Cablevision amicus brief largely backs studios in Zediva case

by Ben Sheffner 07/18/2011 17:02 (UTC-08:00) Pacific Time (US & Canada)

In a very interesting development, Cablevision today filed an amicus brief that largely backs the positions taken by the MPAA member studios in their lawsuit against the unlicensed video-on-demand service Zediva. Cablevision’s brief strongly supports the studios’ position in several respects. First, it agrees with us that Zediva’s service transmits movies “to the public” within the meaning of the Copyright Act. Second, it agrees with us that Zediva is a video-on-demand service, not a bricks-and-mortar “rental” service like Blockbuster. As the brief states on page 3, “conventional video-on-demand systems have always been understood to require public performance licenses” – licenses Zediva did not obtain. While we don’t agree with or endorse everything in Cablevision’s brief, the fact that it largely supports the studios’ positions is particularly significant given that Cablevision was on the opposite side from the studios in The Cartoon Network LP, LLLP v. CSC Holdings, Inc. (the “Cablevision case”). The hearing on the studios’ motion for a preliminary injunction is set for July 25 in federal court in Los Angeles.

The PROTECT IP Act Is Good for Emerging American Enterprises

by Howard Gantman 07/15/2011 06:41 (UTC-08:00) Pacific Time (US & Canada)

In a Huffington Post piece published earlier this week, Kauffman Foundation Senior Fellow Paul Kedrosky made sweeping, erroneous accusations about the PROTECT IP Act, what it would do, and who it would affect, finally concluding that the PROTECT IP Act would somehow damage the entrepreneurial ecosystem in this country. 

Nothing could be further from the truth.  

Among the most egregious inaccuracies was Kedrosky’s characterization of the type of websites that would be targeted and how complaints would be handled under PROTECT IP:  “If a site contains a page with illegal content -- say, a link to a pirated movie -- the copyright owner can petition a U.S. court to make that site invisible to people inside the U.S.” 

This is simply not true.  The PROTECT IP Act narrowly targets only foreign sites dedicated to facilitating, enabling, or engaging in copyright infringement for financial gain. 

As Copyright Alliance pointed out in a blog posted yesterday, “This is defined narrowly as sites that ‘have no significant use’ other than infringement – a test derivative of the standard announced by the Supreme Court in the Sony Betamax case, which has long been recognized by consumer electronics and information technology companies as the appropriate standard for distinguishing infringing products from staple articles of commerce.”

We’re talking about sites whose only purpose is to profit from the stolen work of American creators.   

Furthermore, only the Attorney General – not copyright holders – would be able to seek a court order asking search engines and other intermediaries to block these sites from U.S. consumers. 

Kedrosky continued recycling previously debunked myths about the bill, saying, “There is no due process… no presumption of innocence, and no notification requirement,” and claiming that it represents an “overbroad attack on free speech.”

The PROTECT IP Act clearly and explicitly requires notice to domain name owners.  Only “if through due diligence the Attorney General is unable to find” a website or domain name owner can an action proceed without this notice, and as in each and every case under PROTECT IP, a court’s approval would be required before ISPs or other entities would have to take any action. 

When constitutional expert Floyd Abrams weighed in, he found that “[t]he procedural protections under the Protect IP Act are so strong, uniform and constitutionally rooted that it is no exaggeration to observe that any complaints in this area are not really with the bill, but with the Federal Rules of Civil Procedure Itself, which govern all litigants in U.S. federal courts.” 

In the same letter, Abrams also discredited allegations that PROTECT IP would somehow violate free speech rights, stating, “Copyright violations are not protected by the First Amendment.”

Our question to Mr. Kedrosky is this: How is protecting the creative investments of American workers from foreign criminals bad for entrepreneurs?  New, legal online platforms offering movies and TV episodes are cropping up all the time, giving consumers the freedom to watch videos however, whenever, and on whatever they choose. 

Not only do these rogue sites hurt the creators whose work is stolen, they also discourage investment in these innovative startups that offer legal content.  That’s a double-edged sword that’s harming American workers, limiting our potential for economic growth, and slowing down the development of creative enterprises offering new ways for consumers to enjoy legal content. 

As Copyright Alliance put it, “These are criminal enterprises that are profiting from the work of America’s small businesses, artists, authors and entrepreneurs, and that would be subject to felony criminal proceedings (not just civil injunctive relief) if they committed these same acts in the brick and mortar world.  That sort of activity does not fall under any definition of entrepreneurship.”

The PROTECT IP Act will bolster, not harm, American entrepreneurialism by safeguarding intellectual and financial investments in exciting new ventures.

We’re Confident Tech Community Can Help Us Solve Challenge of Rogue Sites

by Paul Brigner 07/14/2011 09:11 (UTC-08:00) Pacific Time (US & Canada)

Authors of a technical white paper on the PROTECT IP Act held a press conference today co-sponsored by the Center for Democracy and Technology and the Internet Society.

The technologists’ report boils down to two main arguments: concerns that the provision of PROTECT IP which requires domain name servers not to resolve to criminal sites will affect developing security standards, and the assumption that the vast majority of Internet users will circumvent the remedies the bill puts in place.

We disagree.

DNSSEC was designed to provide consumers with a secure, trusted connection to services like online banking, commercial transactions, and electronic medical records - not to foreign websites operated by criminals for the purpose of offering counterfeit and infringing works. These evolving protocols should be flexible enough to allow for government, acting pursuant to a court order, to protect intellectual property online. And we have a hard time believing that average Internet users will be willing to reconfigure their computers to evade filters set up by court order when doing so will risk exposure to fraud, identity theft, malware, slower service, and unreliable connections. The PROTECT IP Act makes getting to rogue sites just inconvenient enough that the large majority of users will seek a legitimate option instead.

Here's the bottom line: We rely on the Internet to do too much and be too much to let it decay into a lawless Wild West. We are confident that America's technology community, which leads the world in innovation and creativity, will be capable of developing a technical solution that helps address the serious challenge of rogue sites.

L.A. Times Defends Copyright Alert System and Editorial Endorsement

by Howard Gantman 07/12/2011 08:16 (UTC-08:00) Pacific Time (US & Canada)

Responding to negative reader feedback, The Los Angeles Times defended its editorial endorsing the Copyright Alert System, a joint venture announced last week by ISPs and content owners.

The Times’ positive review of this new partnership between studios, record labels and top ISPs to educate users about the effects of content theft and to direct them to legal content elicited vitriolic responses from some readers, which in turn sparked further commentary from the Times.

The Times indicated that remarks from readers “seemed to be saying that they have an inviolable right to download movies and songs from one another without paying for them.”

“The fact of the matter is that studios and labels are entitled to enforce their copyrights.”

Defending the Copyright Alert System as a tempered approach to content theft, the Times argued:

“This isn't a case of Big Brother watching your every move online. One of the good things about the deal is that it doesn't call on ISPs to comb through their customers' traffic for unauthorized copies of movies or albums.  Instead, it calls for copyright holders to do what their contractors are already doing, to wit, looking for copyrighted works that users of file-sharing networks are making available to the public.”

Singling out one commenter directly: “…if you're offering to share files with anyone and everyone online, you have no reason to expect to keep that offer secret.”

“The new framework avoids lawsuits and subpoenas. ISPs won't disclose to copyright holders the names of the account holders suspected of piracy; they'll simply pass along warnings to their customers about infringements being detected and offer advice about how to respond.”

The Times further maintained that sanctions imposed through the Copyright Alert System for repeated offenders “are geared toward educating Internet users about copyrights (and wrongs), not toward kicking infringers off the Net.”

We agree that this is a great educational tool that brings content and ISPs together to combat a serious problem that is jeopardizing the livelihoods of our creative workers.  The plan does not impose draconian penalties, nor is it intended to harm users.  The Copyright Alert System is meant to help people understand what is happening on their networks; how it affects the creative community; and where they can find legal, safe alternatives to illegal downloads – for a start, check out the list on our website here.

Red Herrings

by Michael O'Leary 07/12/2011 06:09 (UTC-08:00) Pacific Time (US & Canada)

Yesterday, the Computer & Communications Industry Association (CCIA) released a report that aimed to measure the economic impact in the U.S. of what it describes as “fair use industries,” or “economic activity that benefits from copyright fair use and other limitations on the copyright regulatory regime.”

No surprise that the study turned up big numbers – Capital Trade, Inc., the firm that conducted it, found that one-sixth of economic activity and the jobs of more than 17 million workers in the U.S. could be attributed to these “fair use industries.”  

But what’s interesting is the us-versus-them language that’s all over CCIA’s announcement of the report, at least as it applies to the PROTECT IP Act and other efforts to prevent content theft.  This is from a statement by CCIA President and CEO Ed Black:

“Too often we hear about the cost of piracy without also considering the cost to legitimate sectors of the US economy of poorly targeted copyright enforcement measures like the pending Protect IP Act.  A better understanding of the costs of overzealous copyright enforcement should help policymakers make sure new rules, legislation and trade agreements protect rightsholders as well as innovation.” (emphasis ours)

Puzzling, because many of the “fair use industries” the report suggests would in some way be harmed by stopping the massive proliferation of online content theft include the people and organizations whose work and livelihoods are most at risk from that theft.  The version of CCIA’s report released last year, and we assume this one as well, counted the motion picture industry (that would be us) among the “fair use industries,” as well as independent artists, writers and performers; radio and TV broadcasters; software publishers; promoters of sporting events; and many others for whom copyrighted content is indispensable to their work.  (See Appendix I of the 2010 report.)  So what gives?
 
Here’s the real story.  Fair use and other recognized exceptions to the exclusive rights of copyright owners are important – but there’s an enormous difference between fair use and the blatant, massive, wholescale taking of intellectual property occurring online.  That isn’t fair use nor any other legally permitted use; it’s theft that robs the millions of people working in IP industries of jobs, retirement savings, and earnings to invest in future creations. 

It’s one thing to celebrate the clearly enormous contribution to the U.S. economy made both by those who create intellectual property and those who use it fairly as part of legitimate business models.  It’s another thing entirely to turn fair use into a red herring, obscuring the very real harm of content theft to our entire economy.

Ultimately, fair use depends on the availability of rich, creative, original content that is protected from infringement.  We welcome the support of the fair use industries – or should we say the other fair use industries? – as we work to pass legislation protecting from that theft the very same content on which they rely.

Emerging Artists Are Silenced by Content Theft

by Howard Gantman 07/08/2011 15:11 (UTC-08:00) Pacific Time (US & Canada)

Sobering op-ed today in The Oregonian by Concord Music Group President and CEO Glen A. Barros regarding the devastation wreaked on the emerging artist community by online content theft, and what’s being done to address it. 

It’s no secret that the music industry has suffered untold losses due to online music theft, and when record labels’ bottom lines began to reflect those losses, music executives faced tough choices to keep afloat.  Investing in emerging musicians became too risky as rampant online theft put a stranglehold on the industry. 

“It’s tough to justify the resources it takes to bring a new voice to the attention of the world – especially in less commercial genres such as jazz – when you lose so much of the potential return on that investment to those who ‘share’ music for free, all the while thinking that there's no victim,” Barros wrote.  “Aspiring young artists who don't get their chance are the real victims of music piracy.”

Barros signaled his optimism regarding the PROTECT IP Act, which now shares the bipartisan support of 25 U.S. Senators:

“In a time when partisanship seems at a polarizing level, it's incredibly encouraging that these senators, from both parties, are joining together in an effort to protect our creative future.”

Barros also took issue with Oregon Senator Ron Wyden for indicating his plans to block the bill’s passage:

“I would ask why [Wyden’s] primary concern is over a theoretical threat to innovation and economic growth when there's actual damage being done to innovation and our economy by these foreign-based websites. Quite simply, thieves have stifled our creative output and cost us real jobs for some time now.”

Barros drove his point home with the case study of Esperanza Spalding – winner of this year’s Grammy for best new artist – a talented jazz musician who overcame staggering obstacles to achieve a successful music career. Raised in a single-parent home with limited financial resources, Spalding worked hard to hone her talents and landed a record deal.

“We were so moved by her artistry that we took a chance.  And in this case, it worked.  Now she's winning Grammys, performing for the president, generating commerce and inspiring communities everywhere. Hers is a rare success story.

“What if we didn't take that chance on Esperanza Spalding? What if no one did?…While Protect IP is certainly not a panacea, it sure will help. And that's a good thing for that next kid from the other side of the tracks who has the potential to become tomorrow's best new artist. In fact, that's a good thing for all of us.”

All talented creators deserve a chance to be heard.  We stand with American workers in support of the PROTECT IP Act and all other legislation aimed to protect artists’ content from online theft.

L.A. Times Editorial Supports Partnership of Creative Community and ISPs to Address Online Theft

by Howard Gantman 07/08/2011 09:45 (UTC-08:00) Pacific Time (US & Canada)

The L.A. Times was spot on in an editorial today supporting the Copyright Alert System launched yesterday by ISPs and content owners.  Calling the plan “a fair compromise” and “a sensible way for copyright owners and ISPs to team up,” the piece complimented the creative community and ISPs for joining forces to address the serious issue of online theft.

The Copyright Alert System is above all an educational effort meant to let people know that illegitimate file transfers are occurring on their network, explain how it affects creative workers, and guide users to legal alternatives to access content like movies, TV shows and music.  

The editorial maintained that this approach “has the right focus, which is to educate broadband users about what's happening on their accounts, what constitutes copyright infringement and where to find legitimate sources of movies and music online.”

We are pleased to be working with our partners in the online ecosystem to address the problem of online content theft.  Together, we can make a real difference to the millions of men and women who work hard to create the American entertainment enjoyed all around the world.

PROTECT IP Act Now Counts A Quarter of the Senate as Cosponsors

by Kate Spence 07/08/2011 09:18 (UTC-08:00) Pacific Time (US & Canada)

Thanks to U.S. Senators Kelly Ayotte (R-NH), John Boozman (R-AR), Thad Cochran (R-MS), Dick Durbin (D-IL), Kay Hagan (D-NC), Joe Lieberman (I-CT), Jeanne Shaheen (D-NH), and Tom Udall (D-NM) for adding their names as co-sponsors of the PROTECT IP Act (S. 968), and for standing with the more than two million men and women whose livelihoods are threatened by film and television theft.  

Their willingness to join this fight brings the number of cosponsors of the PROTECT IP Act to 25 – fully one quarter of the Senate.  It’s a sign of the crucial importance of this legislation to jobs and local economies all across our country, and of the momentum building behind the effort to stop content theft.

For more about the PROTECT IP Act, visit our rogue websites page.


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