Necessity knows no laws – the role of copyright pirates in the cultural ecosystem from printing to file sharing networks
This is the title of my PhD turned into a forthcoming book in Hungarian.
 In this book my aim was to look beyond the legal and economic readings of contemporary western copyright piracy and understand it as a unique social practice that merits attention not only because of its dubious legality, ubiquity, or the havoc it has played with copyright-based business models, but first and foremost because it shapes the ideas and attitudes of millions of netizens about what intellectual property is and could be; what sharing and online cooperation means in a p2p setting; what privacy is and how it can be protected; how to form and negotiate online identities in an anonymous environment, just to name a few issues. Piracy is not just a drain on the cultural economy, but a powerful productive force whose legacy in social relations will stay with us long after the economic conditions that called it into being –and the power vacuum that enabled it – have passed.
The notion that piracy is more than just a legally contested shadow economy is further supported by the body of research that documents historical examples of copyright piracy either from a social/media history, literary studies perspective (Bender & Sampliner, 1996-1997; Darnton, 2003; Feather, 1987; Heylin, 1995; Judge, 1934; Kaser, 1969; Pollard, 1916, 1920; Rose, 1993; Wittmann, 2004, Johns 2010) or from a legal history standpoint (Khan, 2002; Khan & Sokoloff, 2001; May & Sell, 2006; Redmond, 1990; Scott, 1998). These historical accounts of copyright piracy describe the internal norms of information markets both before and after the establishment of national and international layers of regulation. The faces, motivations, and fates of the copyright pirates are many, but there is one thing that is common to all of them: they all exist in the extra-legal domain at the edges of state authority. In this semi-autonomous space, “Honor Amongst Thieves,” “synthetic copyright”, entries in the Registry of the Stationer’s Company, server-enforced share ratios, and other non-legal structures organize pirate activity. In each and every case we find norms that — while competing with the legal – act to encourage the production of a common pool resource, offer methods to settle disputes and limit free-riding. In other words these bottom up norms sometimes substitute, sometimes replicate state sanctioned layers of regulation that are missing or being denied.
Why is the study of piracy especially interesting today? For several reasons. First, even though on paper we have seen a steady strengthening of the protection of Intellectual Property, the inability to enforce them resulted in a significantly weaker copyright protection than any time during the last hundred years. That vacuum is partly caused, partly filled by the competing, bottom up norms of file-sharing communities. The weakened property rights, along with the emergence of filesharing networks created a de facto common pool of resources from the musical, audiovisual, textual works circulating in the digital underground. This commons has proved to be quite resilient to attacks from the outside as well as to those internal issues that can lead to a tragedy of commons. Many file-sharing communities seem to have successfully solved the problems of managing a common pool resource as well as protecting it from – in this case (re) – enclosure. There is, however, little to no research on the actual mechanisms of how these commons are maintained, protected and replenished. Only a few unconfirmed accounts describe the internal workings of online cultural black markets (b-bstf, Summer 2004; Howe, January 2005).
Second, even from these shallow accounts it is evident that non-monetary incentives and complex social motivations play a crucial role in the existence and successful survival of file-sharing communities and of those resource pools around which these communities gather. To illustrate this point it is worth examining the ways community norms manifest themselves in the technological restraints and defaults (Strahilevitz, 2003). Employed at the level of both software clients (like the design principle of bittorrent) and servers (minimum shared library size or upload/download ratio) technology is fine-tuned to reflect the characteristics of content flows, the relative popularity of different titles, the aesthetic judgments, and the thematic preferences of file-sharers. Global, open, mainstream bittorrent trackers for example set no minimum level of contribution – they rely on the sheer number of users and the loyalty of some to provide the necessary level of resources for all. On the other hand, while many national level trackers prohibit the exchange of current local goods, they highly reward the making available of local back catalogs and out of print works. Some allow only a trusted circle of releasers to provide them with digital copies of new titles. Others allow, even encourage each and every user to upload and seed whatever they see fit. From this latter group some set and enforce highly detailed technical specifications regarding video encoding, sound quality, etc. Others provide the community collaborative filtering tools to assess the quality of contributions. Beyond the technologically enforced compulsory rules, informal community norms encourage voluntary cooperation. The exclusivity, notoriety of some communities guarantees a loyal and enthusiastic user base. Their fame inspires others into competition, trying to replicate their success. Many fail, a few prefer to stay small and secluded, but some develop into big, extraordinarily powerful underground marketplaces.
Third, none of these subtle differences between different pirate communities is described with the current economic and legal language used to discuss copyright piracy, despite the fact that they have profound economic and legal consequences on legal markets and on general copynorms (Schultz, 2006) alike. Current discourse on copyright piracy tends to homogenize a wide variety of fundamentally different practices with reductionist legal /economic arguments.
Following the footsteps of Lessig (2004) I hope that the time is now ripe to step beyond the monolithic understanding of p2p file-sharing by enriching the currently fragmented research landscape with a social-sciences based piracy research that
- describes the role copyright pirates played throughout the history of printing,
- describes the international flow of intellectual property to explain piratical states such as China,
- based on these findings situates current file-sharing and assesses its impact on legal markets.
Techdirt
We were just talking about whether or not countries are really able to push back on the US’s attempts to export draconian anti-competition/anti-innovation copyright and patent policies elsewhere. Michael Geist points us to two cases where US trade representatives are going overboard in trying to get foreign countries to put in place stringent intellectual property rules. The first is in Costa Rica, which is included in the Central America Free Trade Agreement (CAFTA). Yet like with other free trade agreements that the US has agreed to elsewhere, this one includes draconian intellectual property law requirements. I still cannot understand why intellectual monopoly protectionism — the exact opposite of “free trade” — gets included in free trade agreements. At least in Costa Rica, a lot of people started protesting these rules, pointing out that it would be harmful for the economy, for education and for healthcare. So the Costa Rican government has not moved forward with such laws. How has the US responded? It’s blocking access to the US market of Costa Rican sugar until Costa Rica approves new copyright laws. Nice of the US, right? Bankrupting Costa Rican farmers to force Costa Rica to put in place a copyright regime it does not want.
Then there’s the Bahamas, where US trade representatives are demanding new intellectual property laws, claiming that the country is not in agreement with WTO treaties. Apparently, the USTR is particularly upset about the police force in the Bahamas not cracking down on the sale of unauthorized DVDs, CDs and counterfeit clothing. However, as the Bahamas Chamber of Commerce president notes, nearly all of those counterfeit products actually originated in the US — and that the majority of people doing the buying are US tourists. In other words, the issue is really with the US, but it seems to want everyone else to deal with it.
TorrentFreak
Lawyers have presented their final arguments in the trial of Alan Ellis. The prosecution slammed the ex-OiNK admin, saying that the site was set up with dishonest and profiteering intentions right from the start. The defense tore into IFPI and countered by calling Ellis an innovator with talents to be nurtured. Today the jury returned a unanimous verdict of not guilty, and Ellis walked free.
After a very long wait of more than two years, last week the OiNK trial got underway with the prosecution making their case against Alan Ellis. This week it was the turn of the defense and yesterday both sides had the opportunity to summarize their positions by submitting their closing arguments to the jury at Teesside Crown Court.
Peter Makepeace, prosecuting, naturally painted an extremely negative picture, labeling the Pink Palace as a place designed from the ground up as a personal money-making machine for Ellis.
“21 million downloads. 600,000-plus albums. £300,000. This was a cash cow, it was perfectly designed to profit him and it was as dishonest as the day is long,” said Makepeace.
It is common sense to come to the conclusion that Oink was dishonest, claimed the prosecution lawyer, adding that Ellis knows that it’s dishonest “to promote, encourage and facilitate criminal activity,” and accusing him of telling the jury “persistent, cunning, calculated lies.”
It would, of course, be dishonest to promote “criminal activity”, but Mr Makepeace should be very well aware that the activity engaged in by OiNK’s users is covered under civil law.
Switching momentarily from criticism to praise and then back again, Makepeace said that the OiNK website was a “wonderful machine” for sharing music but noted that while the site had a really good brand name, it was a brand synonymous with “ripping off music.”
University of London professor Birgitte Andersenok gave evidence earlier in the trial, stating that file-sharing didn’t hurt the music industry and led to more sales. Mr Makepeace trashed her evidence.
“It’s nonsense, it’s flannel, it’s verbiage, it’s garbage,” he told the Court.
For the defense, Alex Stein said that Ellis had never knowingly acted dishonestly and that in 2004 when OiNK was launched, it was a “brave new world” on the Internet.
“In many societies he’d be an innovator, a creator, a Richard Branson. His talent would be moulded, not crushed by some sort of media organization,” he said.
The media organization being referred to by Stein was the IFPI, who he said had never requested that OiNK be shut down, and had instead “sat and watched.”
Gazette Live reports that Stein went on to launch a scathing attack on the IFPI.
“They used this site. Their own members used this site to promote their own music and now they’re crushing him. Maybe he grew too big for them, maybe they’ve taken a different marketing approach. I don’t know. But it was decided that this site should be taken down.
“All of us here are being manipulated to some sort of marketing strategy by the IFPI. If anybody’s acting dishonestly it’s them,” he said.
At the end of the two week trial the jury returned a unanimous verdict (12 to 0). Alan Ellis is not guilty of Conspiracy to Defraud the music industry. He walked out of Teesside Crown Court a free man today, his name cleared.
The verdict cannot be appealed and Ellis can finally put the past behind him and move on.
p2pnet news » Blog Archive » RIAA v Tenenbaum: what might have been
Quoted in the Harvard Law Review, he was referring to the Joel Tenenbaum vs the RIAA farce, going on the final judgment was “both disappointing and absurdly excessive”.
thestar.com
Chet Baker was a leading jazz musician in the 1950s, playing trumpet and providing vocals. Baker died in 1988, yet he is about to add a new claim to fame as the lead plaintiff in possibly the largest copyright infringement case in Canadian history. His estate, which still owns the copyright in more than 50 of his works, is part of a massive class-action lawsuit that has been underway for the past year.
The infringer has effectively already admitted owing at least $50 million and the full claim could exceed $60 billion. If the dollars don’t shock, the target of the lawsuit undoubtedly will: The defendants in the case are Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association.
The CRIA members were hit with the lawsuit in October 2008 after artists decided to turn to the courts following decades of frustration with the rampant infringement (I am adviser to the Canadian Internet Policy and Public Interest Clinic, which is co-counsel, but have had no involvement in the case).
The claims arise from a longstanding practice of the recording industry in Canada, described in the lawsuit as “exploit now, pay later if at all.” It involves the use of works that are often included in compilation CDs (ie. the top dance tracks of 2009) or live recordings. The record labels create, press, distribute and sell the CDs, but do not obtain the necessary copyright licences.
Instead, the names of the songs on the CDs are placed on a “pending list,” which signifies that approval and payment is pending. The pending list dates back to the late 1980s, when Canada changed its copyright law by replacing a compulsory licence with the need for specific authorization for each use. It is perhaps better characterized as a copyright infringement admission list, however, since for each use of the work, the record label openly admits that it has not obtained copyright permission and not paid any royalty or fee.
Over the years, the size of the pending list has grown dramatically, now containing more than 300,000 songs.
From Beyonce to Bruce Springsteen, the artists waiting for payment are far from obscure, as thousands of Canadian and foreign artists have seen their copyrights used without permission and payment.
It is difficult to understand why the industry has been so reluctant to pay its bills. Some works may be in the public domain or belong to a copyright owner difficult to ascertain or locate, yet the likes of Sarah McLachlan, Bruce Cockburn, Sloan, or the Watchmen are not hidden from view.
The more likely reason is that the record labels have had little motivation to pay up. As the balance has grown, David Basskin, the president and CEO of the Canadian Musical Reproduction Rights Agency Ltd., notes in his affidavit that “the record labels have devoted insufficient resources for identifying and paying the owners of musical works on the pending lists.” The CRIA members now face the prospect of far greater liability.
The class action seeks the option of statutory damages for each infringement. At $20,000 per infringement, potential liability exceeds $60 billion.
These numbers may sound outrageous, yet they are based on the same rules that led the recording industry to claim a single file sharer is liable for millions in damages.
After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid. Indeed, they are also seeking punitive damages, arguing “the conduct of the defendant record companies is aggravated by their strict and unremitting approach to the enforcement of their copyright interests against consumers.”
TorrentFreak
Earlier this year, the IFPI gave Norwegian ISP Telenor an ultimatum – block access to The Pirate Bay within days or get taken to court. Telenor refused, IFPI followed through with its threat and the case was heard earlier this month. The decision was announced today. IFPI lost the case and Telenor will not have to block The Pirate Bay.
tpbThis March, IFPI – backed by several Hollywood movie companies – gave Telenor, Norway’s largest ISP, a warning: block your users from accessing The Pirate Bay within 14 days or we will take legal action.
Without any legal basis, Telenor refused to comply.
“This would be the same as demanding that the postal service should open all letters, and decide which ones should be delivered,” said Telenor boss Ragnar Kårhus.
The verdict in the case was due to be delivered October 30th, but was delayed until today.
IFPI has lost the case and Telenor will not have to block The Pirate Bay.
The court ruled that Telenor is not contributing to any infringements of copyright law when its subscribers use The Pirate Bay, and therefore there is no legal basis for forcing the ISP to block access to the site.
“Obviously we are pleased that the District Court has arrived at this conclusion,” said Telenor’s Ragnar Kårhus in a statement.
“At the same time it is important for us to emphasize that this case is not about being in favor of or opposed to copyright, but about whether or not it is reasonable to saddle Internet service providers with a censorship role in respect of content on the Internet,” he added.
Kårhus went on to say that the most important way for IFPI and other rights holders to maintain healthy revenue streams, is to develop business models and services that render the use of sites like The Pirate Bay less attractive to Internet users.
In making its decision, the court also had to examine the repercussions if it ruled that Telenor and other ISPs had to block access to certain websites. This, it said, is usually the responsibility of the authorities and handing this task to private companies would be “unnatural”.
NYTimes.com
A Boston University student has been ordered to pay $675,000 to four record labels for illegally downloading and sharing music.
Joel Tenenbaum, of Providence, R.I., admitted he downloaded and distributed 30 songs. The only issue for the jury to decide was how much in damages to award the record labels.
Under federal law, the recording companies were entitled to $750 to $30,000 per infringement. But the law allows as much as $150,000 per track if the jury finds the infringements were willful. The maximum jurors could have awarded in Tenenbaum’s case was $4.5 million.
The case is only the nation’s second music downloading case against an individual to go to trial.
Last month, a federal jury in Minneapolis ruled a Minnesota woman must pay nearly $2 million for copyright infringement.
Forbes.com
A Dutch court ruled Thursday that three men connected with The Pirate Bay Web site must block traffic between it and the Netherlands within 10 days.
The written ruling by Judge Wil Tonkens concludes that the men have control over the site and ordered them “each separately and together, to stop and keep stopped the infringements on copyright and related rights of Stichting Brein in the Netherlands,” or face a charge of euro30,000 ($42,000) per day.
Stichting Brein is a Dutch-based organization funded by various copyright holder groups that brought the civil suit against The Pirate Bay.
It was not clear how the court expected the site’s operators to block traffic to the site, or whether it can enforce its order if they decline or are unable to comply.
“The Pirate Bay is not a legal person who can be summoned, but a cooperative,” the ruling noted.
The Pirate Bay provides an index to BitTorrent files, which can be used for trading media such as movies, music and computer games. The site has more than 20 million users globally.
CNET News
The suit appears to have been initiated by Music Copyright Solutions (MCS), which claims to administer copyrights for more than 45,000 compositions. MCS is named as the lead plaintiff, along with a number of songwriters including Mark Farner of Grand Funk Railroad fame. These folks allege that Microsoft, Yahoo, and RealNetworks improperly licensed the rights to more than 200 compositions that they offered as on-demand streams or limited downloads via the Zune Marketplace, Yahoo Music, and Rhapsody.
Surely these companies paid somebody for the rights to offer these songs. But there’s a catch, which TechDirt pointed out earlier Tuesday: these companies may have licensed the rights to the recordings, but that doesn’t mean they licensed the rights to the compositions (also known as publishing rights). As section 23 of the legal filing puts it:
In order to transmit, perform, reproduce and deliver any sound recording of any musical work via ‘On-Demand Streams’ or ‘Limited Downloads,’ Defendants must first obtain not only the rights for the sound recording itself, but also the rights for the underlying musical composition that is embodied on said musical recording.
Maybe, maybe not–that’s up to the court to decide. But that’s not the insane part. The insane part is that the plaintiffs are alleging that each time one of the defendants made any recording of a covered song available, that’s a copyright violation, and they’re seeking damages of $150,000 per violation (or the amount the defendants earned from streaming those songs, whichever is more). So, for example, the lawsuit claims that Yahoo Music offered Conway Twitty’s recording of “Fifteen Years Ago” on six different greatest hits albums. The plaintiffs allege that constitutes six copyright violations, which would mean damages of $900,000. Overall, the lawsuit names more than 200 songs, and a far greater number of recordings, meaning that the potential liability for each defendant would be tens of billions of dollars–that’s far greater than the total amount of revenues these companies ever earned from any of these services.
The Becker-Posner Blog
Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
I wonder if Judge Posner will stop writing his blog because I linked to his post.
Free Software Foundation
We don’t make (much) music here at the Free Software Foundation, so it’s natural for people to wonder why the FSF has been standing up for individuals targeted by lawsuits launched by the Recording Industry Association of America (RIAA). Most recently, we filed an amicus curiae brief in the case of Sony BMG Music Entertainment, et al. v. Joel Tenenbaum showing the RIAA’s theory of statutory damage awards to be unconstitutional.
ISPreview UK
TThe European Parliament has, in its FINAL vote (there have been five so far) on the matter, chosen to retain amendment 46 (138) of the new Telecoms Package
by a majority of 407 to 57. Amendment 46 states that restrictions to
the fundamental rights and freedoms of Internet users can only be put
in place after a decision by judicial authorities, which protects ISPs
from having to disconnect customers suspected of involvement with
illegal broadband file-sharing (P2P) downloads.
La Quadrature du Net
confirms that the European Parliament has nevertheless adopted a soft
compromise on issues of network equity: no strong protection against “net discrimination” was adopted.
“A
formidable campaign from the citizens put the issues of freedoms on the
Internet at the center of the debates of the Telecoms Package. This is
a victory by itself. It started with the declaration of commissioner
Viviane Reding considering access to Internet as a fundamental right.
The massive re-adoption of amendment 138/46 rather than the softer
compromise negotiated by rapporteur Trautmann with the Council is an
even stronger statement. These two elements alone confirm that the
French ‘three strikes‘ scheme, HADOPI, is dead already.” explains Jérémie Zimmermann, co-founder of La Quadrature du Net.
However
it’s not all good news as the changes do not prevent similar schemes
from being introduced by individual member states. Likewise nothing
will forbid ISPs from turning the Internet away from a neutral zone where people have equal access to all content applications and services. [geek]We doubt the Romulans would approve.[/geek]
“The
strong statement for the access to the Internet as a fundamental right
demonstrates that the Parliament can be courageous and reject the
pressure to compromise when essential values are at stake.
Unfortunately, on issues that appear more technical such as the absence
of discrimination of services and contents on the Internet, the
Parliament did not take the full measure of what it is at stake yet.
Citizens must remain mobilized on these crucial questions,” concludes Gérald Sédrati-Dinet, analyst for La Quadrature.
Mercifully
we’re unlikely to see Three-Strikes style legislation in the UK,
although some rights holders are still privately pushing for it. To
date the industry as a whole has failed to agree a concrete way forward
on the matter, although it’s expected that Lord Carter’s final Digital
Britain report (due in another month or so) may present one. See our ‘To Ban or Not to Ban (Illegal File Sharers)‘ – article for more background to all this.he European Parliament has, in its FINAL vote (there have been five so far) on the matter, chosen to retain amendment 46 (138) of the new Telecoms Package by a majority of 407 to 57. Amendment 46 states that restrictions to the fundamental rights and freedoms of Internet users can only be put in place after a decision by judicial authorities, which protects ISPs from having to disconnect customers suspected of involvement with illegal broadband file-sharing (P2P) downloads.
La Quadrature du Net confirms that the European Parliament has nevertheless adopted a soft compromise on issues of network equity: no strong protection against “net discrimination” was adopted.
“A formidable campaign from the citizens put the issues of freedoms on the Internet at the center of the debates of the Telecoms Package. This is a victory by itself. It started with the declaration of commissioner Viviane Reding considering access to Internet as a fundamental right. The massive re-adoption of amendment 138/46 rather than the softer compromise negotiated by rapporteur Trautmann with the Council is an even stronger statement. These two elements alone confirm that the French ‘three strikes’ scheme, HADOPI, is dead already.” explains Jérémie Zimmermann, co-founder of La Quadrature du Net.
However it’s not all good news as the changes do not prevent similar schemes from being introduced by individual member states. Likewise nothing will forbid ISPs from turning the Internet away from a neutral zone where people have equal access to all content applications and services. [geek]We doubt the Romulans would approve.[/geek]
“The strong statement for the access to the Internet as a fundamental right demonstrates that the Parliament can be courageous and reject the pressure to compromise when essential values are at stake. Unfortunately, on issues that appear more technical such as the absence of discrimination of services and contents on the Internet, the Parliament did not take the full measure of what it is at stake yet. Citizens must remain mobilized on these crucial questions,” concludes Gérald Sédrati-Dinet, analyst for La Quadrature.
Mercifully we’re unlikely to see Three-Strikes style legislation in the UK, although some rights holders are still privately pushing for it. To date the industry as a whole has failed to agree a concrete way forward on the matter, although it’s expected that Lord Carter’s final Digital Britain report (due in another month or so) may present one. See our ‘To Ban or Not to Ban (Illegal File Sharers)’ – article for more background to all this.
Slashdot
“For years, the content industries having been trying to get laws passed that would stop people sharing files. For years they failed. Then they came up with the ‘three strikes and you’re out’ idea — and it is starting to be put into law around the world. First we had France, followed by countries like Italy, Ireland — and now South Korea: ‘On March 3, 2009, the National Assembly’s Committee on Culture, Sports, Tourism, Broadcasting & Communications (CCSTB&C) passed a bill to revise the Copyright Law. The bill includes the so called, “three strikes out” or “graduated response” provision.’ Why has the ‘three strikes’ idea caught on where others have failed? And what is the best way to stop it spreading further?”
Technology | guardian.co.uk
Today was the last scheduled in the Pirate Bay trial, and the four defence lawyers made their closing statements. They all presented much the same points, the main ones being that the Pirate Bay site didn’t hold any copyright films or music — it merely acted as a search engine — and that no copyrighted content passed through it anyway. The prosecution had failed to produce any uploaders or downloaders, and had not shown their actions were illegal where they happened to live.
Fredrik Neij’s lawyer, Jonas Nilsson, said that the prosecution had not established that most of the links on the Pirate Bay were to copyright material, but linking to copyright material wasn’t specific to Pirate Bay, it was an internet-wide problem.
Then there were the financial issues. The prosecution appears to have an exaggerated view of how much money the site made (millions!), and an even more generous view of how much had been lost in the cases presented in evidence (more millions).
Gottfrid Svartholm’s lawyer, Ola Salomonsson, said there were only four adverts on Pirate Bay, not the 64 the prosecution claimed, so the revenue was closer to 725,000 kronor (£55,846, €62,510, $78,655). That was less than the site’s running costs of 800,000 kronor.
As for damages of 117 million kronor (£9m, €10.1m, $12.7m), witness Roger Wallis had testified that the content industries benefited from file-sharing. Peter Sunde’s lawyer, Peter Althin, said he personal attacks on Wallis were “pathetic”. As or Sunde, he was just a spokesman for the site and hadn’t done anything illegal.
Carl Lundström’s lawyer, Per E Samuelson, said (to quote TorrentFreak’s summary) that
when new technology appears it can be difficult to “see the wood for the trees”. He said that just because something may have been used by people for illicit purposes, should that mean that there should be an attack on the infrastructure as a result? It’s like taking legal action against car manufacturers for the problems experienced on the roads, he said.
As for Lundström, he “didn’t own the site, nor was he involved in maintaining or coding it.” He was just a “businessman who is only vaguely connected to TPB [via] one of his customers (PRQ),” TorrentFreak reported.
The prosecution didn’t enhance its reputation during the case, but as Wired pointed out in an editorial, perhaps the defendants didn’t, either. Their previous “swagger evaporated like salt water on a beached schooner once The Pirate Bay landed on the witness stand.” Wired said:
In the courtroom, the defendants quickly abandoned their revolutionary, free-culture ideals in favor of the simpler philosophy embraced by criminal defendants since time immemorial: I’m Not Responsible.
Outside the courtroom, “Peter Sunde expressed confidence that The Pirate Bay would win the case,” reports Ars Technica. “A guilty verdict would ‘be a huge mistake for the future of the Internet,’ he said. ‘It’s quite obvious which side is the good side’.”
It’s equally obvious to the record industry, of course, which sees sites like Pirate Bay destroying the commercial music business. In its report, Billboard quotes Kjell-Åke Hamrén, chairman of SMFF, the Swedish Music Publishers Association:
“Without compensation the creators’ livelihood is unsustainable. It is therefore of utmost importance that licensing schemes and new legal services can emerge in the digital environment, while at the same time legislation says firmly no to grand scale businesses that are built on copyright infringement.”
The verdict is due on April 17
Moscow Times
The wisdom of our State Duma deputies is a well-known attribute — second only to their selfish patriotism. Apparently, it was their sense of national pride that moved them to pass in two readings amendments to the Civil Code regarding copyright violations. International trade organizations and a host of Western companies concerned about Russians’ widespread abuse of copyrights laws had been pushing the Kremlin and the Duma for years to strengthen its legislation.
According to the legislative bill, any unlawful or unsanctioned copying of text, music or pictures from the Internet is subject to criminal prosecution of up to six years in prison.
In reality, though, it is almost impossible for the average computer user to not violate some copyright law every time he is on the Internet. For example, if you accidentally right click your mouse on some useless picture while browsing the web, you are a criminal. And this is the weakness of the new legislative bill — virtually every Internet surfer is guilty a priori. If the proposed amendments become law, the state will have the luxury of jailing any citizen it wants at any moment, and they would have every legal justification for doing so.
In addition to surfers, Internet providers would also be liable. Since they are obligated to spy on the Internet activities of their customers day and night, if even a single user posts pirated material on the network the provider could have problems with the law. The only safe path for the provider to take is to be as vigilant as possible, informing the authorities on even the slightest possible copyright violation. This could mean that thousands of web sites and blogs would be wiped out.
But please don’t think that Duma deputies are inhumane. They have included two mitigating circumstances in the bill that could help Internet users evade a prison sentence. First, you can claim that the alleged copyright violation was caused by “necessary” circumstances. The only problem is that “necessary” is not clearly defined. Imagine court proceedings in which the accused testifies, “My grandmother was suffering from depression and wanted to take her own life. After I downloaded and played her favorite music for her, she decided to live a little longer.” The jury members break into tears and find the defendant innocent.
Second, a person can evade prosecution if he can prove that he is a comedian. The bill allows for free use of other people’s intellectual property if it is being used as a parody. Now that’s funny, isn’t it?
And for all of the people who rely on the Internet for automatic translations from English to Russian, the legislation has tried to create a loophole for your free use of these programs in accordance with World Trade Organization rules.
It appears that WTO membership is a key motivation behind this legislations. For the sake of this prize, lawmakers are willing to sacrifice anything, from citizens’ rights to common sense.
At the same time, there could be an added bonus for our security siloviki. They also see plenty of opportunities to increase their surveillance of Russians’ Internet activities under the pretext of complying with this new copyright law, of course. As everyone knows, Russia is a free, democratic country, and therefore nobody is thrown in prison because of his political views. But I have a sneaking suspicion that only the Kremlin’s political foes will be the ones who are caught violating this law.
The only hurdle left for this bill to become law is for it to pass the third reading in the Duma. Usually, the third reading is only for eliminating typos. In this case, you could say the entire legislation is one enormous typographical error.
Boris Kagarlitsky is the director of the Institute of Globalization Studies.
irishtimes.com
A British publisher has come up with the idea of selling reprints of Nazi newspapers to German customers.
You can imagine the sales pitch: “Week by week, your collection will grow into a fascinating overview of the virulent propaganda that polluted a nation’s psyche and started a war that brought Europe to its knees.”
The Zeitungszeugen(Newspaper Witnesses) series, juxtaposing reprints with modern analysis and comment, has been a huge hit and the first issue, including pages from Der Angriff– editor Joseph Goebbels – has all but sold out in the German capital.
And so, as the rest of the world reads about the inauguration of US President-elect Barack Obama this week, tens of thousands of Zeitungszeugenreaders will be catching up with Der Angriff’saccount of Adolf Hitler’s rise to power in January 1933.
“We want to give people the opportunity to form their own picture not only of the political events,” says series editor, historian Sandra Paweronschitz, “but also of the era in which these events took place and the attitudes to life at that time, for example by reading the classifieds or the film guide.”
Historian Wolfgang Benz, who worked on the project, described the reprints of original material as less harmful than the endless series of slick documentaries that run on German television every night.
But involving several leading German historians in the project hasn’t placated Germany’s Jewish community. Ralph Giordano, one of Germany’s most prominent Holocaust survivors, suggested that the series was an indication that “Hitler was defeated militarily, but not intellectually”.
On Friday evening, the Bavarian state government slapped a ban on the project just as publishers readied issue two – a reprint of the vitriolic Völkischer Beobachter, the Nazi party paper.
Officials in Munich announced that the publication was a breach of copyright it has held since absorbing the assets of the main Nazi publishing house, Eher, in 1945.
The publishers of Zeitungszeugenhave admitted they were aware of the copyright, but declined to apply for permission for fear of being refused.
Now the company has vowed to fight a ban they call “an attack on press freedom”.
That could lead to an interesting legal battle, as some legal observers in Germany have claimed the copyright on the Nazi newspapers has long since expired.
It is the latest round in a long-running battle in Germany about whether to keep Nazi documents locked up or to distribute them for educational purposes.
Last year, leading historians called on the Munich government to permit a new German-language publication of Hitler’s Mein Kampf, to which it also holds the rights.
They want to see an annotated version on sale before the work enters the public domain in 2015. Then, 70 years after the dictator’s death, far-right fringe parties in Germany plan to flood the country with their own cheap copies of the work.
Recording Industry vs. The People
In SONY BMG Music Entertainment v. Tenenbaum, the defendant has moved for all court proceedings to be televised over the internet through Courtroom View Network. The motion argues:
Information
is the currency of democracy, sunshine laws open government. The
federal court is open not only as a court of justice but a forum of
civic education. WE the PEOPLE are the ultimate check in our
constitutional system of checks and balances, we the people of the
integrated media space opened and connected by the net in a public
domain. Net access will allow an intelligent public domain to shape
itself by attending and engaging in a public trial of issues
conflicting our society.
Net access to this litigation will
allow an interested and growingly sophisticated public to understand
the RIAA’s education campaign. Surely education is the purpose of the
Digital Deterrence Act of 1999, the constitutionality of which we are
challenging. How can RIAA object? Yet they do, fear of sunlight shone
upon them.
Net access will allow demonstration by the parties to
the jury of the nature and context of the copyright infringement with
which Joel Tenenbaum is charged.
Net access will allow an
intelligent public domain to shape itself by attending and engaging a
public trial prosecuted by a dying CD industry against a defendant who
did what comes naturally to digital kids.
Net access will allow
educational and public media institutions to build a digital archive
and resource for understanding law akin to Jonathan Harr’s A Civil
Action reconceived in execution for legal pedagogy in a digital age,
Another Civil Action. The immediacy of net-based access to court
opinions already allows lawyers, professors, students, and reporters to
better keep abreast of the most recent legal developments, but none
with the immediacy the Net allows.
If the motion is granted, it will be the first RIAA case of which we are aware to be televised.
Motion and memorandum of law in support of internet audio-visual coverage
Declaration of John Shin
Declaration of Charles Nesson
Recording Industry vs. The People
According to a report on Wired.com, the RIAA spokesman claims that the RIAA has not filed any new lawsuits “for months”; according to the Wall Street Journal report
the RIAA stopped filing mass lawsuits “early this fall”; and the
Associated Press was apparently told that the RIAA had stopped bringing
new lawsuits in August.
Being very familiar with the RIAA’s penchant for “misspeaking”,
even when under oath, I investigated the matter a bit, and learned that
a large number of suits have been brought by the RIAA quite recently,
one as recently as this Monday. Here are just a few. Those marked green were contributed by some of our great readers:
Intellectual Property Watch
By David Cronin for Intellectual Property Watch
BRUSSELS – Europe’s copyright rules are ill-suited to an age when millions of music files can be accessed at the click of a mouse, a Brussels conference has been told.
About eight million tracks by musicians from a wide variety of genres can now be listened to via the internet, a figure that is projected to rise to 12 million by 2012. With the entertainment industry estimating that 90 percent of music downloads are illegal and sales of CDs having declined sharply over the past few years, some technology firms are urging that the whole basis of copyright law needs to be rethought.
Kurt Einzinger, president of the Internet Service Providers Association (EuroISPA), believes that attitudes to music have changed so fundamentally that the “established copyright regime is not fit for the internet.”
“I personally have LPs [records] of The Rolling Stones and Cream at home,” he said. “But my kids get a piece of music and they listen to [it] and that’s it. They don’t keep it. They wouldn’t pay one euro or one dollar for listening one time to a piece of music.”
While acknowledging that there is a “culture of disrespect for copyright rules,” he added that “when downloading, people don’t feel they are illegal, they don’t feel they are doing something wrong.”
Einzinger was speaking at a conference organised by the World Intellectual Property Organization (WIPO) that took place in Brussels on November 24 and 25.
A markedly different view was offered by Feargal Sharkey, former singer with Irish punk-rock band The Undertones.
Now chief executive of UK Music, which represents artists, record companies, managers and royalty collecting societies, Sharkey contended that the “voice of the creator is frequently overlooked” in the debate about the internet.
The proliferation of free downloading, he said, is a contributory factor to the often meagre income of artists, citing estimates that more than 80 percent of musicians in Britain earn less than €15,000 euros per year.
“The copyright system was introduced to protect true originality,” he added, stating that freedom of expression does not confer “a freedom to steal and plagiarise.”
A ‘memorandum of understanding’ between the British government, the recording industry and technology firms signed during July aims to set up new business models, which allow listeners access to music using whichever means they prefer but in a way that “the creator gets paid,” according to Sharkey.
Jean Bergevin, a European Commission official handling single market issues, suggested there is considerable confusion about how copyright legislation applies.
Many internet service providers have claimed that they merely host data and should not be held responsible for whether its content violates copyright law. But Bergevin stressed that the European Union’s directive on electronic commerce, which dates from 2000, does not make such firms “fully exempt from liability.” Once they receive knowledge that copyright is not being respected, they are supposed to take action. Yet he said that the issue of how courts should interpret what constitutes knowledge in such cases is “an issue that might require some clarification.”
His colleague Jean-Eric de Cockborne, an official dealing with audiovisual policy, described internet piracy as “a massive problem.” While he insisted that “doing nothing is not an option,” he argued that it would be premature to introduce fresh laws.
“It is unlikely that new punitive legislation will be adopted,” he added. “There is a very strong political view on the need to balance the protection of intellectual property rights with other fundamental rights, in particular data protection and the right to information.”
Jürgen Becker, vice-president of GEMA (the society for musical performing and mechanical reproduction rights in Germany), complained that “copyright is not being adequately protected online” and that a “crisis of copyright” has been taking place for the past two decades. His organisation, he noted, has initiated legal action in Germany in a bid to pressurise internet firms into blocking access to websites which breach copyright rules.
“All rights-owners agree that they do not wish to put up with this any longer,” he said. “But the options open to them in this respect are limited. Only lawmakers – both national and European – are in a position to remedy the situation.”
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