Three adult media entertainment producers filed suit yesterday in the U.S. District Court for the Northern District of Illinois alleging copyright infringement against hundreds of anonymous defendants accused of trading videos using Bittorrent. This kind of action resembles the much-criticized mass litigation undertaken by the U.S. Copyright Group against hordes of unknown accused Bittorrent users [...]
The Iranian Research Organization for Science and Technology is directly connected to the Iranian Government. Aside from evaluating and advising policy makers on science and technology issues, the largest research outfit in the country also provides a warez server where Photoshop, MS Office and many other applications can be downloaded for free, totally legal thanks to Iran’s lenient copyright policy.
For the London Free Press – August 16, 2010 Read this on Canoe [UPDATE: Also take a look at this related Techdirt post entitled The Insanity Of Music Licensing: In One Single Graphic ] Radio royalties are complex. On July 9, 2010, the Copyright Board of Canada issued its long-awaited Commercial Radio tariff and reasons. [...]
I recall a Twilight Zone episode with a great twist: a man, in order to win a bet that he could stay quiet for an entire year, has had his vocal cords severed. The idea being, it is particularly gruesome to imagine a human being rendered mute for money. Sadly, this episode has not aged terribly well: the obscenity of modern three-strikes Internet laws takes any sting out of the twist ending.
One of our allies, New Zealand, is considering a three strikes Internet termination plan. Another ally, France, has already passed such a measure – HADOPI, but can’t seem to enforce it (legally). While I’ve written about the lunacy that is HADOPI, I thought our friends down under might be interested to learn of the hideous side effects of swallowing the Internet Execution program.
I’ve already written about France’s ill-considered HADOPI law, which mandates termination of accused pirates. Supporters of HADOPI have noted that there is at least a five-minute hearing before the line is snipped. In order to make these hearings more efficient, the French government has considered getting into the spyware business.
In order to defend yourself from an accusation of copyright infringment (and avoid the resulting digital execution), you will need to provide a record of your internet use. The government would make available surveillance tools that users would need to install in their machines. The government has asked that the software include:
So, in order to protect yourself from losing your Internet, you need to offer up some of your privacy? How delicious. There was an old woman who swallowed a fly. . . A three-strikes policy can usher in a regime of “voluntary” self-surveillance. You don’t want to provide the court with your Internet records? What have you got to hide?
But I figure that many of us would do pretty much anything to keep our Internet in the face of false accusations of infringement. Despite what three strikes proponents (read: friends of the Entertainment Industry) claim, the Internet is not some trifle. Internet access, or the lack thereof, implicates job training, education, access to government resources, and self-expression. Severing an individual’s connection seems akin to mutilation or exile.
The morale of the story is: when you put in place a system with enormous consequences and little-to-no due process, individuals will take measures (however unpleasant) to protect themselves from arbitrary punishment. Between plans mandating that users password protect their wifi and record their own Internet use, we have seen a moment to an online copyright regime of guilty until proven innocent. With three strikes looming in New Zealand, and the hints of a three strikes plan in the ACTA negotiations, we may soon find ourselves sacrificing our rights in order to safeguard our basic necessities.
(Andrew Moshirnia is a third year student at Harvard Law School and a CMLP blogger. Somewhere beyond him, a wheel was turned and his number came up black thirteen.)
Christen v. Iparadigms, LLC, No. 10-620, 2010 WL 3063137 (E.D.Va. Aug. 4, 2010) Plaintiff was a graduate student and one of her professors uploaded a couple of plaintiff’s papers to the web-based plagiarism detection service Turnitin. You may remember how the Fourth Circuit held last year that this uploading and use of students’ papers is [...]
GateHouse Media, Inc., a publisher of local newspapers is suing That’s Great News, LLC (TGN) in Illinois federal district court, claiming breach of contract and copyright infringement. (See our threat database entry for more background information on the case.) In the complaint, GateHouse alleged that TGN was selling plaques emblazoned with unauthorized reprints of GateHouse newspaper articles in violation of their Creative Commons licenses. As you may have guessed, TGN is in the business of selling fancy plaques displaying really "great news" about the people and companies featured in the local papers.
This isn’t the first time GateHouse has been in a squabble over its Creative Commons-licensed content. The current case has spurred some speculation on why a plaintiff would want to sue under a theory of copyright infringement as well as one for breach of contract.
To begin with, it is often advantageous to plead breach of contract in the alternative to copyright infringement. Whether a copyright infringement claim against a licensee is available may depend on whether the violated license term is a condition or a covenant. If a licensee violated a condition of the license, she is acting outside the scope of the license. By doing so, she no longer has a contractual right to use the copyrighted material, and her conduct could be subject to a valid copyright infringement claim. However, if the term violated by the licensee was a covenant, not a condition, the licensee would still retain her contractual right to use the copyrighted material. In that case, the licensor could only sue for breach of contract. When the license language is potentially ambiguous, a copyright holder would likely want to keep that option open, in case the court decides the violated term was merely a covenant.
For example, in Jacobsen v. Katzer, 535 F.3d 1373, 1381 (Fed. Cir. 2008), the court interpreted the language of an open source copyright license and decided that the plaintiff could sue for copyright infringement because the license included conditions: "The [license] states on its face that the document creates conditions…. The [license] also uses the traditional language of conditions by noting that the right to copy, modify, and distribute are granted ‘provided that‘ the conditions are met…" (emphasis in the orignial).
Following Jacobsen, a defendant in TGN’s position may argue that the Creative Commons license at issue is not clear in identifying "noncommercial use" as a condition of its license. The legal language describes noncommercial use as a "restriction" of the license, which is inconsistent with the use of "terms and conditions" limiting the scope of the license. When the license is read in its entirety, however, it seems clear that Creative Commons intended "noncommercial use" to be a condition. To begin with, the license grant is "expressly made subject to" the restrictions. The public-facing page of the license also explicitly identifies "noncommercial use" as a condition of the license. In addition, when content creators are choosing among licenses, Creative Commons invites them to "choose a set of conditions they wish to apply to their work." Nevertheless, as insurance against potential ambiguity, a copyright holder like GateHouse may plead both breach of contract and copyright infringement in case a judge agrees with the defendant’s argument that the restriction is not a condition of the license grant.
While a plaintiff is barred from recovering twice for the same injury, she may still choose to claim copyright infringement as well as breach of contract because different remedies are available under the two theories. The cap on statutory damages for copyright infringement cases is $30,000. If the plaintiff can show that the infringement was willful, the damages range up to $150,000 per infringement, increasing a willful infringer’s potential liability to a rather hefty sum.
In contrast, to recover under breach of contract, a plaintiff has to prove that damages were reasonably foreseeable at the time of contract formation and are reasonably certain at the time of the trial. This may be much harder to accomplish than adding up the licensee’s acts of willful copyright infringement. Still, if the plaintiff puts forward a robust evidentiary showing, she may potentially collect damages well beyond $30,000 for acts that were not willful. In that (albeit unlikely) case, a plaintiff may prefer to recover contract remedies for violations of a copyright license.
(Marina Petrova is a rising second year student at UCLA School of Law and a CMLP legal intern.)
(Photo courtesy of Flickr user IXQUICK licensed under a CC Attribution-NonCommercial-ShareAlike 2.0 Generic license. )
One of the most controversial aspects of the copyright reform bill is the digital lock provisions, which make it unlawful to break digital locks, even if it is only to exercise a right copyright law actually gives you. A new US case has limited the effect of the US DMCA digital lock provisions, saying that [...]
Q. Why did the comedian Tweeter cross the road?..A. .. to steal someone else’s joke posted on Twitter??The Grauniad reports today on the latest spat in the turf war that is developing on Twitter between comedians trying out jokes and material, and pa…
Apparently, when it’s been released under a freedom of information (FOI) request!This is not, I imagine, the answer you, gentle reader, expected:)Pangloss was recently asked by an acquantance, X, if he ran any legal risk by publishing on a website som…
The latest leak of the Anti Counterfeiting Trade Agreement (ACTA) came out a few days ago. Before we delve into the more troublesome elements of the agreement, let’s take a few moments to ponder how sad it is that our government continues to craft this agreement in secret.
I have spilt much digital ink over the stupidity of overt secrecy. When you won’t show me what is behind the curtain, I want nothing more than to rend draped velvet. But if you just pull the fabric back and show me the fantastipotamus, I’ll quickly grow bored.
The trade representatives crafting ACTA feigned that they understood this basic equation (openness + politics = mundane disinterest) when they finally released a draft of the long secret agreement a few months back. Granted, this release came after a series of leaks exposed the noxious text. But I thought there was a glimmer of hope that US negotiators might provide some of the transparency our current administration had promised.
No such luck. The resumption of secrecy was all but announced when trade representatives would only show the text to the EU Parliament in camera, with the MEP’s forbidden to share the information with the public. I am happy to note that the representative from the Pirate Party, Christian Engstrom (arrgggh) walked out rather than take part in this Court of the Star Chamber.
Thankfully this is not the end of the story. Because this agreement (which, let’s recall, was supposed to be about counterfeit goods) threatens the internet access of citizens, as well as the safe harbors of Universities and ISPs, there will be no shortage of leaks to the web.
The latest leak of ACTA signals that there might be trouble in overreaching-undemocratic-drafting-paradise. It seems that there is serious disagreement over Article 2.2 (Injunctions):
The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.
The United States and Japan seem to be considering the inclusion of this clause, while Australia, Mexico, and others oppose it.
The clause is troubling because it could serve as a backdoor method for introducing three strikes cutoffs for accused users. One of the great fears around ACTA is that the agreement will cause ISPs to block service to accused users. This is certainly the goal of representatives of the entertainment industry. Indeed, the industry supported the three strikes HADOPI law in France (which the current regime is rethinking) and Lord Mandelson’s Digital Economy Bill in England. I don’t think I need to revist why these measures are obscene. I have covered the arguments against these measures here and here. When the latest ACTA draft was released, people cheered that the agreement did not mandate three strikes. However, the text encouraged such a method by providing a three strikes prohibition as the only example of a safe-harbor preserving ISP response.
Article 2.2 suggests that injunctions may be served directly to ISP intermediaries, resulting in the cessation of internet access. That is, rather than serving and trying the accused pirate, the rights holders would target the risk adverse ISPs. Although it is likely that courts would not order a digital execution without hearing something from the accused, it is likely that ISPs would want to avoid the matter entirely by simply acceding to the right holder’s demands. Cf. the rampant abuse of DMCA take downs. Kimberlee Weatherall, a law lecturer at University of Queensland, voiced similar concerns for Australians and their ISPs, mutatis mutandis.
Supporters of ACTA will claim that this doomsday interpretation is farfetched. I think that the track record of the entertainment industry and the clear push for a three strikes option counsel against that attack. However, I fully acknowledge that I tend to imagine the worst-case scenario when shadowy figures meet in smoke filled rooms and refuse calls for even the most basic transparency. If the ACTA negotiators would simply step into the light, I would no longer need to imagine secret rituals, swinging censers, and internet blocking collective punishments. So once again, I ask that this pointless secrecy cease. Be open. Be boring. Let politics be politics again.
(Andrew Moshirnia is a rising third year at Harvard Law School. ACTA makes him a sad panda.)