Shallow Harbors: EU Poised To Rewrite Rules For User-Generated Content

Almost from the day the Digital Millennium Copyright Act came into effect, copyright owners have sought to limit the so-called safe harbor protections against infringement liability the law grants to online service providers that host user-uploaded content.

But a series of lawsuits aimed at setting strict limits on the safe harbors, starting at least as early as Perfect 10’s 2002 litigation against CCBill and stretching through the Veoh cases and Viacom’s long-running battle with YouTube, largely failed in that regard and arguably made things worse for rights owners. The result was a series of court rulings reinforcing the strict and precise requirements of the notice-and-takedown system the law spells out for getting infringing content removed from online platforms.

Legislative efforts to limit or weaken the safe harbors fared no better, culminating in the spectacular crash-and-burn in 2012 of the Stop Online Piracy Act (SOPA) in the House and the PROTECT-IP Act (PIPA) in the Senate, which largely scared Congress off similar attempts ever since. Read More »

Have Netflix, Will Travel: EU Digital Single Market Inches Closer

Negotiators for the European Commission, the European Parliament, and European Union member countries this week reached agreement on new rules that will allow citizens from one EU country to access digital services they subscribe to, such as Netflix, Spotify, and sports live streams, when traveling in another EU country starting in 2018.

Up to now, exclusive territorial licenses between rights owners and online services, as well as other rules, have generally prevented services from granting access to subscribers from outside their home country.

“Today’s agreement will bring concrete benefits to Europeans. People who have subscribed to their favourite series, music and sports events at home will be able to enjoy them when they travel in Europe,” EU vice-president in charge of the Digital Single Market Andrus Ansip said in a statement. Read More »

Unsafe Harbors: Fake News Is Part Of a Larger Problem For Facebook

Faced with mounting criticism over the proliferation of fake “news” stories on Facebook, and their alleged role in tipping the outcome of the presidential election, CEO Mark Zuckerberg has fallen back on a familiar formulation: Facebook is a technology company, Zuckerberg insists, not a media company. It merely provides a platform where users can post, share, and respond to content posted and shared by others.

“Our goal is to give every person a voice,” Zuckerberg wrote in a somewhat plaintive blog post over the weekend. “We believe deeply in people. Assuming that people understand what is important in their lives and that they can express those views has driven not only our community, but democracy overall. Sometimes when people use their voice though, they say things that seem wrong and they support people you disagree with.”

BN-QU803_1115te_GR_20161115083039The clear and intended implication is that Facebook is not liable for what its users post, and has very circumscribed responsibility to police false, misleading, and tendentious content on its platform. While Facebook and other social media platforms are now taking some modest steps to discourage the spread of fake news content, they’re stopping well short of accepting editorial accountability.

“This is an area where I believe we must proceed very carefully,” Zuckerberg wrote. “Identifying the ‘truth’ is complicated. ..I am confident we can find ways for our community to tell us what content is most meaningful, but I believe we must be extremely cautious about becoming arbiters of truth ourselves.” Read More »

A World Of Difference: Copyright in TPP and the EU

The full and final text of the Trans Pacific Partnership agreement was officially released today, giving the public and Congress their first look at the long-gestating and controversial trade deal. And it’s clear from the chapters on intellectual property and investment that content creators and copyright owners got more or less everything they were seeking from the deal.

The treaty, which Congress will now have 90 days to vote up or down but cannot change, would require countries to ban the circumvention of EU headquarterstechnical protection measures (i.e. DRM) and, like the the Digital Millennium Copyright Act in the U.S., to sever liability for circumvention from any actual infringement of copyright. In other words, circumvention is verboten whether or not it results in an infringement under a participating country’s national copyright law.

The text does allow countries to pass exceptions to the ban on circumvention for non-infringing uses, as the DMCA permits through a triennial rulemaking by the Library of Congress, but it does not make those exceptions mandatory. The text also avoids any reference to a U.S.-style fair use principal while extending the term of copyright in all TPP countries to the U.S. standard of the life of the author plus 70 years. Read More »

Vive la France?

french-flagAs often as the Pirate Party of Sweden was condemned at the World Copyright Summit Tuesday, speakers heaped praise on the French government for passing the Creation and Internet law implementing a system of “graduated response” (i.e. “three-strikes”) to policing illegal file-sharing.

“I strongly believe that if we’re going to be successful in this fast-paced digital age, a solid partnership between the copyright community and the Internet Service Providers is crucial,” Sen. Orrin Hatch (R-Utah) said in a morning keynote. “Many countries have begun to take action by working closely with ISPs to curb online piracy. For example, France has adopted a three strikes law, which calls for ISPs to suspend a subscriber’s service if they are accused three times of pirating copyrighted material. Across the globe, from Japan to the UK, from Australia to Brazil, there have been engaging discussions within the industry on how best to proceed on this front.” Read More »

Morning read: Jolly Roger flies in Europe, Copyright Summit in US

Hoist the Jolly Roger maties, the Pirate Party has claimed at least one of Sweden’s 20 seats in the European Parliament (and possibly two) as a result of thisweekend’s voting across the 27-nation bloc. The party, which ran on a platform of legalizing file-sharing and rolling back government surveillance powers, garnered 7.1% of the vote, putting it ahead of several more-established parties.

pirate-partyTurnout in Sweden was 43.8%, slightly ahead of the 37.1% turnout in the 2004 election, despite predictions of record low turnout heading into the weekend. TorrentFreak does the mathandestimates about 200,000 Swedes voted Pirate this time around, a nearly five-fold increase over the 35,000 votes the party garnered in the 2006 national election. The party saw a surge in membership in the wake of the conviction in April of four of the founders of The Pirate Bay, one of the largest BitTorrent tracker sites.

Apart from the immediate implications of the Pirate Party victory, the election results in general are likely to lead to some hand-wringing in EU capitals. Governing parties in about a dozen EU countries suffered defeats in the election, most notably in Britain, where Labour claimed only 16% of the vote, its lowest total in decades.

In general, small, even fringe, parties did well across the EU, including the Whites-only British National Party and far-right parties in the Netherlands, Hungary and Austria. The  anti-Europe British Independence Party also scored gains. Across the bloc, right-leaning parties scored significant gains while center-left parties were generally pummelled.

Back home, the 2nd World Copyright Summit is scheduled to open in Washington, DC on Tuesday. The two-day conference is sponsored by the International Confederation of Societies of Authors and Composers (CISAC), and will feature some 500 delegates from 55 countries.

The Pirate Party victory is sure to be a topic of discussion. The full agenda is here.

And oh, yeah, Apple Worldwide Developers Conference  blah, blah, blah, new iPhone, blah, blah, blah, Steve Jobs is risen, blah, blah, blah, and he is separating the righteous from the the wicked, and the righteous shall have their apps approved and the wicked shall be cast into the Palm of eternal darkness blah, blah, blah.

Pirates at the gates

Voting begins Thursday across the 27 member countries of the European Union for representation in the 785-seat European Parliament. Record low turnout is expected.

But the low turnout doesn’t mean that nothing interesting can happen. In fact, it could well open the door for smaller parties with, let’s call them, atypical agendas, to gain seats in the body that plays an important role in passing pan-EU laws and setting the budget for the European Commission, the executive arm of the EU.

Sure enough, in Sweden, the Pirate Party, which advocates a major roll-back of copyright laws, doing away with  patents and increased privacy protection, is poised to send its first representative to Brussels, seat of the EU. Recent surveys show the party polling between 6% and 8% among likely voters, well behind the Swedish Social Democrat party and the ruling Moderate (conservative) party, but well above the 4% needed to earn to a seat. Support is even stronger among voters under 30, at abotu 13%. Read More »

Morning read: Google takes on Amazon, Sony still pining for synergy, more

Topping the news this morning, the New York Times reports that Google was telling publishers at the annual BookExpo over the weekend that it is committed to launching a new service by the end of the year that would allow publishers to sell ebooks directly to consumers at prices set by the publishers. That would put Google in direct competition with Amazon, setting up a potential clash of titans that will likely bring renewed attention to the ebook market.

google-amazonAccording to the Times, publishers are thrilled with the plan because it would let them fix retail prices while Amazon insists on loss-leadering ebooks to promote sales of Kindles. The new program would be separate from Google’s proposed settlement with publishers in the book-scanning case, which awaits court approval and is under investigation by the Justice Department. Meanwhile, Ars Technica reports this morning that the EU may also being looking into the deal.

Elsewhere this morning, Daily Variety has an inadvertantly funny story up about Sony’s latest effort to spin the combination of Blu-ray and PS3 as a good idea: bloated gameware that can only fit on Blu-ray discs. “What Blu-ray has allowed us to do is build these epic experiences,” SCE’s Scott Rohde tells the Hollywood trade. “When you have more room on the disc to store more assets, you can do a lot more with your titles.”

And when you have a Blu-ray drive in your game console you have to charge more for the console, making it uncompetitive with the Wii and Xbox 360.

Sony will introduce a bunch of first-party Blu-ray games at E3 this week. Variety‘s Marc Graser manages to scrounge up one third-party developer, Naughty Dog, to offer a tepid endorsement of the Blu-ray as a publishing platform. Wait’ll they see the replication bill.

In other Sony news, some leaked video and photos have made the long-rumored PSP Go the buzz heading into E3 (per the BBC). The big news: UMD is out as the storage medium, and a 16 gig flash drive is in.

Across the Pond, the U.K. film industry wants to government to introduce “speed humps,” on the Internet to slow down illegal file-sharing, the Guardian reports (alas, Media Wonk’s speed-humping days are mostly behind him…). The studios “are proposing that Internet service providers (ISPs), some of whom have previously sent letters to persistent illegal file-sharers warning that their actions could land them in court, should put in place technical measures that would shut off or warn about sites used by pirates.”

French three-strikes: More "European-style socialism"?

french-flagSo French president Nicolas Sarkozy finally got his three-strikes law. The French Senate voted 189 to 14 last week, in a session boycotted by the  opposition Socialists, to approve de loi Création et Internet, ratifying an earlier, narrower vote in the National Assembly. File-sharing reprobates in France could now find themselves cut off from the Internet by up to a year if they’re fingered a third time for illegal downloading.

Getting the bill this far was no leisurely stroll down the Champs Elysee, however. In the government’s first attempt to get  it through Parliament the bill was ambushed by the opposition in the National Assembly when the majority of members from Sarkozy’s own NMP party ducked the widely unpopular allowing a handful of Socialist members to send to an embarrasing defeat. Stung, the Sarkozy government vowed to try again and this time sparing no effort would be spared to make sure it passed.

In a particularly vivid example of the government’s determination, the Ministry of Culture arranged to have an employee of French broadcaster TF1 sacked on the eve of the vote for having the temerity to write his member of Parliament privately to urge a non vote on the bill. Read More »