The Google Books Project has hit another snag – the amended settlement agreement between the Authors Guild and Google has not been approved by the United States District Court of the Southern District of New York. While not an unexpected result, it does put the future of Google Books on hold for at least the immediate future. As Apple recently came to an agreement with Random House, the only major publisher it had failed to secure rights from as part of its iBookstore, Google will likely seek to act quickly in order to capture an important share of the important eBook market. Whether they can do that in the context of this lawsuit remains an open question.
Archive for March 2011
On March 15th, the White House announced that it planned to vigorously combat copyright infringement. An interesting part of this announcement was the White House’s proposal to step up efforts to combat so-called “illegal” video and audio streams. These illegal streams generally allow people to view live TV via a feed on the internet, allowing, for example, out of market sports fans to still watch their team’s games. Some websites even allow users to stream movies and pay-per-view TV. In the announcement, the White House proposed that Congress pass a law to clarify that infringing copyrights through streaming is a felony. This proposal comes after the US seized the domain names of popular streaming sites, ATDHE.net and channelsurfing.net. This action did not actually accomplish much, however. The US only seized the domain names, and the websites were able to resurface with new domain names not registered in the US and therefore not subject to US jurisdiction. Nevertheless, this announcement and the seizures are a warning that the administration plans to crackdown on illegal streams and prosecute the people responsible for these illegal streams.
The proposal to make copyright infringement through streaming a felony will encounter some complex line drawing problems. The proposal specifically asks Congress to “clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.” This phrasing puts the onus on Congress to figure out what “similar new technology” is and what “appropriate circumstances” are. For example, a poorly worded statute could kill products such as the Slingbox. The Slingbox is a product that essentially attaches to a cable box, allowing the user to stream his home cable via the internet. Each user has his own username and password and can only access his Slingbox, so it is essentially a DVR that you can access over the internet. Sloppy statutory drafting could accidently outlaw this product and others similar to it.
Legal issues aside, cracking down on illegal streams may not be good public policy. First, it may be impossible to stem the tide of illegal video streams, as many of the websites are not based in America. Moreover, if the administration succeeds in killing illegal streams, people displaced from these sites would likely turn to torrents, which offer the same content, just not live. Many torrent websites, such as The Pirate Bay, are foreign companies – registered in the Seychelles, for example – and the US government might not be able to reach them. The White House should also be worried about the public sentiment against a severe crackdown. The RIAA garnered a lot of negative attention for pursuing severe sanctions against copyright violators, and it may have partly lead to the record companies losing their grip on the music industry. Further, it is unclear how much these illegal streams actually hurt copyright holders. The networks that produce the content of these streams actually gain viewers through illegal streams, which could garner more advertising fees and, in the long run, more subscribers. In fact, CBS March Madness On Demand, which legally streams NCAA Basketball Division I tournament games for free, had 8.3 million unique viewers during the 2010 tournament. ESPN has similarly capitalized on the streaming market through its ESPN3 offerings, although only users with certain ISPs can access ESPN3. The only difference between these streams and an illegal stream is the copyright holder’s disapproval. Illegal streams had a part in making companies provide these innovative streaming services, and given time, might spur further technology growth. Finally, people who do not have access to legal versions of the shows they wish to watch might drive a lot of the demand for illegal streams. For example, many European soccer games are not shown on American TV, and many popular soccer shows, such as Match of the Day and Sportschau are not available on American TV. Some niche sports, such as college hockey, might only be available in certain areas through online streams. Expats who are Michigan football fans might not be able to view Michigan football games without streams. Disabling access to these streams will not make viewers happy and might trigger a minor backlash against the administration. Nevertheless, the administration seems poised to combat these illegal streams and protect copyright holders, for better or for worse.
The Electronic Frontier Foundation reported last week that over 40,000 unnamed “John Doe” defendants in California, Texas, Washington D.C., and West Virginia have been “effectively dismissed” in the P2P file-sharing lawsuits against them. This is the latest news in the series of mass copyright-infringement lawsuits over the past year by so-called copyright trolls, and could mean trouble for the supposed business model of such organizations, which aims for “quick, low-hassle settlements” from numerous defendants.
Similarly to patent trolls, a copyright troll, as described by Wikipedia, “enforces copyrights” for the primary purpose of “making money through litigation.” Organizations with official-sounding names such as the U.S. Copyright Group, Righthaven, and the Copyright Defense Agency have brought a variety of copyright infringement lawsuits, ranging from BitTorrent downloading of independent films and pornographic movies, to the posting of news articles on blogs and forums. In some cases, the organization represents a group of copyright owners; for example, according to Wired, the U.S. Copyright Group represents independent filmmakers. Another organization, Righthaven LLC, reportedly acquires copyright in works after discovering identifying instances of potential infringement; according to Law.com, Steve Gibson, founder of Righthaven LLC, “founded Righthaven to file suits based on newspaper copyrights he has acquired.”
With the proliferation of lawsuits filed by copyright trolls within the past year, the litigation tactics of these organizations, characterized as “predatory,” have troubled many. The EFF, which filed amicus briefs on behalf of defendants in some of the cases and are helping defendants obtain legal representation in other cases, has characterized the M.O. of copyright trolls as dependent on “vulnerable defendants” and “cookie-cutter litigation.”
The groups target defendants by monitoring activity on the Internet. For example, the U.S. Copyright Group used a proprietary new technology to monitor movie downloads on torrents and identify IP addresses linked to downloads. The EFF states that targeted defendants have compelling reasons “to be eager to settle” when they are sued. For example, the defendants targeted by the Copyright Defense Agency on behalf of gay adult film studio Lucas Entertainment may be “afraid of the consequence of having their information made public.” Other defendants do not have the means to contest a lawsuit or pay damages for copyright infringement. For example, some of the defendants targeted by Righthaven are nonprofit organizations or individual bloggers such as Brian Hill, the 20 year-old chronically ill and autistic “hobby-blogger” on disability. According to a report from Wired, as of last October, Righthaven has settled 60 of 160 cases for several thousand dollars each.
Despite the apparent success of copyright trolls in some cases, some of the litigation tactics the copyright trolls employ are working against them in other cases. The EFF characterizes these tactics, such as filing a single lawsuit against hundreds or even thousands of unrelated “John Doe” defendants, as “crucial” to the copyright troll business model, by keeping costs down and thus boosting profits.
Some courts are responding to these lawsuits by requiring the plaintiffs to file separate lawsuits for each defendant. For example, last month a federal district court judge in Texas severed 1336 of 1337 defendants in one case filed by Copyright Defense Agency attorney Evan Stone. Pursuing a lawsuit against each individual defendant would require a $350.00 fee and a separate filing for each defendant. Such requirements would make the use of such tactics by copyright trolls cost-prohibitive. It remains to be seen whether or not this type of judicial action will ultimately deter copyright trolls or if they find ways around such roadblocks.
In the midst of worldwide change, there is a recurring theme: The role of the Internet.
What has happened lately?
- In Egypt, as protests began in late January, the government responded by shutting down the internet (through various means), hoping to quell the voice of the masses.
- Around the same time, a bill was reintroduced in the U.S. Senate which proposed giving the President what was labeled an internet “kill switch.” Perhaps an ill-timed move, comparisons were made almost immediately to Egypt. The bill has already been revised.
- As the so-called Jasmine Revolution expanded throughout the Middle East, more examples popped up of the Internet being used as a means of democratic communication. For example, Libyan revolutionaries used coded messages on a Muslim dating site to communicate, hoping to avoid the Libyan secret police.
- In response to the Jasmine Revolution and in an effort to squelch any revolutionary or anti-government speech, China chose to strengthen its censorship over the internet. Among other things, the website LinkedIn was shut down, and keywords such as “Tunisia”, “Egypt”, and “Jasmine Revolution” were blocked from various sites.
- Amidst all of this are two other key players: Wikileaks and Anonymous. Wikileaks, the well-known whistleblower organization, has been engaged in a battle over its internet presence. Meanwhile, Anonymous, a pro-Wikileaks group of “hacktivists”, has also become involved in protests throughout the world. In Egypt, it used fax lines to send Wikileak reports to the protesters. Recently, it has targeted the Koch brothers in an attempt to support the Wisconsin anti-union busting protests.
Where does this leave us? For one, there is the ongoing debate in the U.S. regarding the FCC’s proposed net neutrality laws, which have found an opponent in Republican House Speaker John A. Boehner. As mentioned above, although the “internet kill switch” bill has recently been renamed and amended to try and appease opponents, the debate goes on about the extent to which the internet should be in the hands of the government. On the opposite side of the debate, those who are concerned about internet security issues continue to argue the necessity of such a bill. Case in point: A proposed federal government shutdown on March 4th has been tied to concerns of a possible cyberwar emergency.
There is the sense of a looming threat to the democratic, open nature of the internet. On top of the issues of government and private censorship and control over the Internet, a recent controversy has been the use of “astroturfing,” a process designed to drown out dissenting opinions on open internet channels. Software creates internet personas which are then used to promote certain ideas an opinions, especially in places like forums, which are designed to provide access to the masses.
With threats both internal and external to the freedom and democracy of the internet, the ongoing discourse about the internet’s role in the US could not come at a more appropriate time.