Control Freaks

Copyright trolls operating in the UK will be doing so a little less confidently this morning after being slammed in the House of Lords yesterday. Lord Lucas named and shamed several companies involved in the practice, describing them as scammers and extortionists while urging the government to take action.

The Intellectual Property (Unjustified Threats) Bill was introduced in the House of Lords during May 2016.

Among other things, the draft legislation aims to protect companies and individuals from threats of expensive IP litigation where no infringement has taken place.

While aimed largely at patents, trademarks and other design rights, during a Lords Grand Committee hearing yesterday the hot topic of unfounded threats against Internet users was thrust onto the agenda. Lord Lucas , who previously tackled the infamous ACS:Law, was again at the forefront. He said:

The world is full of people who like to play a junior game of what this bill addresses. A few years ago I had a small role in the demise of ACS Solicitors which were thankfully sacked by the law society

They were shaking down Internet users for allegedly infringing copyright on pornography and other low grade media. Their evidence was extremely suspect and was never tested in court. ACS made its money from their threats and never took anyone to court, though it used the courts to target its victims via Norwich Pharmacal Orders .

Some careless person has dropped blood onto the ashes of ACS and the same scam is alive again. The same thin evidence. They have an IP address, they have not revealed how they get that IP address. But, given that IP address, they go through the same Norwich Pharmacal [ISP disclosure] procedure.

This time, to remove the vulnerability that ACS found, the solicitor involved, Wagner and Co , withdraws after obtaining the Norwich Pharmacal Order, so they're not involved in the threat processes which are undertaken by shell companies. There doesn't seem to be any redress for people threatened or for ISPs who are asked to comply with Norwich Pharmacal orders.

If anybody comes across the names of Hatton and Berkeley , RangerBay, GoldenEye International , Mircom International and TCYK...I  really urge them to put [their correspondence] in the bin. The current scammers aren't pursuing anyone [in court] they're just after threats, and extortion, and shaking people down.

I applaud our government for helping businesses avoid unjustified threats but I would really like to know what they intend to do to help the granny [ accused by TCYK recently ] who is being threatened by their smaller, nastier cousins with allegations that she has been downloading illegally.

The EFF writes:

We're pleased to report that Sony Music backtracked on its accusation of copyright infringement against the Hudson Valley Bluegrass Association, and HVBA ' s educational video remains freely available to the public. But the music label's response leads us to think that Sony ' s misuse of copyright and of YouTube's automated enforcement system will continue.

We wrote last week about how YouTube's system, Content ID, incorrectly flagged HVBA's own video as infringing. The video, an hour-long lecture on the history of bluegrass music, triggered the Content ID filters because it contained three clips of bluegrass recordings copyrighted by Sony, each around 30 seconds and surrounded by a discussion of the music and its historical relevance . That's an obvious fair use under copyright law, one that any human reviewer with minimal training would recognize.

A fair use doesn't require permission from the copyright holder, or a fee. It's the sort of use that's free to all. But when HVBA's webmaster wrote to Sony Music and asked them to withdraw the Content ID match, the company responded by asking for a $500 "administrative fee" and detailed information about HVBA's use of the song clips. Fortunately, HVBA's webmaster knew her rights, and after some prodding--and a post by EFF--Sony Music agreed to withdraw its claim.

We're glad Sony stopped trying to block or monetize HVBA's video. But the company's response is troubling all the same. A Sony executive emailed HVBA to say that the company "has decided to withdraw its objection to the use of its two sound recordings" and "will waive Sony Music's administrat[ive] fee." That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all.

As Congress and the Copyright Office review the law and examine the effectiveness of automated systems like Content ID, they should keep in mind that automated flagging or filtering combined with misleading statements about a company's legal rights can lead to abuse. That's another reason why YouTube-style automatic filtering should never be mandated by law, and why we need real penalties for false takedowns.

I remember the launch of iTunes in 2001. Hurrying home from the MacWorld conference in San Francisco, downloading the app, making a stack of CDs next to my Powerbook, ripping them as fast as my machine would go. Rip, Mix, Burn, baby!

The other thing I remember is how the media industry viewed iTunes: they hated it. They hated people using iTunes to rip CDs , they hated mixing and burning. The only reason they let the iPod/iTunes ecosystem live was because when they sued the company that made the first MP3 players, they lost .

The record companies thought that anything that let listeners do more with their music had to be illegal. After all, they had big plans for the future of music and those plans hinged on being able to control how you and I used our music. They'd made big money selling cassettes to LP owners, and CDs to cassette owners, and they viewed selling digital versions of those same songs to us as their inalienable right. If we could rip our own CDs, how would they sell us that music again?

Luckily for us and for Apple, a company's preferences don't have the force of law. The record companies could gripe, but they couldn't stop iTunes.

Not until now, anyway.

Apple is a member of the World Wide Web Consortium (W3C), a body currently working to make a standard for restricting Web users' options while they view copyrighted works. This standard, Encrypted Media Extensions (EME), allows media companies to restrict the use of copyrighted works without regard to the limits of copyright law. Copyright lets you do all kinds of things with the works you lawfully access: record them to experience later, move them to a different device, pause them so you can get a snack or change a diaper.

EME would give giant media companies a veto over your use of your media--a veto that would have killed iTunes before it ever got started.

Worse: EME could let its creators invoke section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits you from getting around EME-style restrictions on copyrighted works. According to some U.S. courts, the law applies even if you're circumventing for a purpose allowed under copyright law. Even if you're making iTunes.

DMCA 1201 is so sloppily drafted and far-reaching that it even lets companies legally threaten security researchers who discover serious, dangerous bugs in products if they come forward with embarrassing news.

(And if you're not an American: the US trade representative is working hard to make DMCA-style laws a condition of trading with the USA, spreading them to every corner of the Earth.)

The Electronic Frontier Foundation asked the W3C not to do this . When they went ahead anyway, we asked them to compromise : at least ask your members to promise not to use the DMCA to attack new companies and researchers doing lawful things. Make them promise to let the next iTunes get a chance. After all, this is what the W3C did when it came to patents: to participate in the W3C's process, you must agree that people are allowed to implement its standards without worrying about undisclosed patents you may own. This safeguard has helped enable an enormous turnover in popular browsers over the past decade.

Despite hearing from a diverse coalition of its members who approved of the EFF compromise, the W3C overruled them , and is letting EME continue without a legal safeguard for the products that don't exist yet, for the companies that haven't had their iTunes moment yet.

It's heartbreaking.

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The W3C has a long, proud history of standing up for the open Web, the Web anyone can make. It should honor its history and continue to protect the open Web and the innovators and researchers who make it great.

The French three-strikes anti-piracy law Hadopi is heralded by copyright holders as an effective way to curb piracy. However, in France the legislation has often been criticized and in a surprise move against the will of the Government, the National Assembly has now voted to dismantle it in a few years.

France is seen as the pioneer of so-called three strikes anti-piracy legislation, in which repeated file-sharing offenders face fines of up to 1,500 euros. Since 2010 the French Hadopi agency has handed out millions of warning notices . A few thousand account holders received more than three notices, of which a few hundred of the worst cases were referred for prosecution.

Copyright holders around the world have cited Hadopi as one of the success stories, hoping to establish similar legislation elsewhere. However, in France the law hasn't been without controversy and in a total surprise the lower house of the French Parliament has now voted in favor of killing it.

Interestingly, the vote late last week went down under quite unusual circumstances. In a nearly empty chamber, the French National Assembly voted to end the Hadopi institution and law in 2022, Next Inpact reports . What's noteworthy is that only 7 of the 577 Members of Parliament were present at the vote, and the amendment passed with four in favor and three against.

The decision goes against the will of the sitting Government, which failed to have enough members present at the vote. While it's being seen as quite an embarrassment, the amendment still has to pass the senate, which seems unlikely without Government support.

The coup, orchestrated by the Green party has caused quite a media stir, not least because French President Francois Hollande called for the end of Hadopi before his election, a position he later retracted.

Maybe another theory as to why the French government may be keen to accidently drop the law. With a new emphasis on terrorism prevention and snooping, it can't really be helpful that large numbers of people adopt encrypted proxies and VPNs primarily to evade Hadopi   copyright enforcement.

Sweden's supreme court has sided with commercial copyright concerns and ruled that the non-profit internet giant Wikimedia breaches Sweden's copyright laws by publishing photos of public artworks.

Wikimedia is the group behind the free online encyclopaedia Wikipedia. It has created a vast online knowledge repository by allowing members of the public to group-edit entries and upload pictures to its pages for educational purposes.

The disgraceful judgement is a victory for the Visual Copyright Society in Sweden (Bildupphovsrätt  i Sverige - BUS), which sued Wikimedia at Stockholm District Court for publishing photos of Swedish public sculptures and other public artworks without first getting permission from the artists.

In its judgement the supreme court affirmed that Swedish copyright law does permit members of the public to take pictures of public artworks. But, the court said:

It is different when it's a database where artworks are made available to the public to an unlimited extent without copyright-holders receiving any remuneration. A database of this kind can be deemed to have a commercial value that is not inconsiderable.

Wikimedia's Swedish operations manager Anna Troberg told The Local:

We are naturally very disappointed. We view this as an anachronistic and restrictive interpretation of copyright laws. It also runs counter to recommendations from the European Court of Human Rights.

Troberg said the group would now consult its lawyer and its parent foundation in the United States before deciding what action to take.