We Correct the Record on the PROTECT IP Act

by Alex Swartsel 08/16/2011 06:38 (UTC-08:00) Pacific Time (US & Canada)

Check out Michael O'Leary's column in Monday's The Epoch Times, responding to errors in a story last week on the PROTECT IP Act.  Contrary to suggestions in the article, Michael pointed out that the bill is very narrowly-tailored and includes strong due process protections.

Michael also argued that the Times missed the larger point:

The simple fact is that any business whose products are stolen is less able to invest in new products, new innovations, and new jobs. If film theft leads to fewer productions, that has a real effect on the economy and on employment for many, many people who work in the creative industries. And it also means fewer movies and TV shows for all of us to enjoy.

In the end, the purpose of the PROTECT IP Act and other efforts around the world to fight film and TV theft is to preserve our ability to make those films and TV shows in the first place. Losing that is too high a price to pay.

Click here to read the full piece.

“The Information that Wants to Be Free Always Belongs to Someone Else”

by Alex Swartsel 08/15/2011 09:51 (UTC-08:00) Pacific Time (US & Canada)

Robert Levine, the author and former Billboard executive editor, had two insightful articles published over the weekend, in The Guardian and Wired, exploring the interdependencies between the creators who produce information, art, and other content, and the people and platforms that distribute it online – and what that means for copyright. 

His bottom line is that generally, everybody who produces things of value – whether it’s the creators who make movies or music or TV shows or the engineers who write software and build technology that makes that content available more quickly – needs to be able to earn some kind of return on their work in order to keep doing it.  That’s finally the problem with the “information wants to be free” argument, about which Levine comments in both articles; in his words in Wired, “[t]he problem is that the cost of distributing information has very little to do with the cost of creating it.”

The labels and studios that invest millions in music and movies want to maintain a market for their products. But ISPs and technology companies know their own products will have more value if they can offer that content at a lower price, by tolerating piracy or using it as a bargaining chip to negotiate deals. On the internet, the information that wants to be free always belongs to someone else.

More along the same lines, from Levine’s piece in The Guardian:

It seems obvious, but an information economy needs a functioning market for information. Traditionally, that market was created by copyright, but those laws haven't been enforced effectively online. This helps companies such as YouTube build businesses on the backs of creative professionals.

Certainly, copyright laws need to be updated for the digital age. Many reformers say they favour protection, but view any attempt to enforce it as unacceptable. This doesn't make sense: a market can't be based on voluntary payments, and laws don't work if they can't be enforced. There needs to be some penalty for illegal downloading, although slowing the access speed of a lawbreaker makes more sense than cutting their account entirely. By the same token, why should internet users be allowed to access sites that clearly – and that last word is important – violate UK law? If the UK simply declines to enforce its laws online, it will leave many of its businesses vulnerable as the internet becomes more important to commerce in the years ahead.

As pressure builds to enforce copyright law online, technology companies and the activists they support have started to argue that any attempt to block pirate sites will "break the internet", as though it were an iPhone teetering on the edge of a table. The truth is that the internet is broken already: it's simply too chaotic to provide the infrastructure for a 21st-century economy. This has to change, before newspapers and film suffer declines like that of the music industry. Technology companies have long lectured creators on the need to adapt to a changing digital world. It would be a shame if they couldn't heed their own advice.

Both of Levine’s columns (online in The Guardian and Wired) are worth reading in full.

Stealing Isn’t Saving

by Alex Swartsel 08/12/2011 10:47 (UTC-08:00) Pacific Time (US & Canada)

The disappointing thing about Janko Roettgers’s post for GigaOm’s New TeeVee section yesterday is its casual promotion of the idea that stealing movies, TV shows and music is a perfectly acceptable way to save money. 

Roettgers writes at length about recent changes in online video offerings, but his real point is this:

“The U.S. credit ratings downgrade, tumbling stocks and international instability have made not just financial analysts nervous this week.  Consumers are also starting to wonder whether we’re about to enter another recession. Whenever that happens, people start to tighten their belts and cut unnecessary expenses — like paying for movies and TV shows. … With memories of the housing slump still fresh, many people could simply return to BitTorrent and download movies for free instead of going to the movies or paying for VOD.” (emphasis ours)

There’s no question that when people aren’t certain about their finances – because they’re worried they or someone in their family will lose their job, or the prices of gas or other essentials will rise significantly – they change how they think about expenses and spend money.  But if Roettgers had written that financially insecure families will shoplift clothes from a department store this fall to save on back-to-school costs for their children, he would be laughed out of the proverbial building, right?

T-shirts and jeans aren’t made out of zeroes and ones, at least not yet.  But just because movies and TV shows and songs can now be packaged and distributed as data, not just as film reels or vinyl records or DVDs, and can be acquired or distributed with a few clicks of a mouse, doesn’t mean that the labor and time and money that went into making them is any less meaningful. 

We doubt many people will subscribe to the kind of intellectual dishonesty that suggests that it’s fine – or really, that it’s inevitable – to steal as a way of saving.  But it’s troubling that by suggesting that stolen content available on rogue sites and elsewhere is just another substitute good, Roettgers is tacitly arguing that content theft is legitimate and socially acceptable.  Truth is, it’s neither. 

Zediva 'suspending' operations; many legal alternatives remain

by Ben Sheffner 08/11/2011 10:48 (UTC-08:00) Pacific Time (US & Canada)

Zediva, the unlicensed video-on-demand service that a federal court has determined violated the MPAA members’ copyrights, has announced that it is “suspending” its operations. Of course we welcome Zediva’s statement that it will begin complying with the law. But we also want to emphasize that there remain many legal alternatives for movie fans to watch movies over the Internet on their own schedule. As we said when the judge granted the studios’ motion for a preliminary injunction against Zediva on August 1, “Movie fans today have more on-demand options than ever for watching films at home, from iTunes to Netflix to Amazon to Vudu to Hulu to the VOD offerings from cable and satellite operators. All these legitimate companies have obtained licenses from the copyright owners.” We look forward to bringing our litigation against Zediva to a final conclusion, and to continuing to help foster a thriving marketplace where illegal operators can’t undermine legitimate businesses that play by the rules.

Leading Legal Firms to Help Copyright Alliance

by Jessica Garcia 08/09/2011 14:19 (UTC-08:00) Pacific Time (US & Canada)

Today the Copyright Alliance announced the formation of a new Legal Advisory Board to advance the work of the Alliance through a closer collaboration between the firms representing the Alliance’s institutional members and other copyright owners. With 14 founding members, the Board will support various new and ongoing initiatives including strengthening copyright strategy, the development of educational programs, expanding contacts with law schools and young lawyers, and legal research and writing about content theft and copyright.

Sandra Aistars, Executive Director of the Copyright Alliance, noted the importance of the partnership:

“This Board will be invaluable to the Copyright Alliance and its members. The Alliance has actively developed grassroots, public and educational programs. Closer engagement with colleagues and thought leaders in the legal community will bring an important new perspective and talent pool to the Alliance, and allow us to serve the needs of the creative community better. I am particularly pleased that these firms are helping launch this initiative. They have been a trusted source of legal guidance for many in the copyright world for years and we value their expertise.”

The establishment of the Legal Advisory Board is a step forward in efforts to protect artists and creators from copyright theft. Copyright protection is a complex and rapidly evolving sphere, and it will make an enormous difference for artists and creators to have the country’s brightest legal minds on their sides as they, and we, work to protect their creations. We welcome these experts’ willingness to contribute their knowledge to our endeavors to strengthen copyright protection for the millions of Americans in the creative community.

View the Copyright Alliance’s announcement here.

Categories: Copyright

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UK Government Supports the Creative Sector in Addressing Threat of Rogue Sites

by Chris Marcich 08/09/2011 11:01 (UTC-08:00) Pacific Time (US & Canada)

Recent developments in the United Kingdom show strong support for the creative sector in our work to prevent our creative content from theft.  In a series of announcements over the past week, the UK government clearly expressed its opinion that under existing law Internet Service Providers (ISPs) can, and should, block rogue sites that traffic in stolen content – a key and very encouraging step forward for the over 1 million people employed in the creative industries here.

A bit of background: at the center of these developments is a report by Ofcom, the independent regulator and competition authority for the UK communications industries, among whose responsibilities is the implementation of the UK’s Digital Economy Act of 2010 (DEA).  In “‘Site Blocking’ to reduce online copyright infringement,” Ofcom’s review of two sections of the law aimed at rogue sites (Sections 17 and 18), Ofcom addressed the technical issues associated with site blocking – and concluded that it is possible for ISPs to block sites and that there are a variety of options for how they might do so.

Importantly, however, Ofcom’s report also addressed the practical implications of achieving such blocking in a timely and cost-effective manner.  Taken together, Sections 17 and 18 of the DEA essentially state that Government can develop regulations allowing for injunctions blocking access to Internet sites if it chooses to do so in the future, subject to consultation and Parliamentary review.  The Secretary of State for Culture, Media and Sport, which oversees Ofcom, had asked the regulator to evaluate whether Sections 17 and 18 “provide an effective and appropriate method of generating lists of sites to be blocked.”

Compared with other, already existing mechanisms available to rights holders seeking to reduce the harm caused by rogue sites, Ofcom concluded that Sections 17 and 18 would actually work less effectively for rightsholders than other measures already in place.  Ofcom wrote: “Specifically, we do not think that using the DEA would sufficiently speed up the process of securing a blocking injunction, when compared to Section 97A of the UK’s Copyright Designs and Patents Act, which already provides a route to securing blocking injunctions. As a consequence we are skeptical as to whether copyright holders would make sufficient use of any new process.”

It is likely that, in coming to this important conclusion, Ofcom’s analysts were monitoring closely the progress of the case regarding Newzbin2, the site notorious for indexing and providing access to stolen movies, music, games, software and books.  Howard Gantman last week blogged about the groundbreaking judgment in that matter, in which Justice Arnold ordered BT, the UK’s largest ISP, to block access to Newzbin2.

That case is important here because it was, in effect, a test of content creators’ ability to use Section 97A of the CDPA to ask courts to require ISPs to block sites that clearly infringe copyrights.  Now, in the wake of Justice Arnold’s decision recognizing that courts can issue orders to prevent illegal activity online,  Ofcom is able to say with confidence that rights holders have an effective mechanism for addressing rogue sites under existing law, without needing to turn to the Digital Economy Act. 

This is a positive step forward for content creators, giving the creative community strong assurance that the government and the courts will not stand by while our work is stolen out from under us.  Though misleading comments have circulated that the upshot of the Ofcom report was a rejection of site blocking, that’s simply not the case.  We all know there are no miracle cures to stop content theft – but in its announcements last week, Government acknowledged that preventing access to rogue sites can go a long way.

The next step is to develop an expedited judicial process to allow rights holders targeted by rogue sites to utilize the provisions of Section 97a of CDPA, as in the Newzbin2 case, without the need for a protracted and expensive legal fight.  We will continue to work with UK Government on all the issues raised in this and other reports released this week, as well as with our partners in the creative industries.

U.S. Court Rules Rogue Website Didn’t Suffer Hardship When U.S. Government Seized Domain Name

by Howard Gantman 08/09/2011 08:56 (UTC-08:00) Pacific Time (US & Canada)

In an important ruling for creators, a federal judge has decided that the U.S. government does not have to return two domain names seized by Immigrations and Customs Enforcement (ICE) for facilitating massive content theft. 

Rojadirecta.com and Rojadirecta.org hosted links to live sporting events and other copyright-protected content; when those sites were seized, Spanish company Puerto 80 sued, arguing it would suffer hardship because fewer people would visit its sites, and claiming that its First Amendment rights had been violated.

Federal District Judge Paul Crotty rejected those claims.  Importantly, Judge Crotty pushed back on Puerto 80’s claims that “in seizing the domain names, the Government has suppressed the content in the ‘forums’ on its websites… The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous. Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate.”

This is important in the context of PROTECT IP, the U.S. Senate bill that would strengthen U.S. law enforcement’s power to go after foreign rogue websites that traffic in stolen American-made content. On one level, the Rojadirecta case demonstrates why we need PROTECT IP in the first place: shortly after Rojadirecta’s .com and .org domains were seized, the site popped up on domain names registered in other nations outside the reach of American law, and so remain accessible to American consumers. 

Judge Crotty’s ruling also echoes a key element of the PROTECT IP Act, which defines a rogue site as a site that “has no significant use other than engaging in, enabling, or facilitating the reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement … or is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” infringement (emphasis ours).  Judge Crotty essentially adopts this approach when he writes that Rojadirecta’s “main purpose” is to provide links to copyrighted content, not to provide a forum for discussion.

As Constitutional law expert Floyd Abrams wrote earlier this year, entities ‘dedicated to infringing activities’ are not engaging in speech that any civilized, let alone freedom-oriented, nation protects.  … [The PROTECT IP Act] does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.”  Judge Crotty’s decision reinforces that sound conclusion.

Rojadirecta will be back in court later this fall, and we’ll keep watching. 

On the Passing of Senator Mark Hatfield, a Man of Great Conscience

by Senator Chris Dodd 08/08/2011 16:12 (UTC-08:00) Pacific Time (US & Canada)

I was deeply saddened to learn of the passing of Mark Hatfield, a longtime colleague and friend, whose sincerity and strength of character should serve as a model for all Americans.  As I said on the Senate Floor in 1995 after he announced that he was retiring:  “For five terms, Senator Hatfield has elevated the caliber of this Chamber's debate, frequently taking lonely stands in the process. Voting one's conscience often requires courage. Senator Hatfield has never wavered in his devotion to what he believes is just, and he has always done right by the good people of Oregon.”

Quite frankly, Mark Hatfield was one of the greatest crusaders for peace in the Senate’s history.  He was a devout pacifist since the beginning of his political career, opposed President Johnson's Vietnam policy, and more than 20 years later was one of only two Republicans to vote against United States military involvement in the Persian Gulf. He opposed nuclear testing and an extensive military buildup, and authored the 1992 nuclear test ban law. He was also the sole Republican to vote against the balanced budget amendment, and he would have paid dearly for that stand had the concept of respect for one's conscience not prevailed. Until his retirement, Oregonians continually returned their Senator to office not only because of his righteousness, but also because of his commitment to them and their values

He was widely respected for his independence and well-liked for his loyal friendship.  He will be sorely missed.

Categories: MPAA Salutes, Policy

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