Free for a Fee

Mike Masnick
Tech Dirt
June 12, 2019

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA’s Section 1201. 1201 is the so-called “anti-circumvention” or digital locks provision of the DMCA, that says that it’s infringing to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that is designed to “circumvent” DRM or other “technological protection measures.” Basically, if there’s a digital lock on something — doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.

Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing — so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.

The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it’s true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.

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The content in this post was found at https://www.techdirt.com/articles/20190710/23312242561/three-years-later-1st-amendment-challenge-over-dmcas-anti-circumvention-provisions-can-move-forward.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Timothy Geigner
Tech Dirt
June 19, 2019

. . . a deep fake of Kim Kardashian that altered an interview given to Vogue Magazine, such that she appears to be discussing a conspiratorial group called Spectre and giving her own fans a hard time. It’s all fairly parodic and not something that passes the most basic smell test. And, yet, as the discussion rages on as to how sites should respond and handle deep fakes, this particular video was taken down due to a copyright claim . . . .

As hard as it is generally to come up with an answer to this homework assignment, it is all the more difficult to answer this question with copyright law. Copyright very specifically carves out space for all of the above to make room for fair use, which is why it so boggles the mind that YouTube agreed to take down this Kim Kardashian video in the first place. The entire point of this particular deep fake is far less malicious than the Pelosi video and seems to be completely geared toward humor and parody. Suggesting that moves like this are a problem because they’re only available to the wealthy misses the point: moves like this aren’t legally available to anyone at all, rich or otherwise.

None of this is to say that the ability to create deep fakes isn’t a problem, of course. But it sure as hell isn’t a problem that can be easily solved by throwing copyright law at it.

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The content in this post was found at https://www.techdirt.com/articles/20190619/05392542429/kim-kardashian-deep-fake-video-removed-copyright-claim.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Timothy Geigner
Tech Dirt
Nov 2nd 2018

Earlier this year, we wrote a bunch of posts on the Copyright Office’s request for comment on changes needed to the DMCA’s anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries’ cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you’re a documentarian, you can’t circumvent. The MPAA, as you would expect, said that allowing for this would kick off “widespread hacking” of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn’t want to violate the DMCA to get the Fair Use clips they wanted.

Well, the Copyright Office made its decision and the exemption will now be offered to filmmakers en masse.

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The content in this post was found at https://www.techdirt.com/articles/20181101/10104240962/copyright-office-extends-anti-circumvention-dmca-exemptions-to-all-filmmakers-not-just-documentarians.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Timothy Geigner
Tech Dirt
Nov. 20, 2018

Much has been written at this point about the problems with various “notice and takedown” policies, including in the DMCA. Much of the problems arise from the DMCA’s requirement that service providers “expeditiously” remove infringing material upon notice, which naturally leads to platforms erring on the side of removal versus taking a hard — and manual — look at the material in question to see if it’s really infringing. This results in all kinds of takedowns of speech that is not infringing, typically as a result of human error, a dispute over the actual ownership of rights, a lack of recognizing fair use, or, perhaps most often, an automated system for sending DMCAs simply screwing up.

But another weakness in the notice and takedown policy is in how much power it places in the hands of trolls and bad actors to simply fuck with people. This can be seen in action in the case of one SoundCloud troll getting all kinds of music taken down by pretending to be a rights holder.

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The content in this post was found at https://www.techdirt.com/articles/20181116/09175541064/soundcloud-troll-getting-dmca-takedowns-shows-weakness-notice-takedown-systems.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Timothy Geigner
Tech Dirt
Oct 11th 2018

We’ve had plenty of stories revolving around content owners and publishers issuing DMCAs over trailers and advertisements. These stories are always head-scratching in one way or another, typically centering around the question of why anyone would ever want to take down free advertising, even imperfect free advertising. We’ve also seen plenty of examples of content owners accidentally sending DMCA notices over their own content, all of which help to highlight both the flaws in the DMCA process and just how difficult it is for even content owners themselves to know just what is infringing and what isn’t.

But when these two worlds collide, it becomes something special. We’re not yet 100% certain, but it sure looks like Epic Games DMCA’d its own trailer for the upcoming Fortnite Season 6.

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The content in this post was found at https://www.techdirt.com/articles/20181010/09400640812/epic-games-likely-dmcad-own-fortnite-trailer-showing-problems-with-youtubes-dmca-process-yet-again.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Mike Masnick
Tech Dirt
Oct 1st 2018

. . . . Meanwhile, down in Texas, there’s the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). . . .

Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that’s not enough to show that it was profiting from the infringement.

Universal Music tried to amend the complaint to show that it had “more evidence” that Grande and its management company, Patriot, were still vicariously liable — but the magistrate judge says it’s just trying to re-litigate what it lost last time.

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The content in this post was found at https://www.techdirt.com/articles/20180923/12051040696/court-shoots-down-record-labels-attempt-to-expand-definition-vicarious-infringement.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Lex Blog

AUGUST 22, 2018

As we have noted previously, the California Court of Appeal’s Hassell v. Bird decision in 2016 upholding an injunction requiring Yelp to remove certain user reviews was discouraging to social media companies and other online intermediaries, as well as to fans of Section 230 of the Communications Decency Act and proponents of Internet free speech generally. The recent California Supreme Court decision reversing the Court of Appeal was, therefore, met with considerable relief…

TechDirt

The long saga of the BMG v. Cox case is now over. If you don’t recall, BMG had hired the copyright trolling outfit Rightscorp to bombard ISPs with shakedown letters, based on accusations of copyright infringement. Rightscorp really wanted ISPs to pass those letters on to ISP subscribers, including the part where they demand money to leave you alone. As was revealed during the case, Rightscorp would blatantly lie to those subscribers, telling them that if they were innocent they needed to first hand their computers over the police for a forensic search. Cox, after being bombarded with these shakedown letters, started ignoring the Rightscorp letters, leading BMG to sue.

Cox pointed to the DMCA safe harbors to protect itself, but the judge, Liam O’Grady, made it pretty clear that he didn’t care much for the internet at all, and didn’t seem to mind Righscorp and BMG shaking down people for money with the threat of losing their entire internet access. Of course, it did not help at all that Cox itself had some damning emails about how they treated subscribers accused of infringement. While plenty of attention has been placed on Cox’s apparent “thirteen strikes” policy for those accused (not convicted) of copyright infringement, the real problem came down to the fact that Cox didn’t follow its own repeat infringer policy. So, in the end, Cox lost to BMG in the lower court and it was mostly upheld on appeal.

However, the case was sent back down to the lower court because O’Grady messed up with his jury instructions, providing them with the wrong standard for contributory infringement (O’Grady’s jury instructions about contributory infringement presented it as a much broader standard than it actually was). And thus, the case was supposed to go back for another trial… but that’s now over as the two sides have settled and Judge O’Grady immediately signed off on the settlement.

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The content in this post was found at https://www.techdirt.com/articles/20180824/12282440502/recognizing-it-had-no-chance-cox-settles-bmg-copyright-trolling-case.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com