The first from TD:

Obama: We Must Move Forward On ACTA

With the EU Parliament soundly voting against ACTA secrecy and current proposals, lots of folks have been wondering how the US was going to respond. So far, it’s not looking good. The USTR gave a giant no comment, and President Obama (who had been pretty quiet on ACTA himself) addressed ACTA in a speech, where he expressed strong support for continuing to move forward with ACTA.

What was telling, however, was how he described ACTA — which is that he used the bogus arguments for what people think ACTA is about, rather than what’s actually in the agreement. It’s a political trick:

“There’s nothing wrong with other people using our technologies, we welcome it — we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately,” Obama said. “That’s why [the Office of the U.S. Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement.”

Except, of course, ACTA goes way, way, way beyond that. It’s disappointing that Obama, who keeps insisting he’s in favor of greater transparency in government seems to be ignoring the fact that the USTR has been anything but transparent on ACTA, and that

Read the rest of the article and commentary on TechDirt

and the second from TF:

President Obama Discusses Three Strikes Anti-Piracy Law

Hollywood lobbyists are trying to launch an assault on Internet providers and fast track tougher anti-piracy legislation in the United States. Ari Emanuel, the brother of White House Chief of Staff Rahm Emanuel, says the industry has been discussing these plans with President Obama outside of the public’s eye.

For years the entertainment industry has been lobbying for tougher measures against online piracy. In France this has resulted in the implementation of a ‘three strikes and you’re offline’ regime and many other countries are considering similar measures.

Thus far the United States Government has kept relatively quiet on this issue, but that doesn’t mean that such plans are not being discussed behind close doors.

According to Ari Emanuel, a famous Hollywood talent agent and the model for the character Ari Gold in the hit series Entourage, Hollywood lobbyists are working hard to convince President Obama and others to ram through similar legislation in the United States.

“We are in the midst of talking to the president and some attorney generals and [we are] trying to implement a three strikes and you’re out rule,” Emanuel said, while adding that this issue would most likely result in a “fight with ISPs”.

At this point it is impossible to assess the exact nature of these talks, but since Ari Emanuel is the brother of White House Chief of Staff Rahm Emanuel, there is no doubt that these talks are taken seriously. President Obama, who vouched to decrease the power of lobbyists in Washington, is not turning a deaf ear to this one for now.

Before even considering the implementation of a three-strikes model, United States lawmakers might want to…

Read the rest of the article on Torrent Freak

Discussed behind closed doors… land of the free… democracy… for the people – someones forgotten a lot of things and what they mean.

Plenty of sources so we are not going to bore you with what we think (as we covered it a bit earlier as well) but needless to say, we are happy. We are always happy when the artist wins against  scumbags.

Lets start with Ars:

Court nixes individual track downloads of Pink Floyd albums
Individual Pink Floyd songs will soon disappear from online music stores. The British High Court has ruled against EMI, the band’s record label, saying that the band’s contract requires EMI to “preserve the artistic integrity of the albums.” In this case, that means keeping all the tracks together and in the order they were meant to be in, leading some to worry whether Pink Floyd’s music will disappear from popular online music stores altogether.

When Pink Floyd signed with EMI back in the late ’60s, its members probably did not imagine an age when we would be ditching physical media en masse in favor of cherry-picked songs on a series of Internet tubes. It’s unsurprising then that the contract stipulated for the label to maintain the artistic integrity of the album itself—back then (and today as well, but perhaps to a lesser degree), musicians spent painstaking amounts of time crafting the entire album as a whole artwork. Those who only listened to select tracks were totally missing out.

Indeed, as EMI has discovered, that still appears to be the case, at least when it comes to Pink Floyd. The High Court ordered EMI to pay £40,000 in court costs with the possibility of future damages and EMI may have to pull Pink Floyd’s individual offerings from places like the iTunes Store and Amazon MP3. (As of this writing, the albums with per-track purchases were still available. Get ‘em while they’re hot.) In addition, EMI must pay Pink Floyd an undisclosed amount in royalty payments.

This doesn’t mean they…

Read the rest of the article on Ars

Tech Dirt:

Because Only The Record Labels Are Supposed To Get Away With Not Paying Their Musicians…

So lots of people have been submitting versions of the story about how Pink Floyd is suing EMI, claiming that EMI isn’t paying the band what it owes for iTunes downloads. I’d avoided posting this, because it’s basically the same contractual dispute we’ve seen from other acts, where they claim that their labels are accounting for iTunes downloads improperly in order to avoid paying the bands. This story is as old as the recording industry itself. The labels have always worked hard to avoid actually paying bands anything.

But what made it worth mentioning is that the lawsuit has come out at just about the same time that the record labels are now hilariously trying to claim that radio stations are “pigs” who refuse to pay musicians. In one of the more juvenile pranks out there, a lobbying group supported by the labels is going around with a giant inflatable pig, mocking radio stations for “refusing to pay musicians for their work .”

You would think that the record labels would be smart enough to avoid making an argument that could so easily be turned against them. How about before you go blame the radio stations for not paying the labels to promote your acts, you start out by

Check out the rest of the article at TD, along with some great commentary as well as informative links.

Wired:

Pink Floyd Beats EMI in Creativity Flap

Pink Floyd prevailed Thursday in a legal brawl with its label when a British judge ordered EMI to stop selling individual downloads of the acid-inspired group’s songs without permission.

The artists behind The Dark Side of the Moon and The Wall, and other top sellers claimed its decade-old contract with EMI required the band’s music to be sold as an entire album, not as single tracks in which EMI has permitted iTunes to distribute.

High Court of Justice Judge Andrew Morritt of London agreed, ruling the 1999 agreement with EMI was crafted to “preserve the artistic integrity of the albums.”

Pink Floyd said its musical craft surrounding concept albums was being misrepresented when sold in singles. EMI claimed…

Read More

The Australian:

High Court victory gives Pink Floyd right to block EMI on singles sales
BRITAIN Pink Floyd

PINK Floyd has won a High Court battle with EMI preventing the company from selling album songs as individual tracks.

The band, which signed up with EMI in 1967, also challenged its record label over the level of royalties paid for songs sold online, but that matter remains unresolved.

Lawyers in London said that other bands might be examining their contracts to see if they can use similar clauses to regain control of the sale of their music.

The ruling is a further blow for EMI, which lost its chief executive on Tuesday amid suggestions that bands including Pink Floyd and Queen were considering leaving the company.

EMI has suffered strained relations with its artists since it was bought in 2007 by Terra Firma, the private equity group run by Guy Hands. Sir Paul McCartney, the Rolling Stones and Radiohead have all quit since the takeover.

Pink Floyd have sold more than 200 million albums during their career and have been one of the company’s most lucrative acts.

Sir Andrew Morritt, Chancellor of the United Kingdom’s High Court, accepted the group’s arguments that EMI was bound by a contract stipulating that written consent was necessary for the sale of its material as anything other than complete albums.

The dispute centred on a line in the contract stating, “there are no rights to sell any or all of the records as single records, other than with (Pink Floyd’s) permission”.

EMI claimed that this applied only to physical copies of songs, but the band argued successfully that it also applied to songs sold online.

The judge said the purpose of a clause in the contract was to “preserve the artistic integrity of the albums”.

However, Pink Floyd’s music will continue to be sold as singles until other disputes between the band and EMI are resolved.

Peter Jenner, who managed the

Read the rest at The Australian

UK ISPs: Site Blocking Risks Country’s Reputation

Join consumer advocates, MPs, prominent academics, and others in an open letter to the House of Lords criticizing recent proposal to amend the Digital Economy Bill in order force ISPs to proactively block websites suspected of copyright infringement.

A number of UK ISPs have joined forces with consumer advocacy groups, prominent academics, filmmakers, actors, and even websites eBay, Facebook, Yahoo, and Google to forge an open letter to the House of Lords criticizing the recent proposal to amend the Digital Economy Bill.

Amendment 120a, as written, would use the threat of “injunctions” against those ISPs that have “actual knowledge of another person using their service to infringe copyright,” but has failed to “prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both).”

What it doesn’t spell out is exactly how ISPs are supposed to verify claims of copyright infringement (a new ISP detective bureau?) or the means of appeal. Some site operators may be falsely accused of copyright infringement and subsequently erroneously sanctioned by their ISP.

It’s already been observed that it would cause a “chilling effect” on the Internet, but these signatories add that it would “have unintended consequences that far outweigh any benefits it could bring.”

“Put simply, blocking access as envisaged by this clause would both widely disrupt the internet in the UK and elsewhere and threaten freedom of speech and the open internet, without reducing copyright infringement as intended,” they add.

In fact, they argue that the amendment threatens the “reputation of the UK as a place to do online business and conflict(s) with the..

Read the rest of the article at ZeroPaid.

It amazes me how in the UK they don’t even try to cover the corruption.

Way to go Britain in finding totally neutral parties to do the job for you, for standing up for the people who put you in power rather than tiny special interest groups.

From Boing Boing:

Leaked documents: UK record industry wrote web-censorship amendment

Last week, the UK LibDem party was thrown into scandal when two of its Lords proposed an amendment to the Digital Economy Bill that would allow for national web-censorship, particularly aimed at “web-lockers” like Google Docs and YouSendIt. Now a leaked document from the British Phonographic Institute suggests that the amendment was basically written by the record industry lobby and entered into law on their behalf by representatives of the “party of liberty.”

This weekend, LibDem members who attend the national convention in Birmingham will have the chance to vote on an emergency measure affirming the party’s commitment to an open and just Internet, repudiating this disastrous measure. If you (or someone you know) is attending the convention, please support the “Save the Net” emergency measure and help rehabilitate the party’s reputation on fundamental freedoms in the information society.

Parliamentarians need to recognize that copyright touches everyone and every technology in the digital age. It is no longer a question of inter-business regulation and deals. Getting copyright wrong has the potential to mess up our freedom of speech, prevent us from getting the benefits of new technologies, and damage society in other very profound ways.

It is therefore deeply inappropriate for such fundamental proposals to have been introduced by both the government or the…

Read the rest of the article at Boing Boing

Related link ORG

Another Reason To Worry About DMCA Takedowns: Collateral Damage

In the wake of the DMCA takedown notice that forced Cryptome offline, the EFF is pointing out yet another massive in with the DMCA’s notice-and-takedown setup: it leads to a ton of collateral damage in getting legitimate, authorized, non-infringing content blocked by overzealous takedowns. Obviously, there are lots of cases of false takedowns or where there’s a fair use argument — but even if we assume that (in this example) Microsoft’s DMCA was justified, the fact that the entire site got forced offline should be seen as a major problem with the DMCA:

This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome’s beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn’t willing to take that small risk, a whole lot of speech was temporarily disappeared.

As the EFF notes, this happens because the notice and takedown process lets copyright holders go after “the weak link” by moving further and further upstream to find a player in the chain who will take down the content, even if it means taking down much more:

Copyright owners reach out to a “weak link,” the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit–even if the service provider knows it will win–is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of “innocent bystander” customers.

The EFF also follows this up with a list of…

Read the rest of the article on TechDirt, also dont forget to check out our other recent (and related) post on the DMCA.

Related article from the EFF:

The Weakest Link Redux

We often criticize DMCA takedown abuse here at EFF, but last week’s Cryptome snafu highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material.

To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome refused explaining that the document was posted in order to help the public better understand Microsoft’s practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the entire Cryptome website. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome.

This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome’s beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn’t willing to take that small risk, a whole lot of speech was temporarily disappeared.

We’ve recently seen the same scenario with music bloggers, who may have their entire sites taken down as a result of complaints about a few links to music they’re reviewing.

And sometimes it’s not even enough to find a courageous hosting provider. Last year a takedown notice targeting a single site parodying the U.S. Chamber of Commerce resulted in a takedown of the websites of over 300 activist organizations hosted by MayFirst/PeopleLink. The Chamber of Commerce went “upstream,” targeting one of MayFirst’s upstream service providers, Hurricane Electric. When MayFirst pushed back, Hurricane shut off service, thus pulling the plug on unrelated websites, email and other online tools.

In all of these cases, copyright owners reach out to a “weak link,” the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of “innocent bystander” customers.

This unfortunate outcome is particularly ironic because Congress gave service providers protections in the DMCA. Service providers who care about free speech have better options:

* Remember, if your only relationship to the material targeted is that you provide connectivity to a downstream service, you should qualify for the 512(a) safe harbor, and, therefore don’t have an obligation to take the material down.
* Remember also that you don’t need the safe harbor if the material is a non-infringing fair use. In clear cases, you can bypass DMCA procedures.
* If thinking about fair use doesn’t make business sense, or you’re not sure, keep in mind that the DMCA requires only that you act “expeditiously” to respond to a takedown notice. Courts have found that providers should take down material within a few days of receiving a notice. So if you realize complying with a takedown notice will result in taking down much more material than the notice identifies, take the time to notify the person who sent the notice about the collateral damage it may cause. They may elect to withdraw it, especially where they are likely to face public criticism for causing an overbroad takedown.
* Give your customer a chance to re-jigger their service to avoid such collateral damage.
* Be sure to offer customers a clear counter-notice procedure—the DMCA provides protection for service providers that restore content in response to counter-notices.

Customers who also care about…

Read the rest of the article on the EFF site, if the above article interested you we strongly suggest you check out the original article as it is filled with useful links.

And another article from TD that illustrates exactly how screwed up current copyright law is:

How Does Copyright Apply To Your Kids’ Monster Drawings?

Justin Levine has an interesting blog post up about a book I hadn’t heard of, called The Monster Engine. The author, Dave Devries, took children’s drawings of monsters, and turned them into paintings that use the identical line structure of the kid’s drawings (he projects them on the wall and then draws over them). Apparently, Devries’ work is quite popular, and people have talked about it on the internet for years:
Seems pretty cool. But Levine is wondering about the copyright issues involved in all of this:

Given the fact that:

1. There is no doubt that the children’s original doodles are protected by copyright for their entire life, plus 70 additional years.

2. There is no doubt that Devries’ paintings of the doodles are ‘derivative works’ stemming from the original creations of the children.

Do you believe that Devries should be forced to get formal copyright releases from each and every one of the kids in question? Do you think he has done so? If so, should they be able to repudiate their copyright agreement when they turn 18 since many jurisdictions allow minors to repudiate contracts signed before they reach 18? If so, should they be able to take Devries’s work out of circulation?

Do you think that the children should all share in the royalties from books, art and showcases that Devries produces for the rest of their lives (and beyond – for 7 decades)? Do you think that is in fact the case of what is going on? If Devries hasn’t gotten a copyright release and/or isn’t paying royalties, do you feel that he is somehow “exploiting” these kids or “stealing” from them?

These are pretty serious questions — because under copyright law today, this book is trouble, and that’s unfortunate, because it looks like a lovely book. My guess would be that Devries actually had to get permission from…

Read the rest of the article on TD

Related article to the article on TD:

Questions and Challenges For Defenders of the Current Copyright Regime
Take a look at some the great works of Dave Devries from his “Monster Engine” project.

Given the fact that:

1. There is no doubt that the children’s original doodles are protected by copyright for their entire life, plus 70 additional years.

2. There is no doubt that Devries’ paintings of the doodles are ‘derivative works’ stemming from the original creations of the children.

Do you believe that Devries should be forced to get formal copyright releases from each and every one of the kids in question? Do you think he has done so? If so, should they be able to repudiate their copyright agreement when they turn 18 since many jurisdictions allow minors to repudiate contracts signed before they reach 18? If so, should they be able to take Devries’s work out of circulation?

Do you think that the children should all share in the royalties from books, art and showcases that Devries produces for the rest of their lives (and beyond – for 7 decades)? Do you think that is in fact the case of what is going on? If Devries hasn’t gotten a copyright release and/or isn’t paying royalties, do you feel that he is somehow “exploiting” these kids or “stealing” from them?

If you answered ‘No’ to any of these questions, why not? Given how we know copyright law operates with respect to works created by media corporations, shouldn’t it apply similarly here? Or is copyright law only supposed to be for the “benefit” of authors when they are attached to big businesses backed by the legal system?

After all, some commenters on this site have argued that one should not be able to make an entirely new James Bond film without permission due to copyright restrictions. I presume that The Monster Engine should be forced to jump through the same legal hoops, no?

I can’t help but suspect that there is some major hypocrisy at work here in how copyright law is selectively applied in…

Read the rest of the article here which further links to: here (don’t forget to check out these cool drawings!)

We responded by sending two of our reps into the EU Parliament.

Sounds like we are at stage three of “First they ignore you, then they laugh at you, then they fight you… then you win” - typical of big content they chose to fight in an underhanded/dirty way using corruption in a foreign government (Sweden) to suppress the choice of the people for their own selfish longings and greed.

.. but on to the article from TF :

Pirate Bay Court Appeal Set For Just After General Election

The four individuals convicted in The Pirate Bay trial have a preliminary date for their appeals. Fredrik Neij, Gottfrid Svartholm, Peter Sunde and Carl Lundstrom will head to the Court of Appeal on 28 September. This date is already being claimed as politically motivated, falling as it does just after Sweden’s parliamentary elections.

tpbIn April 2009, all four defendants in the Pirate Bay trial were found guilty and sentenced to one year in prison and a fines of $905,000 each. The defense didn’t accept the decision, and went on to file for an appeal.

Their appeal is now expected to head to the Court of Appeal on 28 September 2010. Nine days have been allocated in all, and the last is due on 15 October.

The dates are not fixed in stone and could be changed if the plaintiffs or defendants have any objections, which even at this early stage seems to be the case.

Peter Sunde has already taken note that the provisional date is penciled-in for after the Swedish parliamentary elections which take place on 19 September 2010.

Sunde says that the four are only available for an appeal before the elections, commenting: “Who said this case is NOT political?”

If the appeal was heard before the elections, there would be..

Read the rest of the article at Torrent Freak.

“Sorry, There’s No Silver Bullet Business Model For The Music Industry”

personally, we are just surprised that there are no bullets (silver or not) flying towards the music industry and the RIAA in particular for their horrible behavior these past 5-10 years.

Personally we think a couple of silver bullets through the heads of the dinosaurs running the major labels would be a start.. but hey, who listens to us?

On to the article:

Sorry, There’s No Silver Bullet Business Model For The Music Industry

Forrester analyst Mark Mulligan believes that the problem for the recording industry is one of demographics. Mulligan uses the fact that the billionth application purchaser on iTunes, 13 year-old Connor Mulcahey, was much younger than the 10 billionth iTunes music purchaser, 71 year-old Louie Sulcer, to highlight the issue: older users may still pay for music tracks, but younger users are more likely to “part with their cash” for apps than for music. To Mulligan, the problem is with the current digital-music product itself. Thus, he prescribes a feature-rich app as the savior — and the future — of the music industry. He proposes a music application that wraps digital tracks with social networking, live on-demand footage, song lyrics, games, and forums. This sounds like an interesting idea, which could see some success (if well-executed), but if the music industry is seeking a “silver bullet” business model, this is not likely to be it.

It’s pretty well understood that what has driven the recording industry for decades now is “format change,” where the record companies have continually asked their customers to essentially re-buy their recordings each time a new format is adopted — from records, to cassettes, to CDs. With each new technology, customers were compelled to buy the products not by legislature or law, but rather, by a continual desire to have their music be more accessible. First, the phonograph made music more affordable and accessible, as compared to hiring a band of musicians to come and play in your living room. In the 80s, the cassette tape made listening more portable, albeit with a loss in audio quality. Then, in the 90s, the CD combined both portability and high audio quality into one small package, leading to a huge up-swell in recording purchases. For years, the recording industry has had a fantastic, well-defined business model: Record music that people want to hear on physical media. Sell that media. Repeat. Then, the 00s brought the latest maturation of the recording format, the mp3, with its near-infinite portability and an audio quality that can only really be contested by audio snobs. Since it could be easily copied and used in many different devices, it had the opportunity to become the most widely used music format ever. But, because of its near-infinite portability, the recording industry’s old tried-and-true business model of selling physical media was no longer as viable.

The evolution of recording formats shows that what has really driven the industry has been a hunger for increased accessibility and portability, not necessarily the introduction of new features. So, while Mulligan’s music application idea may drive some interest in recoded music, by empowering the audience to do more with it, it is very unlikely to drive the type of purchasing behavior that, in the past, came with each new recording format — and it certainly won’t “save recorded music.” The problem is that…

Read the rest of the article at TechDirt.

Related article: PaidContent

The Music Industry’s Demographics Problem

Apple (NSDQ: AAPL) just announced the 10 billionth iTunes music download sale. An impressive statistic for sure, but not the end of the story.

As Apple often does with download milestones, it gave a prize to the 10 billionth download customer and revealed that the song downloaded was Guess Things Happen That Way by Johnny Cash, a song that dates back to 1958. Given that fans of country music skew older than most music fans (nearly two thirds are over 45), it’s interesting to note the age of the downloader of the billionth app: Connor Mulcahey is 13.

Apple’s music and app stores straddle paid content’s demographic fault line. Apps, a fundamentally interactive experience, are tailor-made for the digital natives, whereas the static 99-cent music download remains wedded to a bygone era. Of course, the kids still like music, but the current digital-music product doesn’t compel them to part with their cash in the way an app does. The simple fact is that apps have far greater monetary value for youth than music does.

Music product innovation is the music industry’s way into the app store. The CD generation still values music, but those customers are becoming the foundation of music sales just when they should be making way for the next generation of music buyers. Indeed, three-quarters of digital music buyers are age 25 and older. So while it’s good news for Apple that it has discovered a way to monetize youth, it does little to help music sales.

Which is the reason why the music industry needs to start a period of unprecedented product innovation, whereby apps become a key…

Read the rest of the article at Paid Content

News like this makes us proud to be in Europe, and proud to have voted for the Pirate Party thus putting two of our reps in Parliament.

Three stories, two trom TD and one from BB, starting first with TD:

EU Politicians Get Serious Demanding ACTA Transparency And No Three Strikes

Last week, there were reports that the EU trade policy folks had decided to stand up for ACTA transparency, and now it looks like they’re really doing it. As various reports are noting, a joint resolution was put forth by nearly all party groups in the EU Parliament demanding that ACTA negotiations be opened up. It also goes further, demanding that there be a ban on imposing “three strikes” laws included as well and a promise that ACTA will not impose personal searches at the border. This is tremendous news, and if this gets approved, it could reshape ACTA in a positive way. But, of course, let’s see how the US reacts. While repeatedly insisting that it wasn’t the US that was trying to keep negotiations secret, at this point, it looks like the only countries that are actively…

Read the rest of the article at Techdirt

And a bit later better news from BoingBoing

EU Parliament votes 663-13 against ACTA’s enforcement measures

The European Parliament resoundingly voted against the secret Anti-Counterfeiting Trade Agreement (ACTA), in a resounding 663 to 13 tally. The parliamentarians defied the EU executive and threatened to take the issue to the European Court of Justice if the EU doesn’t reject ACTA’s provisions on disconnection for infringement and other enforcement provisions.

A strong majority of MEPs (663 against and 13 in favour) today voted against the Anti-Counterfeiting Trade Agreement (ACTA), arguing that it flouts agreed EU laws on counterfeiting and piracy online.

In addition, the Parliament’s decision today states that MEPs will go to the Court of Justice if the EU does not reject ACTA rules, including cutting off users from the Internet “gradually” if caught stealing content.

Though MEPs cannot participate in the..

Read the rest of the article at BoingBoing

Also covered by TD

Overwhelming Majority Of EU Parliament Votes Against ACTA

Wasn’t expecting such a lopsided result, but EU Parliament voted 663 to 13 against ACTA, saying that “it flouts agreed EU laws on counterfeiting and piracy online.” Beyond that, apparently the Parliament is ready to go to court to stop EU negotiators from continuing down the path they’re on:

MEPs will go to the Court of Justice if the EU does not reject ACTA rules, including cutting off users from the Internet “gradually” if caught stealing content.

Some Members of Parliament are also pointing out that the EU negotiators are violating the Lisbon Treaty, which says that EU Parliament Members should have “full and immediate access at all stages of international negotiations.”

This is pretty big — and a massive setback for…

Read the rest of the article at Techdirt.

Related article Euractiv:

Parliament threatens court action on anti-piracy treaty

The European Parliament defied the EU executive today (10 March), casting a vote against an agreement between the EU, the US and other major powers on combating online piracy and threatening to take legal action at the European Court of Justice.

A strong majority of MEPs (663 against and 13 in favour) today voted against the Anti-Counterfeiting Trade Agreement (ACTA), arguing that it flouts agreed EU laws on counterfeiting and piracy online.

In addition, the Parliament’s decision today states that MEPs will go to the Court of Justice if the EU does not reject ACTA rules, including cutting off users from the Internet “gradually” if caught stealing content.

Though MEPs cannot participate in the ACTA talks, without the consent of the European Parliament, EU negotiators will have to go back to the drawing board and come up with a compromise.

Four MEPs from across national and party lines – Alexander Alvaro, Stavros Lambrinidis, Zuzana Roithova and Françoise Castex, dubbed the four ACTA musketeers – have launched a petition against the agreement, which has collected 31 signatures so far.

NGOs, academics and trade bodies that have studied leaks from the trade talks say the agreement would pave the way for network providers to introduce “US-style draconian” ways to penalise piracy.

ACTA leaks have shown that the agreement would not introduce a so-called ‘three strikes’ rule – cutting off users from networks after three attempts at piracy – but would allow Internet Service Providers (ISPs) to introduce other measures, provided the consumer is informed of the penalties in the contract, argues La Quadrature du Net.

EuroISPA, the Brussels trade body for network providers, says that recent leaks from the European Council indicate the EU is considering US proposals on combating piracy which include “criminal sanctions, US-style notice and take-down and monitoring of a user’s Internet traffic and services”.

Though EU Trade Commissioner Karel de Gucht reassured MEPs at a debate yesterday that the EU was not considering all of the measures in the ACTA text, EuroISPA argues this contradicts the most recent leaks coming from the EU and the US.

“The Commission has provided no reassurance that it will not introduce the penalties outlined in the ACTA leaks,” Andrea d’Inneco from EuroISPA told EurActiv.

Commission officials participating in the talks have signed a non-disclosure agreement and have been reluctant to divulge much information from the talks.

A high-ranking official told EurActiv that…

Read the rest of the article on EurActiv.

Update from Wired:

European Parliament Rips Global IP Accord

The European Parliament delivered a political blow to Hollywood and the Obama administration, voting Wednesday 663 to 13 in opposition to a proposed and secret intellectual property agreement being negotiated by the European Union, United States and a handful of others.

Wednesday’s developments concerning the Anti-Counterfeiting and Trade Agreement are substantial because the European Union’s 27 countries vastly outnumber the remaining countries negotiating the deal. They are Australia, Canada, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. Ambassador Ron Kirk, the top U.S. trade official, is spearheading the deal that began being crafted under the George W. Bush administration.

Kirk’s office declined comment.

To be sure, there is a dispute and heavy confusion concerning whether internet service providers under ACTA would be forced to punish customers deemed copyright scofflaws by reducing or eliminating service, according to a string of leaked documents. So parliament members also agreed Wednesday to oppose the measure if it contains so-called “three strikes” or “graduated response” policies — regardless of whether that’s now in the text.

And because of the text’s secrecy, parliament on Wednesday also demanded (.pdf) that the private agreement still under negotiation be publicly released.

Whether parliament’s action scuttles ACTA is another matter.

Michael Geist, a law professor at the University of Ottawa, said in a telephone interview that Wednesday’s resolution also OKs more ACTA global negotiations on behalf of the European Union.

Geist said he expects Europe to participate in the next round of ACTA negotiations to get underway April 12 in New Zealand.

European Union leaks months ago portended Wednesday’s vote.

The leaks underscored that European officials were concerned about the ever-changing pact and were unhappy that the United States’ “overarching objective” was to “facilitate the continued development of industry.” European drafters had said the document needed to “mention culture and individual creators and not only industry.”

In November, meanwhile, the…

Read More Wired.

RealNetworks just screwed us all by settling lawsuits in which it might have lost–but which might also have given some new life to fair use for digital media.

The post-RealDVD world means that unless there’s a major change to the law surrounding copy protection, there will never be a legal way to perform legal acts of copying or shifting protected movies, music, and games.

Take it from a guy who has a special E Ticket. The major movie studios can never sue me nor four other individuals ever for a variety of media-moving activities that you and 300 million other Americans could be subject to. It’s like a superpower. More on how we got this pass later.

The suits in question revolve around RealDVD, software Real introduced in September 2008 that would copy the full contents of a video DVD to a file that could be played back on a Windows system. RealDVD is not a DVD ripper: those programs use one of many methods to strip the Content Scramble System (CSS), the DRM that wraps up DVD content, and other defensive techniques.

CSS and its ilk aren’t precisely defended by technology–the standards are too weak or poorly executed–but by law. The much-excoriated Digital Millennium Copyright Act (DMCA) prohibits “circumvention” of software that’s designed to prevent copying. Breaking DRM encryption breaks the law.

But Real went through the steps to obtain a license from the DVD Copy Control Association (DCCA), which controls CSS on behalf of the movie industry. RealDVD decrypted the DVD, copied it, and then locked it tight. Up to five PCs licensed by the same person could play back the discs. (Real also broke through a couple of unrelated protection efforts.)

RealNetworks must have calculated that as a company with a large war chest, it could succeed where others didn’t dare to tread. As soon as it released RealDVD, it preemptively sued the DCCA and several studios to establish that it had the right to use CSS in the way RealDVD did. The studios and DCCA sued in return, and got software sales halted. The studios won in August 2009; Real appealed.

The settlement on Monday clears all the suits by RealNetworks agreeing to never sell the software again, refund the money to about 2,700 RealDVD purchasers, disable an associated metadata service, and pay $4.5 million to several movie studios, its Rhapsody partner Viacom, and the DCCA to cover legal and other expenses.

Some people may truly hate RealNetworks for its mediocre RealPlayer software (once a technical miracle) that was bundled with poorly disclosed third-party adware programs. But RealDVD was a thin blade trying to shimmy open the door of fair use.

Fair use is a maddeningly ambiguous set of rules enshrined in copyright law that mention nothing whatsoever about personal use and copying. Court decisions have shaped fair-use exemptions to copyright laws. Congress has passed extremely narrow copyright exclusions for personal use as well.

Without testing specific ideas about fair use or copyright scope in court, there’s no sure way to know whether your particular software program, Web site, tweet, or steampunk-based laser decrypter isn’t in violation. When the MPAA or a studio sues you, you could potentially plow through millions of dollars with no idea of the outcome.

You can always be sued, but you want to make sure that you have some basis on which to defend yourself, especially if the law and court decisions firmly back you up.

As BoingBoing recently reported about its battle with MagicJack, a group without crazily deep pockets can win and recover costs when it has a strong idea it is in the right. (BoingBoing benefitted from the California strategic lawsuit against public participation or SLAPP, which wouldn’t apply to software and hardware.)

That what was made the RealDVD suits so exciting, because Real has hundreds of millions of dollars in the bank, and had a pugnacious CEO, Rob Glaser. Glaser faced down Microsoft over unfair competition and got nearly $800 million from the Windows maker. (Glaser was forced out as head of Real a few weeks ago, although he intended to move on after an executive search; he remains chairman of the board and owns nearly 40 percent of the firm.)

Even better, Real wasn’t promoting piracy, or the broad right to rip DVDs into an unprotected format and then move them onto all kinds of devices for playback. RealDVD was very very narrow in purpose: can individuals buy software that converts one kind of protected content on a specific physical medium into another, with even stronger encryption?

Back in 2002, I joined a model lawsuit brought by the Electronic Frontier Foundation, what became known as Newmark v Turner (after Craig Newmark of craigslist, one of four other co-plaintiffs). The EFF wanted Newmark v to be joined to a lawsuit originated in 2001 by 28 movie studios, TV production firms, and cable operators against SonicBlue, which made ReplayTV, a digital video recorder that was at one point mildly superior to TiVo.

You may recall the ReplayTV suit, which begat the statement in a magazine interview from then chief executive of Turner Broadcasting that skipping ads was “theft,” and that not watching ads was breaking a contract. He said, “There’s a certain amount of tolerance for going to the bathroom.” The industry later tried to backpedal from these statements.

Our suit was a way to try to establish that consumers had rights in this fight among firms: that time-shifting (recording for later consumption) and space-shifting (moving among devices under our control for personal use) were perfectly acceptable, and that we were in danger of losing such rights. Ad skipping was also part of the suit.

Remarkably, a judge agreed to join us in the fight, to the surprise, we think, of the 28 media firms. That would have been ugly had we gone to trial. We faced some potential (though unlikely) penalties were it to be proved that we had violated copyright in our efforts to establish we had used media fairly.

The media firms had a big problem, though, in that it would have been an ugly public-relations battle to try to paint Craig Newmark, your humble reporter, and three other mild-mannered individuals as horrible scofflaws.

Had we won, we would have enshrined a judicial opinion that would have perhaps emboldened consumer-electronics firms and software makers to create products that put much more control over recorded programs in the hands of consumers.

Instead, SonicBlue went bankrupt and sold its assets to another firm that removed the features in question in 2003. The media firms then dismissed its lawsuit against the companies involved.

Here’s where it gets interesting. I had completely forgotten until researching the case to write this editorial that the 28 firms gave Craig, me, and our three fellow plaintiffs a “covenant not to sue” for the acts in question. That essentially nullified the suit because we had no more fear of litigation. (The EFF tried to get the same rights for all ReplayTV owners, just 5,000 people, but failed when the judge wouldn’t move the case into class-action status.)

So we are copyright superheroes, with the ability to advance ads in a single click, shift content among hardware, and watch at our leisure! Behold us, and despair, for you will not see our like again.

RealNetworks needs to work with studios, so it settled and paid less than 1 percent of its still-giant cash horde–last year, the company’s cash was of greater value than its market capitalization for several months–to be able to move forward on content licensing.

I can understand why they did it, but it resembles the Google Book Settlement, a massive effort by Google to get a special judicial and settlement right to not be sued for selling works to which the owner cannot be found and to which it does not have assigned rights (so-called orphan works).

If Google succeeds, then no other firm will…

read the rest of the article on BB

From TD:

A Look At Twelve Years Of Dangerous Unintended Consequences From The DMCA

The DMCA has been in place for a dozen years now, and the harm done by its provisions has become quite clear. The framers of the DMCA did not take into account the unintended consequences of the law — and even one of the main authors of the law, Bruce Lehman, now admits it was a mistake (though, as far as we know, he still hasn’t apologized to James Boyle, who accurately predicted many of unintended consequences of the DMCA, only to have Lehman threaten to “rip his throat out” and to get Boyle denied tenure). So, twelve years in, the EFF has put out a document highlighting all of the dangerous unintended consequences of the DMCA:

* The DMCA Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten’s team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.
* The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the movie industry’s use of encryption on DVDs has curtailed consumers’ ability to make legitimate, personal-use copies of movies they have purchased.
* The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple has used the DMCA to tie its iPhone and iPod devices to Apple’s own software and services.
* The DMCA Interferes with Computer Intrusion Laws.
Further, the DMCA has been misused as a general-purpose prohibition on computer network access, a task for which it was not designed and to which it is ill-suited. For example, a disgruntled employer used the DMCA against a former contractor for simply connecting to the company’s computer system through a virtual private network (“VPN”).

Clearly, it’s long been time to rethink the…

Read the rest of the story as well as commentary on TD