countries copying is broadly regarded as theft; in others it is not.

Media companies care less about the causes than about the consequences. Consider Spain, which is western Europe’s leader in piracy. Last year IDC, a research firm, found that 92% of 16- to 24-year-old internet users (and fully 70% of 45- to 55-year-olds) in Spain admitted to using peer-to-peer networks. Music sales have collapsed. In 2010 barely 10m CDs were sold in the country—down from 71m in 2001. Digital sales are puny, too. “You can have a number-one album in Spain with 3,000 sales,” notes David Kassler, who manages EMI’s operations in Europe.

The result is that big labels have pruned their Spanish operations. Universal Music has shed a third of its Spanish staff. Max Hole, who runs Universal’s businesses outside America, says the firm is “holding out” in Spain, but largely in the hope that it will discover an artist who appeals to Hispanics in the United States. Mr Kassler says EMI is spending five or six times as much in Germany, a low-piracy market where music sales are declining more gently—by 11% between 2006 and 2010.

DVD sales have collapsed in Spain, too. Xavier Marchand of Alliance Films, an independent movie outfit, says that Spain has become a “1950s market” where almost all the money is made from cinema showings and broadcast-TV rights. Jeff Blake, vice-chairman of Sony Pictures, says it still makes sense to release big-budget family films like “The Smurfs” in Spain. Such films are reliable box-office magnets and sell relatively well on DVD because parents use them as electronic babysitters. But dramas aimed at young men are dicier. As a result, says Mr Blake, the Spanish “get fewer films on fewer screens, with less marketing support behind them”.

As media companies pull out of Spain, they are beefing up in South Korea. That country is the world’s 12th-biggest music market, a notch behind Spain. It will almost certainly overtake the Mediterranean country this year. Korean recorded-music sales, which collapsed in the first half of the last decade, have risen for each of the past three years. Sales were worth 207 billion won (then $179m) in 2010—up from 134 billion won in 2007.

South Korea has the world’s toughest anti-piracy laws. Almost every measure under discussion elsewhere—threatening to cut pirates’ broadband connections; blocking pirate websites; forcing youthful downloaders into education programmes; clamping down on cyber-lockers—has been done in Korea. Legal music-streaming and downloading websites have sprouted, providing many more honest ways of getting hold of music. The Korean experience may be unique: anti-piracy laws have not had such a clear effect elsewhere.

A few years ago international music firms had almost no presence in the country. Now they are coming back, according to Mayseey Leong, regional director of the IFPI, a music industry umbrella group. Universal Music began investing in Korean music in 2009. Sony Music has launched “The Secret Garden”, a music-heavy TV show, and used it to tout new singles. Warner Music Group has signed JYJ, a Korean boy band, and is exporting its schmaltzy pop to the rest of Asia.

As music firms move resources from one country to another, domestic markets are being reshaped. In 2010 Korean groups accounted for 76% of CD sales in that country, the highest share for at least eight years. In Germany, too, domestic acts’ share of the recorded-music market has risen steadily, from 29.5% in 2001 to 49% in 2010. In Spain the balance has not changed much. But the number of albums by new Spanish artists to reach the annual top 50 has collapsed, from ten in 2003 to none in 2009 and 2010, according to the IFPI.

The same is not, however, true of film. In many countries, including Spain, the domestic film business is subsidised by the government, limiting the impact of declining DVD sales. In Russia, a high-piracy market, home-grown films have lost a lot of ground to Hollywood imports. But that is at least partly because Hollywood is marketing more heavily in the country: DVD sales may be virtually non-existent, but so many screens have been built that it is now worth their while.

Hollywood’s global influence has, of course, long been resented. The worry for governments is that cultural industries like music will eventually go the way of film, with impoverished local outfits failing to compete with mighty international media giants. It is probably not a coincidence that the first country to enact a “three-strikes” law against media piracy was South Korea, a country with considerable pride in its exports, cultural and otherwise. Nor is it surprising that the first European country to follow suit was France, where worries about cultural purity and independence flow like wine.

Downloading music and films illegally from the internet appears an innocuous act—hardly as egregious as looting. But the legions of pirates are quietly reshaping world culture even so.

August 16, 2011
http://www.techdirt.com/articles/20110812/23402015511/stealing-isnt-saving-sharing-isnt-stealing.shtml

Stealing Isn’t Saving, But Sharing Isn’t Stealing

from the time-to-learn-some-economics dept

Last week we wrote about Janko Roettger’s GigaOm post concerning the fact that file sharing continues to grow. We focused on how the MPAA and the RIAA might be declaring “victory” too soon. Amusingly, the MPAA’s Alex Swartsel took offense to Janko’s article and posted one of the organization’s typically laughable responses, in which they attempt to scold Janko for his “intellectually dishonest” claim that file sharing is “socially acceptable.” Let’s just say that between the Swartsel and Janko, one of the two is in denial, and it’s not Janko. 

The part that the MPAA takes issue with is the following part from Janko’s post:

The U.S. credit ratings downgrade, tumbling stocks and international instability have made not just financial analysts nervous this week. Consumers are also starting to wonder whether we’re about to enter another recession. Whenever that happens, people start to tighten their belts and cut unnecessary expenses — like paying for movies and TV shows…. With memories of the housing slump still fresh, many people could simply return to BitTorrent and download movies for free instead of going to the movies or paying for VOD.
It’s pretty clear that there is no statement of support or cheering on or anything here. Janko is simply reporting a simple fact. Some group of people will continue to find unauthorized means of accessing content a better deal than authorized offerings. I don’t see how that’s objectionable at all. It’s a pretty easy prediction to make because who honestly doesn’t think it’s true? 

But, to the MPAA, this is “intellectually dishonest” and the equivalent of Janko supporting “shoplifting clothing.” Wow. You know what would be intellectually dishonest? Pretending that lots of people don’t use file sharing would be intellectually dishonest. Pretending that a bad economy combined with dumb moves by movie studios might drive fewer people to unauthorized file sharing would be intellectually dishonest. Repeating blatant falsehoods from the MPAA would be intellectually dishonest. Comparing stealing of physical goods to someone making a copy of a digital file would be intellectually dishonest. Calling out a reporter for accurately making a point would be intellectually dishonest. 

What’s not intellectually dishonest is accurately reporting what’s happening. 

But the MPAA and Swartsel are so in denial that apparently they’ve decided to “shoot the messenger.” This is all too typical of the MPAA. Rather than adapt and deal with reality, the folks there like to pretend the world is a very different place and will attack any messenger who shows otherwise. Honestly, Swartsel’s post reads the same way an MPAA blog post would have read a decade ago if it had a blog back then. It’s full of misleading or downright incorrect claims:
T-shirts and jeans aren’t made out of zeroes and ones, at least not yet. But just because movies and TV shows and songs can now be packaged and distributed as data, not just as film reels or vinyl records or DVDs, and can be acquired or distributed with a few clicks of a mouse, doesn’t mean that the labor and time and money that went into making them is any less meaningful.
No one — especially not Janko — has claimed that “the labor and time and money that went into making” movies is “less meaningful.” Swartsel is simply changing the topic because she can’t actually argue against what Janko has said — because it’s accurate. So she’s pretending he said something entirely different. The fact that labor and time and money goes into something doesn’t make a difference. I put “labor and time and money” into Techdirt, and then it’s my job to figure out how to make a living out of it. It does me no good to sit around and say “but I worked hard — now pay me.” 

No one cares how hard you worked or how much money you spent. People buy things based on the market. They buy things based on the intersection of supply and demand — and this is an economics lesson that the MPAA and Swartsel apparently remain ignorant of.
We doubt many people will subscribe to the kind of intellectual dishonesty that suggests that it’s fine – or really, that it’s inevitable – to steal as a way of saving. But it’s troubling that by suggesting that stolen content available on rogue sites and elsewhere is just another substitute good, Roettgers is tacitly arguing that content theft is legitimate and socially acceptable.
He made no such argument, tacitly or not. I will, however, make the argument that for a very large segment of the population, it absolutely is socially acceptable. It is not socially acceptable to me. I don’t engage in it myself and never have. But it’s intellectually dishonest to pretend that many, many people don’t find it socially acceptable. If the MPAA were really concerned about adapting to the changing market, the first step would be actually recognizing that. But that’s not how the MPAA works. It works by denying reality, and then running to Congress to get them to change the laws because its member studios don’t want to have to change. Tellingly, it appears that Swartsel’s last job was… working for Congress. 

It would be nice, just once, if the MPAA (and the RIAA) could actually be intellectually honest. If the folks there could admit some basic facts: the market has changed and many, many people find unauthorized file sharing socially acceptable. If you start at that point, and then say, “now what do we do about it?” you can come up with all sorts of productive answers. But that’s not what they do at all. They just keep trying to demonize it, and don’t seem to realize that every time they insist reality isn’t real, people trust them even less.

August 14, 2011
Yet Another Study Shows Musicians Making More Money

Musicians should be aware that it’s live performance where their money is coming from, not the sales of CD. 

August 14, 2011
CoC's 'Victims Of Internet Piracy' Look More Like 'Victims Of Propagandist Exploitation'

Nice illustrations of why the common claims that piracy hurts the artists are wrong.

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