Control Freaks

Lucy Neville-Rolfe, the British minister for intellectual property, made an official visit and to sign a memorandum of understanding between Britain's Intellectual Property Office and the Intellectual Property Office of Singapore. The document outlined joint efforts between the two offices to protect IP in each other's countries.

Neville-Rolfe told The Straits Times that it would be unwise to ban technology like VPNS, even if they are used to access geo-blocked content, a practice opposed by rights holders. You can't outlaw a key technology, she said.

Recently the Singaporean ISP ViewQwest released a new set top box with a built in VPN-like function so customers could use foreign streaming services. Netflix will, however, launch officially in Singapore next year but concerns remain over the quality of the catalog compared to the US version, particularly citing widespread local censorship. One Singapore user explained:

I'm paying about US$50 (S$71) a year for my VPN service, which is a small price to pay for full, uncensored content. I wouldn't want to miss out on any parts of the TV show, so I wouldn't switch to Netflix's Singapore service if it is going to censor that.

A US appeal court has stepped in to prevent a bully shopping mall magnate from censoring a critical blogger via copyright claims.

The court issued an opinion blocking the  use of copyright to censor unwanted online criticism. The decision, Katz v. Chevaldina , is important because although copyright law is frequently misused as a tool to censor speech, it rarely makes it into court to be challenged. And here, the court stopped the plaintiff in his tracks.

As we explained in an earlier blog post , the plaintiff, Raanan Katz --the owner of a number of shopping centers throughout Florida and a minority owner of the Miami Heat --didn't like how an online blogger was using an unflattering photograph of him in blog posts criticizing his business practices. So he acquired the copyright for the photograph and went after the blogger for copyright infringement. At the district court, the blogger, Irina Chevaldina, moved for summary judgment on the ground that her use of the photograph for the purpose of criticizing Katz was fair use and protected under federal copyright law. The district court agreed , ruling in favor of the blogger. But Katz appealed.

We filed an amicus brief with the Eleventh Circuit back in May, urging the court to see this behavior for what is was-- i.e ., a blatant attempt to abuse copyright law. The Eleventh Circuit agreed with us, seeing straight through Katz' behavior and characterizing the case as Katz's attempt to utilize copyright as an instrument of censorship against unwanted criticism. The court ultimately upheld the district court's holding that Chevaldina's use of the unflattering photograph was protected fair use.

In upholding the district court's fair use holding, the Eleventh Circuit rejected Katz attempts to argue that Chevaldina was using the photograph for commercial use--an argument that we had pointed out to be ridiculous. As the court recognized:

Chevaldina unabashedly criticized and commented on the dealings of Katz, his businesses, and his lawyers. Chevaldina's blog posts sought to warn and educate others about the alleged nefariousness of Katz, and she made no money from her use of the photo.

The court also found that Chevaldina's use of the photograph was transformative, because, in the context of the blog post's surrounding commentary, she used Katz's purportedly 'ugly' and 'compromising' appearance to ridicule and satirize his character.

The court further rejected the Katz's disingenuous argument that Chevaldina's use of the photograph would have a detrimental effect on the potential value of the photograph. As the court stated:

Katz took the highly unusual step of obtaining the copyright to the Photo and initiating this lawsuit specifically to prevent its publication. . . . Due to Katz's attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work.

In the meantime, back in May, the district court ordered Katz to pay Chevaldina $152,433.68 in attorneys' fees plus another $2,403.50 in costs. The court admonished Katz, During the more than two years that this litigation consumed, Plaintiff should have at all times known his claim would eventually fail when the truth of his motivations was eventually know. The court went on:

It is crystal clear that Plaintiff's motivations pursuing this lawsuit were improper. Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph's copyright solely for the purpose of suppressing Defendant's free speech .

A US federal appeals court sided with the Electronic Frontier Foundation (EFF) on several of the major questions at issue in the long-running Lenz v. Universal copyright case. This is sometimes referred to as the Dancing Baby case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background.

The big takeaway of decision is that copyright holders must consider fair use before sending a takedown notice. But just as important, is the basis of that conclusion that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

For example, the court states explicitly that Fair use is not just excused by the law, it is wholly authorized by the law. However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.

The court goes on to specify an important consequence of that fact: since fair use is authorized by the law, people enjoying their right to fair use are not infringing copyright. That's important because Universal had argued that fair use has to be considered an affirmative defense of otherwise unlawful conduct. The panel of judges dismantled that idea:

Universal's interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: [A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer.

One reason this affirmation of fair use is so crucial is that it comes at a time when fair users should be enjoying new opportunities from unprecedented media tools and distribution options, but instead face similarly groundbreaking challenges and pushback from copyright holders. An interview with the video remix artist Elisa Kriesinger published just yesterday brings some of those points into focus:

Every few weeks, you are constantly having to defend your work, You thought you were clear two weeks ago, and now you've got to defend it again because someone else is saying that they own a portion of your work.

For fair users, the decision has another heartening element, the court has appropriately defined the damages available to targets of takedown abuse as broader than actual monetary loss. In practical terms, many people who are using their fair use rights online can't easily demonstrate precise monetary costs of an improper takedown, but it can take a toll in terms of time and energy getting it restored and holding the senders accountable. It's good to see a court recognize that idea. Accepting that a broad range of harm can and should make it easier for service providers and the public to hold accountable those that would abuse the DMCA.

The decision is not all good news, unfortunately. Applying an older Ninth Circuit decision called Rossi v MPAA, the court suggested that, although copyright owners must consider fair use, they only need to form a subjective good faith belief that the work is not authorized by law, even if this belief is objectively unreasonable on either the law or facts at issue. Those that would use the law to silence online speech should, at the very least, be required to act reasonably. Otherwise the law perversely rewards those who fail to properly educate themselves about fair use before sending a takedown.

The EFF comments:

It took eight years of litigation to get to this point. That's right: it took eight years to establish that record labels like Universal must consider whether your speech is legal before they try to get it taken off the Internet. We are glad to finally have this result and we hope that this ruling will lead to less takedown abuse in the future.

Supported by the French Government, several key players in the online payment industry are teaming up with copyright holders to ban infringing websites. The proposed agreement is a key part of the follow the money approach through which stakeholders hope to decrease online piracy via censorship.

The entertainment industries are lobbying the public and private sector to  come to their aid. So far, this has resulted in Government supported voluntary agreements in both the United States and the United Kingdom.

It now appears that France intends to follow the same path. One of the key elements of the French approach is to strangle the revenues of pirate sites by making it harder to run ads and accept online payments.

Earlier this year Fleur Pellerin, France's Minister of Culture and Communication, presented a paper outlining the Government's plans. At the time, it was suggested that payments to and from pirate sites should be blocked where possible.

Yesterday several leading online payment processors including PayPal, Visa and MasterCard discussed a possible pirate blacklist agreement with copyright holders. Most services already prohibit copyright infringing services in their terms of use, but the new plan would go above and beyond current measures.

According to Minister Pellerin both parties are working on a voluntary agreement which would see copyright holders create and maintain a pirate site blacklist. The payment providers will then use this list to prevent sites from signing up or to terminate current accounts.

Some opponents fear that without proper oversight the blacklist may become too broad. This could potentially destroy businesses which are not deemed illegal by any court.

The European Commission is considering extending failed copyright rules covering satellite broadcasters and cable companies to services carried over the internet.

The Commission says it wants to enhance cross border access to broadcasting and related online services across the EU. It wants to assess the impact of extending the Directive to TV and radio programmes provided over the internet, notably broadcasters' online services, such as the BBC iPlayer or commercial services like Sweden's TV4 Play.

Under the 1993 directive satellite rights are acquired for the EU country where, under the control and responsibility of the broadcasting organisation. Under this country of origin principle, rights cleared in one country theoretically allow the broadcasting organisations to broadcast to the whole of the EU, but in practice, don't.

Views are being sought from consumers, public authorities, broadcasters, authors, audio-visual and record producers, performers, collective management organisations, satellite and cable operators, internet and online service providers. The consultation will run through until November 16.

A broad coalition of global tech firms including Google, Facebook, Twitter, Tumblr and Yahoo are protesting a broad injunction that would require search engines, ISPs and hosting companies to stop linking to or offering services to MovieTube. The preliminary injunction requested by the MPAA resurrects parts of the controversial SOPA bill, the tech giants warn.

In recent months there have been several lawsuits in the U.S. in which copyright holders were granted broad injunctions, allowing them to seize domain names of alleged pirate sites.

In addition, these injunctions were sometimes directed at hosting providers, search engines and social networks, preventing these companies from doing business with these sites.

Most recently, such a request came from Hollywood's major movie studios, who previously sued several MovieTube websites. The companies asked for a preliminary injunction ordering several third-party companies to stop linking or providing services to the pirate sites.

This proposal reminded some opponents of the blocking provisions that were listed in the controversial SOPA bill. Among the opposition are some of the largest tech firms in the world.

A few hours ago Google, Facebook, Twitter, Tumblr and Yahoo submitted an amicus brief asking the New York federal court not to include neutral service providers in the injunction.

According to the tech giants the proposed language goes too far. An injunction should not target companies that are not in active participation with MovieTube, nor should it circumvent the rules that are outlined in the DMCA, they argue.

The tech companies suggest that the MPAA is trying to resurrect SOPA-powers through this lawsuit and ask the court to halt their efforts. The companies argue:

Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted.

The Court should not allow intellectual property rightsholders to obtain through the existing statutes the very sort of third-party blocking orders that failed to gain legislative approval.

Twitter has launched a crackdown on people who copy and paste jokes from others. The company has started to remove tweets by people who copy witty one-liners replacing the offending message with a note saying it has been withheld over copyright issues.

It will come as a relief to comedians and writers who have long been frustrated over seeing their jokes shared without attribution on Twitter.

The issue emerged after a joke was posted on Twitter by writer Olga Lexell which said: Saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side.   The post was a dig at the life-style of health-conscious hipsters willing to pay large amounts for detox drinks. It was soon seized upon and used by others.

In the days that followed, some of the copycat gags were later removed by Twitter and replaced with the message: This tweet has been withheld in response to a report from the copyright holder.

People who believe their jokes have been passed on are able to submit a claim through an online form .

New proposals to make online copyright infringement punishable by ten years in jail risks punishing users who share links and files online more harshly than ordinary, physical theft. Prison for filesharers

In the past file sharers have been threatened with criminal charges, despite not seeking any financial gain or running a business. They may be misguided, but we have to ask whether they are really posing a risk to the public and therefore deserving a criminal conviction. Now in 2015 the Intellectual Property Office are suggesting people like them should face the possibility of a 10-year jail sentence.

The IPO has a consultation on proposals to increase the maximum prison sentence for criminal online copyright infringement to 10 years, aiming to match sanctions for online copyright infringement with physical copyright infringement. The logic being that similar offences should attract similar penalties, regardless of the platform used.

Whilst we agree with the IPO's logic, their proposals are problematic. The existing offence they are referring to, as outlined in section 107 of the Copyright Designs and Patents Act, can be brought against both:

• Criminals who deliberately infringe copyright by operating filesharing services; and

• People who share links and files so that they affect prejudicially the copyright owner.

This second offence is not only vague and broad in definition, but also requires no consideration of the intent of the offender.

It would be easy for a few misguided people to be caught up in this law. For those who share their karaoke songs with no criminal intent, to be threatened with the kind of lengthy sentence that hardened thieves and violent offenders often escape is just inappropriate. It also places excessive power in the hands of copyright enforcement organisations, who can claim to such individuals that their estimations of financial damage could result in a possible jail sentence.

Similarly, businesses who operate legitimately may be worried or threatened because of this strict liability offence. They cannot argue that they have no intention to harm. The stakes are very high.

ORG believes that if the IPO want to change the sentencing, they have to reform the underlying offence.

The question we have to ask is, are these people a risk to the public?

See call to respond to government consultation from openrightsgroup.org

The High Court recently overturned private copying exceptions introduced last year by the UK Government, once again outlawing the habits of millions of citizens. The Intellectual Property Office now explains that ripping a CD in iTunes is no longer permitted, and neither is backing up your computer if it contains copyrighted content.

Late last year the UK Government legalized copying for private use, a practice which many citizens already believed to be legal. The UK Intellectual Property Office noted that the changes were in the best interest of consumers and that they would bring copyright law into the 21st century.

However, the new regulation was short-lived. Fearing a loss of income several music groups objected at the High Court, which subsequently agreed that the new legislation is unlawful .

As a result the changes were overturned last month and the previous limitations were reinstated. To find out what the public can and can't do under the law, TorrentFreak reached out to the UK Intellectual Property Office, which provided some very clear answers. A spokesperson explained:

It is now unlawful to make private copies of copyright works you own, without permission from the copyright holder -- this includes format shifting from one medium to another

The IPO specifically notes that copying a CD to an MP3 player is not permitted. This means that iTunes' popular ripping feature, which Apple actively promotes during the software's installation, is illegal. Also, under the current law iTunes is actively facilitating copyright infringement by promoting their CD-ripping functionality. This means that the company could face significant claims for damages.

There is more though, as the law affects much more than just ripping CDs. Simply copying a song in an automated computer backup or storing a copy on a private cloud hosting service is also against the law.  The Government spokesperson said:

...it includes creating back-ups without permission from the copyright holder as this necessarily involves an act of copying,

Strictly speaking this means that UK citizens are not allowed to make a backup of their computer. After all, pretty much every computer contains copyrighted media. Needless to say, this turns almost the entire country into outlaws .

The Government is not happy with the High Court decision but it hasn't decided whether it will propose revised private copying exceptions in the future. Copyright holders previously suggested allowing private copying in exchange for a tax on blank CDs and hard drives. The spokesperson said:

As this is a complex area of law, the Government is carefully considering the implications of the ruling and the available options, before deciding any future course of action.

Adult movie studio Malibu Media has asked the Indiana federal court to ban negative terms during an upcoming trial against an alleged BitTorrent pirate. According to the copyright troll, descriptions such as copyright troll, pornographer and porn purveyor could influence the jury.

Malibu Media, the Los Angeles based company behind the X-Art adult movies, is one of the most active copyright trolls in the United States. This year alone they have filed a 1,104 individual cases against alleged downloaders.

The main goal of the company is to demand settlements of a few thousand dollars, without going to trial. However, defendant Micheal Harrison decided to fight back and wants to have his case heard before a jury.

The lawsuit in question dates back to 2012 and both sites are now gearing up to present their arguments in court. This is new territory for the porn company, and recent motions reveal that the copyright troll is worried about its image.

Recently, a company called Tzu Technologies, LLC began suing makers of sex toys for infringement of U.S. Patent No. 6,368,268 . This resulted in more than a few news stories (and probably a few snickers as well). But the case also shows how our broken patent system is preventing innovation in many spaces, including those we don't traditionally think about. Looking closely at the patent, and specifically at what Tzu Technologies actually claims to own, it is clear that this patent, regardless of its exciting subject matter, deserves to be called stupid.

Tzu Technologies' patent, titled Method and Device for Interactive Virtual Control of Sexual Aids Using Digital Computer Networks is a patent related to teledildonics . Essentially, computer controlled sex toys.

Tzu Technologies recently sued a bunch of small startups in the sex toy space, claiming they infringed this patent. Comingle, for example and according to their website, is a four-person team that is developing open-source sex technology. Also sued was Kickstarter, presumably for allowing another defendant, Holland Haptics, to raise money for their product the Freeble .

As this 1993 Chicago Tribune article shows, the idea of remotely stimulating a partner was nothing new in 1998 (the year the application for the patent was filed). Nor was it unknown how to do it. Howard Stern (in)famously engaged in some of his own teledildonics in the 1980s, that was later reenacted [NSFW] in his 1997 movie Private Parts .

Given this history, you might expect that, in 1998, patent applicants would need to come up with some new and non-obvious way of using a computer to control a sex toy. But like many patents that we have labeled Stupid, that's not what happened. Or at least, that's not what the inventors claimed .

Below is claim 8 of the patent, which Tzu Technologies seems to be asserting. This claim is ridiculously broad. Annotations, in bold, have been added to show just how broadly it can be read:

8. A stimulation system comprising:

[a] a hand-operable input device [a microphone] for generating a command signal [electrical signal] in response to an input [sound wave] received from a first user;

[b] a first user interface [the radio broadcast system] connected to said input device [the microphone] , said first user interface generating a control signal [radio waves] based upon the command signal [electrical signal] ;

[c] a second user interface [a radio] remotely located from said first user interface [the radio broadcast system] , said second user interface receiving the control signal [the radio waves] ; and,

[d] a stimulation device [a stereo speaker] receiving the control signal [the radio waves] from said second user interface [the radio] , said stimulation device imparting stimulation to a second user in response to the control signal [you get the idea] .

Ultimately, claim 8 of this patent is nothing more than the idea of teledildonics, dressed up in input devices signals and interfaces. That's what makes this patent, and these lawsuits, so frustrating. There was nothing novel, nonobvious, or even patentable about this claim. It never should have issued. Doing it with a computer (literally) does not make something patentable.

More and more, everyday items are incorporating software and networking technology. Unfortunately, that means more and more everyday items are at risk of being said to infringe overbroad, vague patents that never should have issued. As this patent shows, the problems with the patent system have the potential to impact many diverse fields, and until we find a way for small companies to quickly and efficiently shut down these patent trolls, we will continue to hurt innovators who are merely trying to make life more interesting.

Making copies of copyrighted music and videos for personal use is again illegal in the UK because of a ruling by the High Court.

The ruling quashes the 2014 regulation that made it legal to make personal copies of performances for private use as long as the person doing so has lawfully acquired the content and doesn't distribute it to anyone else. That regulation allowed people to make backups or play songs or movies in different formats but didn't allow selling copies or sharing them with family and friends.

But the High Court ruled last month that the regulation hadn't been enacted properly. The personal use exception wasn't immediately thrown out because other remedies could have been considered, but in a further hearing a judge ruled that the government was wrong legally when it decided not to introduce a compensation scheme for songwriters, musicians, and other rights holders who face losses as a result of their copyright being infringed.

The decision came after a legal challenge from Basca, the Musicians' Union, and industry representatives UK Music.

The decision to quash the law occurred quickly after last month's ruling because government officials decided not to object.

Update: Government confirms withdrawal of home copying copyright exemption

22nd July 2015. See  article from  theregister.co.uk

On Friday, Mr Justice Green added a supplementary opinion to his earlier judgment, in which the Secretary of State confirmed that the UK government is withdrawing the failed law, rather than racking up further expenses for the taxpayer. What will happen now remains to be seen.