Tag: Copyright

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How Canada’s Copyright Legislation Will Be Used

In a well-timed piece that aligns with Canada’s new copyright legislation, Techdirt describes how content owners will likely use new digital locks provisions:

The real reason why they want anti-circumvention even when there’s no copyright infringement is because it gives them a veto on any new technology. All they have to do is put in some sort of weak digital lock and suddenly the company has to “negotiate” a deal or they can be sued out of existence.

It isn’t a hypothetical ‘could content owners sue innovators into the ground’ but an action that has, and does, occur in the US. Kaleidescape, a DVD jukebox company, has been served an injunction in the US even though they enable higher degree of anti-infringement encryption than already exists on DVDs.

This is just wrong: innovative services that add value to existing products should be permitted to thrive, not be forced to beg permission to exist. The network neutrality movement is all about enabling innovators to innovate, citizens to speak, and services to interact without having to beg permission of network owners. The copyright cartels are busy crafting – and getting passed – laws that undermine the next-generation capabilities of our communications systems to protect historical revenue streams.

There comes a time that next-generation systems need to be adopted, that revenue canabalization has to occur, and new processes tested and brought to market. Our ‘new’ copyright laws are a direct threat to such innovation and risk leaving North America in a cultural ghetto at the bequest of large, democratically unrepresentative, rights holders.

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Links Writing

How Notice-and-Takedown Hurts Real People

Under DMCA rules a copyright holder can request that content hosts, such as Flickr, take down content that is believed to infringe on the holders’ copyright. Hosts will typically take down content and subsequently notify whomever posted it. The poster can then respond (after the content is already down) to argue that they were within their rights to post the content either because (a) it was the poster’s own content; (b) it was posted under fair use provisions.

Some copyright holders assert that notice-and-takedown is an acceptable approach (others insist that even this is too onerous, and that the hosts themselves should be responsible for policing their users) on the basis that if there is an error then a poster can try and remedy the take down order. Unfortunately, this assumes that whatever is taken down can be, or is, replaced in full after the order is issued. As a recent Techdirt article reveals, this isn’t always the case:

As the system “works” today, it’s open to misuse. And despite claims from proponents of the DMCA process, there’s more at stake than simply the single item in question. With one false DMCA notice, the entire history of a popular photo was erased, taking with it the story of how this “alphabet” came to be. The “notice-and-takedown” process is very obviously broken, resulting in the sort of situation Gorman has described.

When you consider the amount of damage that a single mistaken DMCA notice can do, it’s amazing that this process is still considered to be “fair” by its users. This is yet another strong argument for a notice-and-notice process in which companies and individuals would have a chance to file a counterclaim before the content is deleted, rather than having to assert their claim post-takedown and be left to clean up the resulting mess.

As someone who writes professionally I am genuinely sympathetic to copyright holders: I get that there are prospective revenue losses from infringement and acknowledge that digital copying imposes challenges for historical business models and processes. This said, if a copyright holder demonstrably fails in its due diligence when issuing a notice-and-takedown then it should be held liable, just as it is attempting to hold liable a potentially infringing user. There must be some kind of equity in the notice-and-takedown system or, better, a move to a notice-and-notice system (such as in Canada) to limit the harms that arise from poorly targeted take down efforts.

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Links Writing

MegaUpload’s Shutdown: Financial Implications for Artists

Mike Masnick points out something that a large portion of the media missed in initial discussions surrounding the MegaUpload seizures:

There’s a key point in all of this that we missed in our earlier analysis about paid accounts at Megaupload. In the indictment, the government seems to assume that paid accounts are clearly all about illegal infringing works. But that’s not always the case. In fact, plenty of big name artists – especially in the hip hop world – use the paid accounts to make themselves money. This is how they release tracks. You sign up for a paid account from services like Megaupload, which pay you if you get a ton of downloads. For big name artists, that’s easy: of course you get a ton of downloads. So it’s a great business model for artists: they get paid and their fans get music for free. Everyone wins. Oh… except for the old gatekeeper labels.

There were certainly a large number of files that were potentially infringing – with the ability to ascertain whether something is or isn’t infringing being impossible to conduct automatically using digital systems because of legal ambiguities – but there were also many clearly non-infringing files. Those that were directly uploaded by artists for download were amongst this latter category.

While some artists who have already made it big might suffer a decrease in revenue/earnings, but still enjoy a life dedicated to creating new works, those who have yet to ‘break through’ will suffer disproportionately from losing an easy-to-use service that could generate some revenue. The smallest artists lose, the largest lose, and consumers lose. I’m not even certain that the labels themselves ‘win’, insofar as generating bad will likely hinders their ability to establish strong (positive) brand relationships with prospective consumers.

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Skype, the FBI, and MegaUpload

In the aftermath of the MegaUpload seizures we’ll hopefully learn more about how the FBI gained access to Skype transcripts. As reported by CNet:

The FBI cites alleged conversations between DotCom and his top lieutenants, including e-mail and Skype instant-messaging logs. Some of the records go back nearly five years, to MegaUpload’s earliest days as a cyberlocker service–even though Skype says “IM history messages will be stored for a maximum of 30 days” and the criminal investigation didn’t begin until a few months ago.

Sources told CNET yesterday that Skype, the Internet phone service now owned by Microsoft, was not asked by the feds to turn over information and was not served with legal process.

The U.S. Department of Justice told CNET that it obtained a judge’s approval before securing the correspondence, which wouldn’t have been necessary in the case of an informant. “Electronic evidence was obtained though search warrants, which are reviewed and approved by a U.S. court,” a spokesman for the U.S. Attorney for the Eastern District of Virginia said.

…

Skype saves chat records with contacts in a directory on the local hard drive, which could be accessed by FBI-planted spyware.

While it wouldn’t necessarily be surprising if spyware was used, it would be interesting to see more details of this come to public light. Moreover, was the spyware/electronic access authorization acquired in the US and then the malware implanted on computers in foreign jurisdictions, or did it target local (American) computers? If it was implanted on foreign computers, were local authorities aware of what was going on and did they have to give their approval?

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Copyright and Valuation

A very nice SOPA infographic.

Patry, Gillespie, Wu and other academics/industry experts have (literally) written books on the absurdities concerning how the American entertainment establishment has tried to control technological development. These attempts to control technology stem from fears of what might happen to particular bodies’ revenues. Such fears tend to be hypothetical and assume that self-cannibalism of one’s own business model is inherently bad, as opposed to a necessary element of a thriving capitalist, neo-liberal, marketplace. Amazon and others have thrived on cannibalizing factions of their businesses, rightly realizing that if you get there first then you can enjoy first-mover advantage, whereas if you are the last then there is a lowered opportunity to enter into the new market environment.

Possibly the thing that sticks in my mind the most around copyright infringement comes from an economic forum I attended a few years back. One of the fashion industry’s top branding specialists was presenting and asked about how copyright threatens her (Paris, Brazilian, American) business interests.

In response, she laughed and opened a quick file off her computer. It showed just how much money the fashion industry – as a component of US GDP – was worth in comparison to the entertainment industries. Fashion was worth more than 10x as much as entertainment. After pointing out differences in scale, she simply noted that a lack of copyright protection didn’t hinder or limit brand development or product creation in fashion: instead it created a more cut throat, innovative, industry which in turn led to higher productivity and profits.

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American Internet Imperialism

Think about this for a second: you are a good, law abiding citizen, and thus break no local laws. Your state has no reason to bring criminal charges against you. Your actions, however, are provisionally criminal in another jurisdiction. As a result, despite your actions being perfectly legal in your home nation you are threatened with extradition. This is not a theoretical concern:

TVShack was a site that collected links to TV shows. Certainly, many of those shows were likely to be infringing – but TVShack did not host the content at all, it merely linked to it. Richard O’Dwyer, the guy who ran the site, was a student building an interesting project over in the UK. However, the US Department of Justice decided that he was not only a hardened criminal, but one who needed to be tried on US soil. Thus, it began extradition procedures. Even worse, nearly identical sites in the UK had already been found legal multiple times – with the court noting that having links to some infringing content was certainly not criminal copyright infringement. That makes things even more ridiculous, because extradition is only supposed to be allowed for activities that are criminal in both the US and the UK. [Emphasis added]

The implications for extradition would be significant: UK citizens could be extradited to certain countries for actions that are legal within their own nations, on the basis that they violate the laws of other countries. It is precisely this kind of process that can stifle innovation, speech, and association online. It narrows the range of speech actions whilst demanding that – prior to speaking or acting or creating – individuals consult with counsel as the first part of any serious online behaviour.

Such an approach – lawyers, then speech – is directly contradictory with basic rights that form the bedrock of our Western democracies.

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EMI Sues Irish Government

Admittedly this is a few weeks old at this point, but it’s absurd that EMI is trying to sue the Irish government for access to a bill prior to its being introduced.

EMI is effectively confessing here that it’s upset that the government isn’t sharing the bill ahead of time with EMI or others in the industry. Again, the massive sense of entitlement of these guys is such that they expect that they get to write the laws, and when they’re left out of the process, they get to sue over it. And yet, on every one of these laws, the people actually impacted by them – the public – get no real say or can’t see them. Remember ACTA? The public was left totally in the dark, while RIAA/MPAA officials and others had pretty detailed access and the ability to help craft the bills. And yet, when EMI doesn’t get to see a draft of a bill, and it makes them think that it won’t go the way they want, they sue? Damn.

If EMI (and other bodies) get access to these documents then all parties should have access to them, on grounds that the public interest groups should be on equal footing in trying to influence how this legislation is shaped prior to it’s introduction. Perhaps better would be that no one sees the legislation and that experts are ‘simply’ called in to give commentary on the legislation.

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Links Writing

Piracy as Saving History?

I haven’t seen this argument before. It’s clever: stripping DRM (and/or transforming files to be cross-compatible with a variety of software readers) means that (in theory) those files will be accessible for longer periods of time, thus letting us preserve our (digital) history. From the article:

Piracy’s preserving effect, while little known, is actually nothing new. Through the centuries, the tablets, scrolls, and books that people copied most often and distributed most widely survived to the present. Libraries everywhere would be devoid of Homer, Beowulf, and even The Bible without unauthorized duplication.

The main difference between then and now is that software decays in a matter of years rather than a matter of centuries, turning preservation through duplication into an illegal act. And that’s a serious problem: thousands of pieces of culturally important digital works are vanishing into thin air as we speak.

At issue: I’m really not sure that a total archive of everything digital is actually something that we want, or necessarily need. A LOT of books, games, poems, and so forth were lost to the mists of time, and it’s not entirely clear to me that our world has fallen apart because of such losses.

History is a patchwork that is contingent on us perceiving certain items as more or less important from a partial and retrospective position. Moreover, it should be noted that truly significant texts/poems/artifacts have historically been replicated and distributed because of their value/importance at the time. Do we necessarily need a campaign of mass piracy – under the auspice of ‘preserving history’ – to ensure that similar efforts are made to secure the most critical elements of our past? I’m not so sure.

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Links Writing

American Copyright Gone Power Mad

The fact that American copyright holders basically govern an arm of the US government that can, and is, shutting down website URLs at the TLD root is terrifying. That degree of power, however, looks like nothing compared to what happened in the recent MegaUpload takedowns. Consider the following:

The width and breadth of the global police action are simply massive, and are, quite justly, being painted as a massive over-reach. The full indictment goes so far as to mention Canadian bandwidth provider Cogent, whose headquarter employees were even held and questioned during the raids this week. Indeed, anybody who provided bandwidth, rack space or Internet services appears to have been held, questioned, and/or pressured in the global raids.

The policy of seizing domains and hardware first, without any adversarial court process, limits every person’s ability to contest American efforts to silence free speech. Moreover, the maneuvers taken impose American understandings of American law upon all people living around the world. Such actions not only makes associating with certain others, and certain behaviours, legally dangerous but given a willingness to even threaten major ISPs’ employees it suggests that even third-party data transit providers are at risk. America is (rapidly) developing a policy process and technically-informed system capable of censoring any communication, any speech, any uploaded data that its rights holders believe might damage those corporations’ economic interests.

In the 30s and 40s there was a name for this kind of behaviour: fascism. We’re now witnessing the final stages of what was intended to be the greatest republic in the world go the way of Italy. All that stands between the RIAA and running considerable elements of American law enforcement are the courts.

God save us all.

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Why Papers Books Beat iBooks

Dieter Bohn, over at The Verge, has a masterful analysis of paper-based books versus Apple iBooks (and eBooks in general). A few choice quotations are below, but you should really just take a few minutes of your day and go read the whole article.

 The list of “specs” for your standard paper book gets surprisingly long when you expand your definition of technology to include elements that don’t require a computer chip.

  • Readable with any form of light
  • Very high contrast display
  • Requires no battery power
  • Depending on model, lasts anywhere from five to five thousand years or more
  • Immersive and non-distracting user interface
  • Offers a spatial layout for immediate access to random information
  • Conforms to the standardized “page number” spec for easy reference
  • Supports direct interaction via pen or highlighter
  • DRM-free for easy lending and resale
  • Standards-based system not controlled by any single corporation or entity
  • Crash-proof and immune to viruses (though vulnerable to some worms)
  • Easy to learn user-interface consistent across most manufacturers
  • Supports very large number of colors and also black and white images
  • Compatible with a wide variety of note taking systems

…

I understand that free and open access to paper books isn’t available everywhere, that various hegemonies have stifled and do stifle dissent. Books can be burned, banned, and censored. But if we are going to be putting our collective knowledge into digital formats with DRM, we are adding another layer of possible censorship on top of the layers of control we already contend with. This isn’t (entirely) paranoia that Apple or Amazon will control access to human knowledge, it’s also a practical concern founded in the experience of being blocked by poorly designed DRM.

….

The thousand year view is simple: if you’re going to commit knowledge to writing in some form, you need to ensure that it will exist and be readable in a thousand years. I can tell you that I’ve personally gained insight and understanding about our world by reading a lightly-distributed instruction manual for rural, parish priests in England — written in the fourteenth century. Will an independently-created iBook 2 textbook be around in the thirty first century?