There just seems to be something about the way that some people’s brains function (or not) when the word “piracy” is introduced. Over in Ireland, there’s been an incredibly long running battle over whether or not internet access providers need to kick people off the internet if they’ve been accused (not convicted) of file sharing three times. Such “three strikes” rules have been put in place in a few countries, and the evidence shows that they don’t work at all. Not even in the slightest. They don’t slow down the rates of piracy for any extended period of time (sometimes they show a very brief drop before people figure out other ways). They certainly don’t lead more people to buy content. France, famously, led the way with the very first three strikes law, which the country has already dropped.
Over in Ireland, the fight over three strikes has been going on for nearly a decade. Back in 2008, the recording industry sued Eircom, the large Irish ISP, claiming that the company was required by lawto implement a three strikes regime. Eventually, in an effort to avoid legal costs, Eircom caved andagreed to implement a three strikes plan, but with a condition: the recording industry also had to pressure competing ISPs to implement a similar plan so that Eircom customers didn’t go fleeing. The recording industry did just that. The ISPs pushed back and seemed to be vindicated when the Irish Data Protection Commission ruled that a three strikes plan violated consumer privacy, and Irish judges found no legal basis for such rules.
Of course, the recording industry fought back, and a court flat out rejected the Data Protection Commission’s findings, and insisted there wasn’t any privacy issue at all with three strikes.
And, thus, we get back to the lawsuits against ISPs with a judge now ruling against ISP UPC and making some rather astounding statements in the process. The judge, Brian Cregan, appears to have become a true believer in the myths that the recording industry is spreading, and to him “piracy” seems to justify any and all punishment, without any clear concern as to whether or not anyone’s actually broken the law, or whether or not three strikes plans even work. These quotes are fairly astounding:
Mr Justice Cregan said that there was “wholesale theft” taking place on the UPC network. He said that the constitutional rights of “a whole class of persons are not just being infringed but are being destroyed”. The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.
Except, that’s not true. Copyright infringement and “theft” are two separate (and very different) things. And, no constitutional rights are “being destroyed” at all. If someone’s rights are being harmed via copyright infringement, those individuals or companies have every right to bring legal cases against those who are the ones actually engaging in infringement. Arguing that ISPs should automatically cut people off of the entire internet based merely on accusations (that have a long history of not being accurate) would seem to be “destroying” the due process rights of many more people than any copyright infringement. Besides, I would also think that “a matter of great concern to any civilized society” would be things like “due process” and better enabling communications and access to information for all — like the internet does. But, no. If you happen to download a song you like without paying for it, apparently you should be barred from the internet.
“The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity.”
Two points on this. Any realistic look at “the current generation of writers, performers and interpreters of music” would recognize that it is an amazing time to be a creative personbecause of the internet. Thanks to the internet, artists no longer are solely reliant on giant gatekeepers to pick them out of everyone else. Instead, they can use these platforms to create, to connect with fans, to promote, to distribute and to monetize their works. More words are being written, more videos are being filmed and more music is being recorded today than any time in history. It’s difficult to see how one can possibly square that reality with this fantasy world of Judge Cregan’s in which he believes that writers, performers and musicians are in trouble.
The reality is that it’s merely the business models of the old gatekeepers that have been challenged. But that is the nature of the free market. If you cannot keep up with the changing times, you go out of business. But Cregan has apparently decided that the world should always look like it did briefly in the 1980s, and the internet upsets all of that, so clearly, it’s the internet that should go.
Not only did Judge Cregan decide that UPC needs to put in place a three strikes plan, but that it should have to cover most of the costs itself, apparently blaming the technology itself for the struggles of the legacy recording industry:
Mr Justice Cregan said the cost of setting up this system had been put at between €800,000 and €940,000, three-quarters of which UPC had argued should be paid for by the music companies.
The judge said however given the music companies’ constitutional rights “are being destroyed” by UPC’s customers, he believed UPC should pay 80 per cent and the music companies the rest.
Cregan is apparently so sure of himself on this issue — despite what appears to be an astounding confusion over what’s actually happening in the world, that he further rejected UPC’s argument that this is a matter for the legislature, not the courts. Instead, Cregan seems to believe that the courts can magically will into place a new regulation kicking people off the internet. He further rejected requests to refer this matter to the European Court of Justice, insisting that his interpretation of the law is plenty.
Category: Copyright
New Pirate Bay Blockade Foiled By Simple DNS Trick
One of the major strategies of the world’s leading entertainment companies is to have sites like The Pirate Bay blocked at the ISP level. The idea is that when subscribers can’t access ‘pirates’ sites they will flock to legal alternatives.
While there can be little doubt that some will take the opportunity to test out Netflix or Spotify (should they be available in their region), other users will be less ready to take the plunge.
In Spain, where online piracy is reportedly more widespread than most other European countries, users faced a Pirate Bay problem on Friday when a judge ordered the country’s service providers to block the site within 72 hours.
Some ISPs blocked the site immediately, provoking questions of where to get free content now that The Pirate Bay is off-limits. Of course, there are plenty of alternatives but for those a little more determined, access to TPB was just a click or two away.
The problem is that for whatever reasons, thus far Spanish ISPs are only implementing a Pirate Bay ban on the most basic of levels. In the UK, for example, quite sophisticated systems block domain names and IP addresses, and can even automatically monitor sites so that any blocking counter-measures can be handled straight away. But in Spain users are finding that blocks are evaded with the smallest of tweaks.
By changing a computer or router’s DNS settings, Spaniards are regaining access to The Pirate Bay in an instant. Both Google’s DNS and OpenDNS are reported as working on several Spanish discussion forums.
Cox Refuses to Reveal Financials in “Repeat Infringer” Piracy Case
Every month copyright holders and anti-piracy groups send hundreds of thousands of takedown notices to Internet providers.
These notifications have to be forwarded to individual account holders under the DMCA law, to alert them that their connection is being used to share copyrighted works without permission.
Cox Communications is one of the ISPs that forwards these notices. The ISP also implemented a strict set of rules of its own accord to ensure that its customers understand the severity of the allegations.
According to some copyright holders, however, Cox’s efforts are falling short. Last December BMG Rights Management and Round Hill Music sued the ISP because it fails to terminate the accounts of repeat infringers.
The companies, which control the publishing rights to songs by Katy Perry, The Beatles and David Bowie among others, claim that Cox has given up its DMCA safe harbor protections due to this inaction.
The case is a critical test for the repeat infringer clause of the DMCA and the safe harbor protections ISPs enjoy. In recent weeks both parties have started the discovery process to gather as many details as they can for the upcoming trial.
Cox, for example, is looking into the ownership of the 1,000 works for which they received seven million DMCA takedown notices. In addition, the ISP also wants an expert opinion on the source code of the Rightscorp’s crawler that was used to spot the alleged infringements.
For their part, BMG Rights Management and Round Hill Music have asked for details on Cox’s policy towards repeat copyright infringers and extensive details on the company’s financials. The ISP believes the latter request is too broad and as a result is refusing to produce the requested documents.
In a response the music companies have filed a motion asking the federal court to force the ISP to comply. Among other things, they argue that the financial details are needed to calculate damages and show that Cox has a financial motive to keep persistent pirates on board.
“The financial information that Cox refused to produce is directly relevant to Cox’s strong motivation for ignoring rampant infringement on its network because ignoring this infringement results in a financial benefit to Cox,” they argue.
“Moreover, Cox’s financial motivation for refusing to take meaningful actions against its repeat infringing customers is important to both the knowledge element of contributory infringement and the financial benefit element of vicarious liability,” the music groups add.
In its response Cox states that the rightsholders’ demands are too broad since the documents requested include those related to the ISP’s market share, capital expenditures, profits per customer for each service, and so forth. According to Cox most of the information is irrelevant to this case.
“Plaintiffs’ document requests seek virtually every financial record that Cox maintains about its internet Customers and its provision of internet services,” Cox notes.
The ISP says it’s willing to share some financial detail but with a far more limited scope than demanded by the rightsholders.
“To be clear, Cox has been and remains willing to produce high-level, aggregate financial data of the kind that courts permit in cases involving statutory copyright damages, for example corporate tax returns. But Plaintiffs have never offered to entertain even minor limitations to the scope of their discovery requests, making any compromise effectively impossible,” the ISP notes.
The court has yet to decide how many of its financial secrets Cox must reveal but judging from the demands being made from both sides, it’s clear that we can expect more fireworks during the months to come.
MPAA Wanted Less Fair Use In Copyright Curriculum
During the summer of 2013 we voiced our doubts about an initiative from the Center for Copyright Information (CCI).
The group, which has the MPAA and RIAA as key members, had just started piloting a kindergarten through sixth grade curriculum on copyright in California schools.
The curriculum was drafted in collaboration with iKeepSafe and aims to teach kids the basics of copyright. Unfortunately, the lesson materials were rather one-sided and mostly ignored fair use and the more flexible copyright licences Creative Commons provides.
These concerns were picked up by the mainstream press, creating a massive backlash. The CCI and other partners emphasized that the pilot was tested with an early draft and promised that the final curriculum would be more balanced.
In the months that followed the lesson plans indeed got a major overhaul and last summer the “Copyright and Creativity for Ethical Digital Citizens” curriculum was finalized.
As reported previously, the new and improved version was indeed expanded to discuss fair use principles and Creative Commons licenses. However, as far as Hollywood is concerned it now includes too much discussion on fair use.
TorrentFreak received a copy of a leaked email the MPAA’s Howard Gantman sent to various insiders last summer, explaining what happened. It starts off by mentioning the negative response to the leak and states that the MPAA and RIAA will try to keep a low profile in future, probably to prevent another wave of critique.
Court Orders ISP to Disconnect Internet Pirates
Half a decade ago the Irish Recorded Music Association (IRMA) ended legal action against local ISP Eircom when the ISP agreed to force a so-called “three strikes” regime on subscribers.
The agreement saw IRMA-affiliated labels including Sony, Universal and Warner tracking Eircom subscribers online and Eircom forwarding infringement notices to alleged pirates. It was envisioned that those caught three times would be disconnected from the Internet.
In a follow-up move IRMA tried to force another ISP, UPC, to implement the same measures. UPC fought back and over the past several years the matter has dragged on through the Irish legal system.
In January 2015 the case was again before the Commercial Court, with IRMA looking to force a so-called “graduated response” scheme onto UPC and the ISP trying to avoid one and its costs.
The High Court handed down its ruling Friday and it amounts to a massive victory for the labels, a depressing defeat for UPC, and a major concern for the rest of Ireland’s ISPs.
Brushing aside arguments by UPC that it’s not an ISP’s job to police its subscribers’ activities online, Justice Brian Cregan sided almost entirely with the labels.
“The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity,” he said.
After ordering UPC to implement a “three strikes” system including the disconnection of repeat offenders, the Judge then informed the ISP it would be picking up most of the bill.
According to Independent.ie the system will cost between 800,000 euros and 940,000 euros to set up. UPC offered to pay 25% of these costs but the Judge disagreed and ordered the ISP to pay 80%.
But it doesn’t end there. Yearly running costs are estimated to be between 200,000 and 300,000 euros or, to put it another way, close to one euro for each of UPC’s 360,000 subscribers.
Then, in a move apparently aimed at keeping costs down, the Judge ordered that the number of warning notifications going out to subscribers should be capped at 2,500 per month instead of the 5,000 originally proposed. That means that even if the staggering setup costs are ignored, each notice could cost 10 euros to send out.
The case was adjourned until next month to allow UPC and the labels to prepare submissions on how Justice Cregan’s order will be implemented. In the meantime the rest of Ireland’s ISPs will be nervously checking their bank balances in the event that they too are required to implement a similarly costly system.
EU announces plans to banish geo-blocking, modernize copyright law
At the heart of the European Union lies the Single Market—the possibility for people to buy and sell goods and services anywhere in the EU. So it is ironic that the European sector least constrained by geography—the digital market—is also the least unified. To remedy that situation, the European Commission has announced its Digital Single Market Strategy, which addresses three main areas.
The first is “Better access for consumers and businesses to digital goods and services” and includes two of the thorniest issues: geo-blocking and copyright. As the EU’s strategy notes, “too many Europeans cannot use online services that are available in other EU countries, often without any justification; or they are re-routed to a local store with different prices. Such discrimination cannot exist in a Single Market.”
There is strong resistance to removing geo-blocking, particularly from copyright companies that have traditionally sold rights on a national basis and which therefore want geo-blocking to enforce that fragmentation. The Pirate Party Member of the European Parliament (MEP), Julia Reda, quoted a fellow MEP justifying geo-blocking as follows: “I can’t buy Finnish bread in any German supermarket or bakery. Far too few people here would buy it, so the market doesn’t offer it to me. And you don’t see me demanding that the European Commission bloody-well make that product available to me.”
Copyright Bots Kill App Over ‘Potentially Infringing’ Images, Follow This Up By Blocking App For Use Of CC/Public Domain Images
With bots performing all sorts of intellectual property policing these days, fair use considerations are completely off the table. Nuances that can’t be handled by a bot should theoretically be turned over to a human being in disputed cases. Unfortunately, dispute processes are often handled in an automated fashion, leading to even more problems.
Tolriq Yatse, the developer of a popular Xbox Media Center (XMBC) remote control app for Android phones, ran into this very problem with Google’s Play Store, which suddenly dumped his app over “intellectual property violations” after more than 2 years of trouble-free listing. This might have been a quick fix if Google had been more forthcoming with details, but all Yatse received was a brief notice as his app was removed from the Play store.
Nothing was changed at all apart filling the new forced content rating form and suddenly lost all my revenues.
I hope someone human answer with details soon, but I’m joining the anger from all developers around about how #Google treat devs, take 30% share without problem but certainly do not do support or act as human when killing someone.
His complaints reached his fans and customers, who then made their presence felt. This finally prompted a Google human to give Yatse the details he needed so he could fix his app and get it relisted.
Hi Tolriq,
Thank you for your additional comments.
As previously explained, your promotional images include content that you do not appear to have permission to distribute. For example, images related to films are most likely protected by the various studios that produced and released them. It is reasonable to assume that these would not be made legally available in public domain or via Creative Commons as most studios are extremely protective of their intellectual property. The same could be said of images from various TV series…
This part of Google’s response refers to screenshots used in the app’s listing. They used to look something like this…
The images used here are only indicative of the app’s capabilities. Even if (obviously) unlicensed, the app doesn’t promise anything more than control of XBMC content. It doesn’t promise access to studios’ offerings or otherwise act as a movie/TV show portal. In this context, the movie posters displayed in the screenshots would appear to fall under “fair use.” Google’s response to Yatse indicates that, even with a human now involved, the Play Store won’t tolerate the use of unlicensed images in “promotional” screenshots.In fact, fair use isn’t even discussed. Instead, Google asked Yatse to prove ownership of the disputed artwork before the app could be relisted.
If you are able to prove otherwise, either via direct authorization from a studio representative or the location where you sourced these images (public domain and/or Creative Commons), we could review that information and reconsider the merits of this case.
The motivating factor for this non-consideration is potential litigation, according to the Google Play Team.
This may represent a change from two years ago in that most studios today will file complaints over use of their content unless someone has entered into an agreement with them on some level, and that should not come as a surprise to you.
Even with a direct response, there are still some gray areas the developer is left to address himself.
We are unable to provide specific guidance as to which images may be allowed, but we trust that you will use your best judgment based on what we have mentioned above and in previous communications.
As Yatse points out, this isn’t good news for developers.
The answer is very interesting for all Google Play developers :
– Google will remove your application on suspicions and not on real facts.
– No human will check what you upload or say.
– It’s nearly impossible to have a real contact and support.
– You need to try to fix problem yourself without details and hope to have it fixed before ban. (Very hard when in fact there’s no problem)Google Play has moved to preemptive takedowns, unprompted by studio complaints. This isn’t a good thing. It may protect Google (but only slightly, considering the studios’ ongoing antipathy towards the tech company) but it does nothing for developers whose sales it takes a portion of.
In response, Yatse has swapped out the offending artwork for CC-licensed and public domain works. But even that wasn’t enough for the Google bots. Those images had to be removed before his app was approved for relisting.
#Yatse is now back on Play Store, without any images until I can figure out what the Google bot does not like in open sources ones.
This understandably limits his options and makes it much harder to convey the app’s functionality. Here are the screenshots currently available at Google Play, which show that Yatse (the app) is probably some sort of remote control program and has some color options.
So, based on no complaints from studios or other rights holders, an app comes down. And even with the use of properly-licensed images, it fails to be reinstated. And throughout all of the discussions, fair use isn’t mentioned a single time. That’s the reality of preemptive IP policing, and it’s unlikely to change anytime soon.
Popular Torrent and Streaming Sites Blocked in Denmark
For nearly a decade Denmark has been a testbed for pirate site blockades. The first blocks were ordered back in 2006 after music industry group IFPI filed a complaint targeting the Russian MP3 sites AllofMP3 and MP3sparks.
Not much later Denmark became the first European country to force an ISP to block access to The Pirate Bay.
After some small additions during the years that followed, a Danish Court has now ordered another round of pirate site blocks, the largest one thus far.
Following a complaint from the local Rights Alliance (RettighedsAlliancen) group the blocklist was updated with 12 popular torrent, streaming and MP3 download sites.
The new domains are free-tv-video-online.me, watchseries.lt ,solarmovie.is, tubeplus.me, mp3vip.org, rarbg.com, extratorrent.cc, isohunt.to, eztv.ch, kickass.to, torrentz.eu and music-bazaar.com.
Due to a recent agreement the sites will be blocked by all ISPs, even those not mentioned in the lawsuit. Late last year Rights Alliance and the telecommunications industry signed a Code of Conduct which ensures that blockades are put in place country-wide.
Malibu Media v. Roldan: the battle continues
What would arrogant megalomaniac like Keith Lipscomb do when he is royally fucked up? He’d blame the opposing counsel! It happened so many times that it’s not funny anymore. Jonathan Phillips and Morgan Pietz were accused of being members of a “fanatical Internet hate group,” Gabriel Quearry tweeted the fact that XArt owners are filthy rich to “pirates,” and Jason Sweet was declared a “well known anti-copyright lawyer.” It seems that daring to interfere with a well-oiled extortion machine while being ethically and professionally superior to crooks from 2 South Biscayne penthouse will most definitely result in a couple of disparaging labels.
Now Cynthia Conlin joined the club.
On 3/25 Lipscomb filed a motion for sanctions against the defense counsel. You have to read it to believe. Meriam-Webster must consider another example to illustrate the entry for the word Chutzpah. Essentially, the troll claims that it was Conlin’s fault that her innocent client was humiliated by the accusations of torrenting “barely legal” pornography. It was her fault because… she withheld some of the exculpatory evidence proving her client’s innocence — in a conspiracy to ramp up attorney fees
U.S. Government Wins Dozens of Millions From Kim Dotcom
This also ensures that Dotcom won’t have money to defend himself…
Following the 2012 raid on Megaupload and Kim Dotcom, U.S. and New Zealand authorities seized millions of dollars in cash and other property.
Claiming the assets were obtained through copyright and money laundering crimes, last July the U.S. government launched a separate civil action in which it asked the court to forfeit the bank accounts, cars and other seized possessions of the Megaupload defendants.
Megaupload’s defense heavily protested the request but was found to have no standing, as Dotcom and his colleagues can be seen as fugitives.
A few hours ago District Court Judge Liam O’Grady ordered a default judgment in favor of the U.S. Government. This means that the contested assets, which are worth an estimated $67 million, now belong to the United States.
“It all belongs to the U.S. government now. No trial. No due process,” Dotcom informs TF.
More than a dozen Hong Kong and New Zealand bank accounts have now been forfeited including some of the property purchased through them. The accounts all processed money that was obtained through Megaupload’s alleged illegal activities.