With the official blockade of access to The Pirate Bay in the UK, combined with the UK Pirate Party’s decision to set up a proxy for users, it appears that the UK Pirate Party’s website is rocketing up the traffic charts. Given the growing success of The Pirate Party in parts of Europe, it makes you wonder if each of these bans isn’t turning into the best (free) advertising The Pirate Party could ever get.

While many people assume that The Pirate Bay and the Pirate Party are connected, they are entirely separate (and the people behind them don’t always agree with or support each other). However, they certainly do agree on a few key points, and when TPB comes under attack under questionable circumstances, the Pirate Parties seem quite willing to step up and help.

It will be interesting, then, to see if the negative reaction to the censorship plan in the UK actually turns into useful action in the polling place. The Pirate Party in the UK isn’t seen as being as strong as elsewhere, but perhaps this situation gives the Party a chance to make itself and its polices more well known and understood in the UK.

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Techdirt. Mike Masnick

I heard about this story last week, but it took a while to sort through all of the details. There were reports out there that the romance author Adele Dubois had been sent a DMCA takedown. Most of the reports were a bit vague, and then the Washington Post had a very confused writeup that bounced back and forth between copyright and trademark, without bothering to mention that you cannot use a DMCA notice for trademark issues (and also pointing much more of a finger at Google than was warranted).

I’ve now been able to see the full DMCA notice (which is not yet up on ChillingEffects, but should be soon — though I’ve included it below) and talk to a few people around this, and it appears that someone associated with Sony did, in fact, issue a DMCA takedown to Google, leading to a blog post by Adele Dubois being taken offline. Google has since reinstated the post, after reviewing the counternotice, so you can read it here, though depending on your workplace, it may be marginally not safe for work (think erotic romance novel graphics and prose).

The DMCA takedown notice details are extremely sparse. It notes that the “copyright owner” is “XL SONY” and that the “Copyright work description” is “ADELE + EXITOS.” It then lists out two URLs. One for “Location of the copyrighted work” and one for “Location of infringing material.” It’s not clear what the difference is here, but the first one takes you to a sales page for a totally different (and unrelated) romance book, whose author runs the blog where the Adele Dubois post was. The author of that book, Marianne Stephens, notes that she holds all the copyright on that particular book, and isn’t clear why it’s in the DMCA notice. The second link (location of infringing material) is the link listed above. The only connection that seems to be made is the fact that the famous singer Adele is on Sony, and the author of the blog post (and the erotic romance novel it talks about) has the pen name Adele Dubois (a name she’s used since well before the singer Adele became a professional singer). Either way, there’s no copyright in just the name Adele. The word Exitos seems totally irrelevant to anything.

Google, as it does in these situations, reverted the blog post to “private,” and then upon reviewing the counternotice turned the blog post back on. It’s not entirely clear from the notice who actually sent the takedown. It’s possible that it was an overaggressive representative of Sony. What does seem clear is that whoever sent it was just doing some sort of quick automated takedown effort without any real review — even though the takedown notice says:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In the Washington Post article, the author suggests that Google should have gotten “to the bottom of this” before taking the content down. While that would be nice, the problem is not so much with Google as with the law itself, the DMCA. Because of the way the DMCA is structured, companies that don’t take down content first and review the details later face significant liability if the content turns out to be infringing. The law basically says, if you want immunity from liability, you have to first pull the content offline. So Google followed that procedure. As we’ve noted, this part of the DMCA potentially violates the First Amendment, but has yet to be tested in court.

That said, you can see why it’s so frustrating to the recipient. It’s not at all clear from the notice that Google’s Blogger passed on to the blog owners the information on who really issued the takedown, or even what, exactly, they were claiming. The bizarre link to the totally unrelated book doesn’t help matters, but only serves to confuse them further. Combine that with the threat that this can lead to a “strike” against an account and you can see why some recipients of notices like this get pretty worried.

In the end, this looks like yet another of an all too common phenomenon (and one we’ve dealt with ourselves). Companies file automated or questionable (or insanely vague) DMCA notices all the time, and the structure of the law encourages companies who receive them to pull the content offline immediately and sort out the mess later.

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Techdirt. Mike Masnick

You may have heard about a little IPO for some random tech company today. Something to do with books and faces. While we didn’t plan to talk about it much (because it’s getting covered to death everywhere else), we did want to comment on one thing that we’ve discussed for many, many years (going all the way back to 1999 and the first month we published in blog format). IPOs that have a big “pop” on the first day are often hyped up in the press as having a “good” IPO. And, the fact that Facebook spent the first few hours after opening trading right around its IPO price is being described in the press as if it was a bad thing:

“It’s a total disaster because the stock is trading right at the IPO price,” said Francis Gaskins, editor of IPOdesktop.com in Marina del Rey. “They didn’t want that in a million years.”

I guess this depends on who the “they” is in that latter sentence, but if we were dealing with a rational world, having the trades be right around the IPO price is actually a good thing, which suggests that the underwriters properly priced the IPO to what the market price is. Having a massive pop means that the company actually left money on the table — often a lot of it.

In case you’re unfamiliar with how IPOs work, basically what happens is the underwriters “buy” all the equity that’s going on the market from the company, and then put it on the open market. So, that IPO price shows exactly how much Facebook gets. All of the trading after that is between other entities. So, for example, with Facebook, it got $38 per share last night from the underwriters. If, today, the stock had been trading at (just for example’s sake) $80, it would have meant that Facebook effectively sold its shares for half price on what the market would bear. That would be more of a disaster, because it would suggest that Facebook missed out on a lot of money.

Of course, the banks often like to underprice things a bit, because that creates more buzz and more trades (and they can get more money that way too). But, from Facebook’s standpoint, it should be happy that the trading remains around the opening price. Of course, going forward, the company should want the stock price to go up, because that means when it taps back into the market it can get more for whatever equity it sells. But an initial day pop, for all the hype and press it generates, is not something that should be celebrated. It shows that a company got shafted.

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Techdirt. Mike Masnick

We’ve covered plenty of copyright trolling operations, and the Copyright Enforcement Group is one of the earliest to show up in the US, though there are few details as to who is actually behind it. We recently have been in contact with someone on the receiving end of a shakedown threat letter from CEG for their Lindsay Lohan fan page. The person who ran the site was, not surprisingly, a Lindsay Lohan fan, and tried to use the site to “promote the good things in Lindsay’s life” rather than the typical schadenfreude surrounding Lohan these days. It was, in other words, the kind of site that Lindsay Lohan herself might appreciate. But it no longer exists, thanks to copyright trolling.

Like most fan sites, this one had some graphics, and the company that holds the copyright on those graphics, AKM Images, apparently hired CEG to start demanding cash from people, including the operator of this Lindsay Lohan fansite. Upon receiving the email, the owner of the site completely deleted it out of fear. However, he also saw that, according to Google analytics, the page that had the images had a grand total of nine pageviews from six unique visitors (and the operator of the site notes that one or two of the visits likely came from his own computer). In other words, even if the images were “infringing,” you could make a pretty strong argument for either fair use or de minimis use.

The threat letter, of course, makes no mention of the details or possible defenses. It just says that each image requires a “settlement” fee of $500, and if you total up the 17 images (sent across two separate demand letters) that were hosted on the site, the owner is expected to pay $8,500.

It does seem likely that this individual did, in fact, post images without a license, though this is quite common across the internet. You could see a pretty strong fair use/de minimis use claim here, in that the site was non-commercial, was designed to help promote Lohan and was basically just a fan expressing appreciation. But, these days, expressing appreciation of someone famous can get you threat letters like this one (we’ve included one of the two threat letters below).

While there is, perhaps, an argument that the site infringed, the “harm” on the copyright holder is non-existent (there is no way this person would have paid to license such images). If I were a part of Lindsay Lohan’s “publicity” team, at the very least I would probably look into paying off this settlement and supporting the site operator. In the meantime, it seems like actions like this could do a lot of harm to celebrities, as copyright trolls try to “crackdown” on fan sites, not only forcing many of those sites closed, but pissing off some of the celebs’ biggest fans.

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Techdirt. Mike Masnick

Just as we’ve seen the DOJ come out and scold police for taking away people’s rights by arresting people photographing or videotaping police, we have two separate stories (found via PetaPixel) of photographers who were arrested by police for taking photos of public protests, both of whom had their cases dropped due to videotaped evidence from others that was posted to YouTube.

The two cases were unrelated, but have a similar fact pattern (and one not particularly different than previous stories we’ve seen). One case, in Seattle, involved a photographer named Joshua Garland, who started photographing recent protests in downtown Seattle, and was arrested and charged with third degree assault supposedly for “grabbing a police officer’s hand and twisting his arm.” Garland’s lawyer, Andrea Robertson, went on YouTube and was able to piece together videos of the incident, which she then showed to prosecutors, saying that the video footage made it clear “there was absolutely no way that the officer’s account of events is what actually happened.” Because of that, police dropped the charges.

Meanwhile, dealing with a similar issue in New York, photographer Alexander Arbuckle actually went to trial, where, once again someone else’s YouTube footage helped exonerate him (and show that the police appeared to lie). In this case, he was charged with “disorderly conduct” (which we see a lot in cases where police arrest photographers for photographing or videotaping them. The police officer claimed, under oath in court, that Arbuckle was in the street and blocking traffic, leading to the arrest.

Thankfully (or, if you’re the police, unfortunately), there was a lot of evidence contradicting that statement. This included Arbuckle’s own photos, which were taken from the sidewalk, and (more importantly) a Ustream video from a guy named Tim Pool “showed that not only was Arbuckle on the sidewalk, so were all the other protestors.” As the Village Voice notes, “the only thing blocking traffic on 13th Street that night was the police themselves.” Here’s the video, with the key section being from 31:50 until about 35:00.

As Petapixel points out, this certainly suggests that the police lied under oath.

Oh, and a bit of irony: Arbuckle was at that protest to try to document the cops’ side of the story, saying that he felt the media had been unfair in covering the police, portraying them as aggressors, when he didn’t believe that was true. Yeah.

Either way, this highlights a couple of related points:

1. Police across the country continue to arrest photographers on completely bogus charges — despite courts (and the Justice Department) making it clear that this is legal activity. In at least some cases, it appears that they are then willing to lie about it in court.
2. Similarly, this demonstrates the importance of being able to photograph and film police while on duty, to provide evidence when there is wrongdoing. That the “wrongdoing” involved incorrectly arresting other photographers only serves to make this point even stronger.

It’s really amazing to me how frequently we see stories like this. It’s good that these two cases both got dropped, though crazy that either one existed in the first place, let alone that one of them went all the way to court.

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Techdirt. Mike Masnick

Putting together maps may seem like a simple thing, but it can often have significant consequences, especially involving national identity and nationalistic feelings. And, given the prominence of Google Maps, the company has been no stranger to controversy over some of its mapping choices. Back in 2005, Taiwanese politicians protested Google referring to the island as a province of China. Similarly, there have been complaints about Palestinian territories being labeled as a part of Israel. Of course, given the very well documented disputes about the issues in both regions, it’s no surprise that the mapping choices (either way) would likely upset some. Of course, my favorite Google Maps dispute may have been when Nicaragua accidentally invaded Costa Rica and then blamed Google Maps for the mistake, which came close to creating a serious international incident.

The latest such story involves Iran threatening to sue Google for not labeling the Persian Gulf. The article goes through the details, and Google seems to dance around the subject. A spokesperson claims that not every body of water is labeled — but as the report points out, lots of other bodies of water in the area (including many that are significantly smaller) are labelled. As the article notes, there is at least some dispute over what the body of water is called, suggesting that Google’s way of dealing with the controversy this time around is to just not label it at all. Though, clearly, that doesn’t seem to have helped.

Of course, what I’m wondering is just what kind of “legal action” Iran thinks it can reasonably take here. I’m sure they can go after Google in an Iranian court, but I can’t see how that matters. Google is outside their jurisdiction and the “worst” case scenario is that Google gets blocked. But given Iran’s widespread internet censorship, and the expectation that it’s about to expand greatly, it’s not clear that even that would be a big change. If Iran were to sue somewhere else, what would be the basis? Not liking how a map is labeled doesn’t automatically make it illegal.

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Techdirt. Mike Masnick

TorrentFreak alerts us to an interesting new research paper from Robert Hammond, an assistant professor at North Carolina State University, looking at the direct impact on sales when albums are leaked early online. The study is pretty thorough in trying to separate other factors and isolate the actual causal impact. It’s a bit of an extrapolation to claim that the study says “file sharing boosts music sales,” as I don’t think the paper actually goes that far. It seems to suggest, however, that for popular artists, having an album leaked appears to lead to a small, but significant, increase in sales. The impact is not seen for newer or less-well-known artists.

To put this result into context, consider the effect of leaking one month earlier on the sales
of an album; that is, predict the effect of leaking one month earlier on the number of additional
seeders per leecher, then predict the effect of these additional seeders on the number of additional
downloads, then finally predict the effect of these additional downloads on the number of additional
sales. This exercise predicts that an album that leaked one month earlier will receive 59.6 additional
sales.

The report is interesting in that it uses a different, and perhaps much more revealing, data set. Hammond got the data from a popular private tracker that is well known for pre-release works. He claims, quite reasonably, that this means his results are much more useful than other studies that rely on proxies that may not be as accurate.

That said, the report notes that other that other sources of marketing seem to have a larger impact than file sharing. The study is interesting in that it at least challenges a few other reports that have argued that file sharing leads to fewer sales (and even a report that claims that the entirety of the decline in recorded music sales is due to file sharing). While Hammond mentions this particular study, by economist Stan Liebowitz (a vocal supporter of the entertainment industry’s position on file sharing), he notes that the two were studying different things — one macro and one micro. It’s also worth noting that Hammond appears to have had Liebowitz review his study before publishing it (though who knows what he said about it).

I think the results here are interesting, but it still does seem like an area of research that needs a lot more focus, as I would bet there are many additional variables at work here, as we’ve discussed. We’ve seen that artists that do a good job connecting with their fans, and giving them a reason to buy, seem to see an increase in sales — and that’s independent of how the content is leaked or released (mostly, since you could argue that having the content available is one way of connecting).

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Techdirt. Mike Masnick

Here’s a random story, found via Kottke, highlighting how Pixar came very close to losing a very large portion of Toy Story 2, because someone did an rm * (non geek: “remove all” command). And that’s when they realized that their backups hadn’t been working for a month. Then, the technical director of the film noted that, because she wanted to see her family and kids, she had been making copies of the entire film and transferring it to her home computer. After a careful trip from the Pixar offices to her home and back, they discovered that, indeed, most of the film was saved:

Now, mostly, this is just an amusing little anecdote, but two things struck me:

1. How in the world do they not have more “official” backups of something as major as Toy Story 2. In the clip they admit that it was potentially 20 to 30 man-years of work that may have been lost. It makes no sense to me that this would include a single backup system.
2. I wonder if the copy, made by technical director Galyn Susman, was outside of corporate policy. You would have to imagine that at a place like Pixar, there were significant concerns about things “getting out,” and so the policy likely wouldn’t have looked all that kindly on copies being used on home computers.

The Mythbusters folks wonder if this story was a little over-dramatized, and others have wondered how the technical director would have “multiple terabytes of source material” on her home computer back in 1999. That resulted in an explanation from someone who was there that what was deleted was actually the database containing the master copies of the characters, sets, animation, etc. rather than the movie itself. Of course, once again, that makes you wonder how it is that no one else had a simple backup. You’d think such a thing would be backed up in dozens of places around the globe for safe keeping…

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Techdirt. Mike Masnick

Law professor Rebecca Tushnet recently somewhat jokingly posted the following bit of irony that she found when going to the US Copyright Office for their hearings on DMCA exemptions:

law v. norms, or why anticircumvention law doesn’t work

At the Copyright Office, waiting for the hearings to begin. I did not interact with this setup in any way:

Now, this might just be a silly picture, showing how someone at the Copyright Office chose not to obey the “rule” that the door shouldn’t be propped open, but Tushnet’s “joke” about this showing why anticircumvention law doesn’t work, because societal norms trump the law every time, is an important and valuable point. The reason that there is so much infringement isn’t because the laws aren’t strong enough. It’s not because there needs to be more education or greater enforcement. It’s that people fundamentally don’t believe the laws make sense. Trying to block circumvention doesn’t work when the tools make it quite easy to circumvent, and the end result — propping open the door or being able to do what you want with the content you legally purchased — just makes too much sense. If only the folks at the Copyright Office recognized that this applies to a lot more than propping open a door, but to the area of the law that they constantly seek to expand.

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Techdirt. Mike Masnick

Due to massive secrecy and a near total lack of transparency by the US Trade Representative Ron Kirk, we don’t know for sure what the US is negotiating “in our name” as it advances through the negotiation stages of the Trans Pacific Partnership agreement. What little we do know comes from a leaked version of the US’s IP proposal from last year. While this might be out of date, we really don’t know what’s changed because of the USTR’s obnoxious refusal to let the public know what it is pitching in their name.

Thus, it’s reasonable to look at what was in the original pitch. And, what we see is not good. Jodie Griffin from Public Knowledge is highlighting some of the problems with the proposal, including the fact that it appears to flip the burden on a number of things in copyright from the copyright holder having to prove the basics (that they hold the copyright, that the copyright is valid, etc.) to the reverse: that the accused has to prove that the other side does not hold the copyright or that the copyright is invalid. And this is for both civil and criminal infringement. That is, TPP takes the very basics of a system in which you are innocent until proven guilty, and effectively says that the courts should assume that the plaintiff doing the accusing is correct, and the entire burden falls on the accused to prove it did not infringe. That seems like a pretty massive change, and one that would severely alter current US law on the subject.

You would think that if the US was negotiating for such a massive change in US law it would be open to a public discussion about the matter. However, as we’ve noted repeatedly, for whatever reason the Obama administration and the USTR in particular, seem to have no interest in letting the public in on this little game. Instead, it huddles with Congress (the same Congress who for years has done the entertainment industry’s bidding whenever possible) and directly with industry lobbyists — and then declares that it is being “transparent.” This is crony capitalism at its finest, and the public continues to suffer.

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Techdirt. Mike Masnick