Posts tagged Copyright
Google once again is set to battle Oracle in court over how it used the Java programming language in building its Android mobile operating system. Oracle, which lost a patent and copyright battle to Google in the spring of 2012, has filed an appeal in the case and oral arguments started this week.
At the heart of the appeal was the ruling by Federal Court Judge William Alsup that application programming interfaces (APIs) cannot be copyrighted. In the original case, a jury came to a split decision that Google’s use of Java APIs were considered “fair use.” In the end, it did not matter what the jury decided because Alsup ruled against Oracle on if APIs could be copyrighted.
The primary issue in the appeal comes down to how Google used Java in Android. Overall, Google engineers wrote some 15 million lines of original code to build Android. But it relied on some of Java APIs (Oracle took control of the open source Java language when it bought Sun Microsystems in 2009) to build Android. Specifically at stake is the structure, sequence and organization (SSO) of the APIs, which Google basically rebuilt with their own code.
In his original ruling, Alsup said that SSO was not applicable to copyright. He described it in his 2012 judgement as akin to the organizing system of a library (think, the Dewey Decimal system) and could not be copyrighted.
In many ways, the Oracle and Google standoff pits old technology companies against newer companies. In February 2013, Microsoft, EMC and Netapp filed a joint brief supporting Oracle. The App Developers Alliance and Rackspace both support Google.
“The court’s ruling, if allowed to stand, will deal a serious if not potentially staggering blow to existing incentives established by copyright law for innovation in this critical industry,” the joint brief stated.
The appeal by Oracle was long expected after the split jury decision on fair use and Judge Alsup’s controversial ruling on if APIs can be copyrighted.
A decision on the copyright claims is not expected for several months, according to Bloomberg.
Google is also facing another patent court battle from a group called the Rockstar Consortium over the implementation of Android. Rockstar is a company jointly owned by Apple, Sony, Microsoft, BlackBerry and Ericsson that formed after the group bought Nortel’s patent portfolio at auction in 2011.
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And you would be wrong, as Nintendo itself set out to demonstrate last week by going out of its way to alienate a bunch of its fans on YouTube.
The fans in question make YouTube “playthrough” videos about, well, video games — features that combine elements of commentary, review, tutorial and walk-through. Some of these commentators reach millions of subscribers, and many support themselves in full or in part by running ads against their videos.
The Empire Strikes Back
This, apparently, Nintendo could not let stand. So last week, the game company began making mass copyright claims on YouTube gameplay videos — in particular, on the the popular “Let’s Play” series of playthrough videos. Nintendo did so via YouTube’s “Content ID” system, which allows the company to robo-claim ownership of videos that contain footage of its video games.
Nintendo isn’t trying to take down the commentary videos. But by asserting copyright, the game company can then run its own ads against the commentaries — and thus, of course, deprive the video creators of revenue.
In effect, Nintendo has put those video creators on notice that, while it will tolerate them for now, it won’t let them make money from their efforts. It doesn’t matter if the post is a detailed review, a think piece on the art style, or a tutorial for a difficult level, all of which involve a substantial additional effort on the part of the video creator. Insofar as Nintendo, is concerned, any ad revenue those efforts raised now belongs to… Nintendo.
Nintendo released this statement to the gaming-news site Gamefront last week:
As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.
For more information please visit http://www.youtube.com/yt/copyright/faq.html
ReadWrite also contacted Nintendo for comment. A spokeperson replied that the company is “looking into” the mass copyright claims, but offered no further statement.
Mass Unhappiness Ensues
Let’s put this simply: Nintendo’s move is one of the most egregious marketing mistakes ever committed by a major video-game company. It is going to come back to bite Nintendo. Hard.
Playthrough videos such as Let’s Play do a lot to fuel the commercial videogame complex, every bit as much as magazines and blogs. With their ad revenue diverted to Nintendo, however, these Internet-famous gamers have no commercial incentive to play, or talk in-depth about, any Nintendo games ever again.
Some are already boycotting Nintendo. Take, for instance, Zack Scott, a prolific creator of Let’s Play videos:
Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.
Dozens of videos by angry gamers have started to populate the site, and comment sections across YouTube are exploding.
“I’ve bought, played and enjoy several games simply because I heard about them and saw gameplay on YouTube,” one individual using the pseudonym TelaranRogue wrote in the comments to a new anti-Nintendo video (titled, cleverly enough, “Nintendo Hates YouTubers”). ”With this move, Nintendo just killed their chance of getting sales from me.”
“I think Nintendo really took a crap on themselves in doing this,” wrote “robert letourneau” in comments to the IGN video “Let’s Not Play Nintendo Games.”
Nintendo’s Self-Inflicted Headshot
Shaun Spalding, a former attorney at New Media Rights, argues that Nintendo is really only harming itself. “[G]ameplay videos generate consumer buzz (so much so that game publishers actually pay some high-level Youtubers lots of money just to start ‘Let’s Playing’ their games),” he told me in email. “Both the PS4 and Xbox have built-in capabilities that help gamers upload videos to the Internet, but Nintendo has moved in the opposite direction.”
It’s not even clear that Nintendo’s copyright claims are justified (although they’re likely to stand unless successfully challenged in court). Some critics argue that playthrough videos should qualify for the “fair use” exception to copyright because they don’t incorporate the entirety of the original game and also add a substantial amount of new creative material in the form of commentary, gameplay tips and the like.
As gaming commentator “Totalbiscuit” pointed out in his video on the topic:
[B]ecause you actually play the game yourself, and you do so in a different way, you transform the work in some respect. It becomes yours, it becomes unique.
Too bad Nintendo doesn’t see it that way. At least it’s first in line to suffer from its short-sighted decision. Unfortunately, its fans are queued up right behind it.
Image screencapped from YouTube video “Let’s Play Donkey Kong Country 2” by Cobanermani456
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According to a report from IDG News, a “toned down” version of an earlier, more restrictive “ancillary copyright” law has been published in Germany and will go into effect in August. The ”ancillary copyright” rule was proposed in August of 2012. In its initial form it would…
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Yesterday, an influential congressman announced plans for a “comprehensive review” of U.S. copyright law, potentially the first such effort in more than 35 years. And that’s got hearts palpitating across Silicon Valley, Hollywood and Capitol Hill.
But don’t get too excited about the possibility for reforms that would safeguard an open and innovative Internet just yet. The legislator in question, House Judiciary Committee Chairman Bob Goodlatte, has been carrying water for Hollywood and other Big Copyright interests for years. In other words, this smells like a trap for reformers.
(See also: The Internet Assault On TV Is Working)
There’s no shortage of things to fix in the U.S. copyright system, which was last overhauled back when networking mostly meant dumb terminals connected to a minicomputer or a mainframe. Yet here’s where Goodlatte is coming from:
- He supported SOPA, which would have let federal agencies effectively censor alleged copyright infringers from the Internet without due process or much of an appeal;
- He co-sponsored CISPA, which would allow private business to share your personal information with federal agencies without sufficient privacy protections;
- He’s generally considered one of the bigger copyright maximalists in the U.S. Congress.
So what’s he really up to? Here’s what Goodlatte said in a statement:
The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.
Compensation for copyright, digitizing published works, licensing, and cutting through the complexity of existing copyright law — these are all ripe subjects for reform. There’s just little reason to think Goodlatte is the right person to craft compromises that offer fair compensation for copyright holders without stifling the development of new digital-media services or crushing individual privacy.
Confederacy Of Dunces
Generally speaking, the odds are against innovation-friendly copyright reform in the current Congress. Democrats have, by and large, been captured by Hollywood when it comes to discussion of copyright terms, digital rights and piracy. in their thinking on this issue. Republicans, meanwhile, have occasionally shown glimpses of original thinking on these subjects — often as not, only to recant them as quickly as Hollywood lobbyists could pick up a phone.
Last November, for instance, the House Republican Study Committee released a position paper debunking various copyright “myths,” among them the notions that the current system compensates creators, benefits the public, and promotes innovation. It does no such thing, staffer Derek Khanna wrote; instead, the report called out copyright as an institutional monopoly that crushes new markets before they can prove themselves.
Within twenty-four hours, the GOP had retracted the report, walking the party’s position back to the same tired arguments that we had all heard before. Not much later, Khanna himself was out of a job. Techdirt, which has followed the issue extensively, has also noted that Register of Copyright Maria Pallante has suggested that enforcement agencies focus on large-scale piracy (a good idea) but that copyright never inhibited innovation (incorrect).
Absent a SOPA-style revolt by major Internet companies against the current copyright regime, which favors owners over creators and old media industries over the digital world, the best we can probably hope for is that Goodlatte’s review doesn’t make a bad situation worse.
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A U.S. district court judge has confirmed, once again, that YouTube operates within the rules of the Digital Millennium Copyright Act and is protected by safe harbor. The court said YouTube could only be held liable for material it knew existed.
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Well, that didn’t take long. Two months after its launch, the social video-sharing app Vine has received its first copyright takedown notices. The complaints were sent by NPG, the record label owned by Prince, whose music appeared in a few six-second videos on Vine.
This is absurd. Uploading an entire Prince album to YouTube is one thing. But six disjointed seconds in smartphone camera quality? Something tells me four clips of that nature aren’t going to eat into Prince’s album sales.
Prince, who three years ago declared the Internet to be “completely over,” is known as a stalwart, sometimes overzealous defender of his intellectual property online. In fact, it was the use of a Prince song in a YouTube video that led to Lenz v. Universal, an often-cited 2008 court decision dealing with copyright and fair use.
In that case, the court ruled in favor of Stephanie Lenz, whose video of her baby dancing to Prince’s song “Let’s Go Crazy” was the target of a copyright infringement claim by Universal Music. Lenz argued that video constituted fair use and the court agreed that Universal didn’t adequately weigh the fair use principle when issuing takedown notices, something it has a reputation for doing rather aggressively.
Let’s (Not) Go Crazy
Whether or not six seconds of a Prince song in a user-generated video constitutes fair use is something for a court to decide. If it’s not, though — if uploading a crappy, six-second video that contains someone’s song turns out to be illegal — we have to ask ourselves some pretty fundamental questions about copyright and what it’s for.
Of course, that there’s a need to rethink copyright in the 21st century is hardly breaking news. The original framework doesn’t work that well for anybody, as has been evident for at least a decade. Last month, the U.S. Copyright Office itself called for a dramatic overhaul of copyright law, with Register of Copyrights Maria Pallante saying “it is time for a new law.”
Whatever replaces the current copyright framework will need to balance the rights and financial interests of creators with the fact that we have a completely new way of creating and sharing culture and media than we did a few decades ago. That will mean changes in how creative works are distributed and monetized, sure, but it also opens up a whole universe of new cultural possibilities, which shouldn’t be squashed without a very good justification.
To say that things have changed since Prince recorded “Let’s Go Crazy” in 1984 is an understatement. When you consider how dramatically (and mostly for the better) the Internet has changed how we live, work and yes, create and experience culture, the idea of waging an all-out war against tiny pieces of content like this seems, well, kind of crazy.
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Copyright. Innovation. Free speech. These firestarting issues and the relationship between creation, law and technology were the topics in a Sunday panel that just may have been the sleeper hit of SXSW.
Speakers included Andrew Bridges, partner at Fenwick & West LLP, Margot Kaminski, the executive director at the Information Society Project at Yale Law School, Wendy Seltzer, policy counsel at the World Wide Web Consortium (W3C), Derek Khanna, a former Republican Study Committee staffer, and surprise guest Ben Huh, the chief executive of Cheezburger. All have been influential in speaking out against and litigating civil liberty cases pertaining to ACTA, SOPA and PIPA.
After the panel, ReadWrite spoke one-on-one with Bridges, whose 30-year career has included representing clients like Google and MasterCard in cases involving copyright, trademark and unfair competition. Bridges spoke on the lessons stemming from the hour-long panel:.
ReadWrite: You have lots of criticisms of the copyright system. Can you explain your objections?
Andrew Bridges: Copyright is elevated to a level of importance in our society and our politics that it does not seem to deserve. If you actually took some copyright policies and extended them into other arenas, the consequences would seem absurd. Let’s say we decided to apply the Six Strikes principal. Say you send out one of those mailers for a subscription to Time Magazine. And you check the box that says bill me later. Let’s say that they start sending you Time Magazine, and after 2 or 3 issues they send you the bill, and you never pay. But in the meantime you have 6 or 8 issues before they cut you off for not paying. My proposal is let’s adopt Six Strikes and knock somebody off the postal system. You don’t pay for it, you don’t get to use the postal service any longer. Or let’s say somebody blows through a toll plaza 6 times, does that mean you don’t ever use the highways anymore? In the world of DMCA take-down notices, the copyright holder sends 6 wrongful take down notices, maybe they should lose access to the copyright system itself. Why is this limited to occasional, or amateur or individual persons who induce copyright infringement and why are they subjected to these type of penalties?
ReadWrite: How is copyright disruptive to technology?
Andrew Bridges: New technologies do disrupt existing business models. They do disrupt current expectations of profits and revenues. Actually copyright law itself has its own disruptive function. The function of copyright law as it has evolved is indeed to disrupt innovation and to disrupt new technologies that threaten the interest of copyright holders. Frankly all copyright legislation has been in reaction to new technologies that are developed. And copyright law has sought as its purpose, interfering with, limiting, pampering and indeed disrupting innovation of technology, business plans, even disruption of consumer choice.
ReadWrite: For example?
Andrew Bridges: It’s illegal to operate a business where you rent CDs out. Under copyright law, it’s illegal to watch on your DVD player, a DVD that a Greek friend of mine brings over as a present, because it has region coding. That’s a disruption of a user experience, by copyright law. We talk about disruptive technologies, but I think we’re talking about both disruptive technologies and disruptive law. I think if we have to look at rival disruptions, on the one hand [disruption] of business models and our expectations, and the other side [disruption] of technological developments and innovations and consumer choice, then I tend to cast my allegiance on the side of those who are disrupting older business models. That is how an economy grows, by creative disruption. That’s exactly how innovation enriches our culture and gives us the progress of science and the useful arts.
— Flip The Media (@flipthemedia) March 10, 2013
ReadWrite: How out of whack are the penalties for copyright violation?
Andrew Bridges: A woman in Minnesota got hit with a jury verdict of $1.5 million for downloads without any evidence that she actually shared anything with anybody else. That law allows statutory damages, which I call fictional damages because they [are] divorced from any proof whatsoever. The law allows fictional damages of $150,000 per work infringed. And that includes $0.99 downloads. So the ratio between penalty and loss revenue is excessive… 150,000 to 1. Let’s put copyright in the broader context. If I jump the turnstile of the New York City subway, If the copyright proportionality damages applies, it would be OK for that penalty fare to be $370,000. It’s as ridiculous in copyright law as it is in subway law.
ReadWrite: So who’s at fault here?
Andrew Bridges: People are focusing on Congress, [but] that’s misplaced… after SOPA. Because things don’t have to happen in Congress for bad things to go off. Even though SOPA failed, SOPA is now in some respects the law of the land. Because we now have Soft SOPA. We have the government putting pressure on advertising networks and putting pressure on payment processors, unofficially, to take the same measures that SOPA was going to require them to [do]. But now it’s a sort of ‘if you know what’s good for you, could you pretty please, wink-wink’ method.
ReadWrite: Can you give an example of that pressure?
Andrew Bridges: There are payment processors notifying companies that they are no longer willing to process payments for them. It’s happening. It happened with three of my clients. It’s part of what the administration calls its ‘voluntary cooperation initiative,’ which the Intellectual Property Enforcement Coordinator Victoria Espinel describes in her annual report. And we have advertisers blacklisting certain sites, and telling sites. ‘We’re not going to place advertising on your site because people tell us you’re not a good site.’ So that’s happening. And it’s being done as “Oh it’s just a private decision.” But it’s no secret that the government is encouraging these private decisions. So that’s why I call it Soft SOPA.
Photo courtesy of Wendy Seltzer.
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Google and the entertainment industry have long had a complex relationship. After years of taking heat from the MPPA and RIAA, the search giant is desperately trying to shed its reputation as an accomplice to copyright infringement.
Why? Well, avoiding billion dollar lawsuits like the one Viacom filed (unsuccessfully) a few years ago would be nice. But Google also wants to be on good terms with the music and movie industries so it can strike content deals that will help products like YouTube, Google Music and Google TV to thrive. The company still gets the majority of its revenue from search ads, a reality it knows won’t last forever.
The changes started off small but are now getting more serious as content becomes a more important focus for Google’s business. Still, even after some of the most significant changes, the record industry and Hollywood tend to fire back complaining that they don’t go far enough. That happened again this week when the RIAA put out a report questioning the effectiveness of Google’s search results tweaks.
As our own Brian Proffitt demonstrated with some test searches, the RIAA might have a point. But Google is trying. It has a delicate balance to strike between the interests of copyright holders and the users who generate more than a trillion search queries every year. It’s eager to please the content industry, but has to roll these changes out gradually to avoid a mass user freakout.
So how has Google altered its search engine and other products to cater to big copyright? Here are four notable recent examples:
1. Blacklisting Terms From Autocomplete and Google Instant
In January 2011, Google started blocking certain terms from its Autocomplete and Google Instant features. Rather than undertaking the full-blown search results censorship the entertainment industry wanted, Google decided to meet them half way and at least stop recommending piracy-related search terms to people.
Since then, the list of forbidden terms has grown. Even Megaupload is still blocked from Autocomplete, even though that site was seized by the U.S. government over a year ago.
Overall results are mixed. If I type “hurt locker torrent” into the search bar, it doesn’t show me instant search results (nor did it attempt to autocomplete the phrase). But “torrent hurt locker” is another story. That returns links to torrents for the popular movie, followed by an article about how the film’s makers sued thousands of BitTorrent users. Careful!
2. Streamlining The Copyright Takedown Process (SometimesTo A Questionable Degree)
When you run a user-generated content site as massive as YouTube, you have to be capable of handing potentially millions of copyright complaints. To keep up with the never-ending flood of complaints, Google has progressively made it easier to file them. Its Content ID feature lets copyright owners supply YouTube with audio or video reference files that the system then uses to automatically identify infringing content and flag it for further action.
As you can imagine, Content ID has resulted in some highly questionable takedown requests. So last year Google implemented an appeal process to help minimize frivolous takedowns. Of course, even with protections in place, eyebrow-raising takedown requests are still granted from time to time.
Google also now claims to be responding to copyright takedown notices within 24 hours, a promise it made to the content industry a few years ago.
3. Tweaking Actual Search Results To Discourage Piracy
The content industry has long wanted Google to not just tweak search suggestions, but to actually remove and downplay results that lead to infringing content. For years, Mountain View was unwilling to tinker with the secret algorithm that bulldozes billions of dollars into the company every year. As big content companies become more valuable potential allies, Google has warmed up to the idea.
Google is constantly bombarded with requests to removed URLs from its search results on copyright grounds. In 2012, the company pulled 50 million infringing links from its index. In the last few months, the number of requests have skyrocketed, so it’s likely we’ll see even more links de-indexed in 2013.
Granting DMCA takedown requests is one thing. What the content industry has wanted all along was a deeper, algorithmic change to Google’s search results. In August, they got their wish.
In its most radical anti-piracy move yet, Google added copyright takedown requests to the more than 200 signals it uses to rank and index search results. That is, if a site gets a high number of “valid copyright removal notices,” it may wind up taking an SEO hit as a result. Not surprisingly, the RIAA was quick to cry “not good enough!” only six months after the admittedly measured changes were made.
4. Next Up: Defunding Piracy Sites
To quell any remaining doubts that it’s serious about piracy, Google is about to cave into another long-held entertainment industry wish. According to the Telegraph, Google is currently in talks with MasterCard, Visa and PayPal to cut off funding to sites that engage in copyright infringement. The report is short on details, but presumably such a tactic would be reserved for some of the worst offenders, especially those who dodge takedown requests or operate in other jurisdictions. This is an unconfirmed report, and one that reveals only discussions, not action. If Google does proceed with this one, it’s anybody’s guess what the timeline might look like.
Of the changes that have been implemented, each one is decidedly measured. Google can’t quite afford to go nuclear with its antipiracy efforts, much to the chagrin of the industry. This is going to be an evolutionary and thoroughly imperfect process. As the business incentives and industry pressures mount, expect to see Google make increasingly aggressive moves. And, like clockwork, expect the RIAA’s complaints to keep coming.
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