The American Bear

Sunshine/Lollipops

Supreme Court OKs $222K Verdict for Sharing 24 Songs | Threat Level

The Supreme Court on Monday let stand a jury’s conclusion that infamous file-sharer Jammie Thomas-Rasset pay the recording industry $222,000 for downloading and sharing two dozen copyrighted songs on the now-defunct file-sharing service Kazaa.

Without comment, the justices declined (.pdf) to review a petition from the Minnesota woman who claimed the damages award was unconstitutionally excessive and was not rationally related to the harm she caused the music labels. Thomas-Rasset was the nation’s first file-sharer to challenge a Recording Industry Association of America lawsuit, one of thousands the industry lodged against individuals who illegally shared music on peer-to-peer networks.

The high court’s move ends a legal saga that dates to 2007. The litigation had a tortuous history involving a mistrial and three separate verdicts for the same offense — $222,000, $1.92 million and $1.5 million.

The Supreme Court has never heard an RIAA file-sharing case and has previously declined the two other file-sharing cases brought before it.

Obama Administration Sides With Music Industry In Seeking To Uphold Draconian Award Against Minnesota Mother For Sharing Songs | Jonathan Turley

We have previously discussed how President Obama has repeatedly yielded to the “copyright hawks” who have steadily increased the penalties for copyright and trademark violations, including criminal penalties. Despite the abuse of average citizens by thuggish law firms and prosecutors, the Obama Administration continues to support draconian measures against citizens. Even after the abuse and death of Aaron Swartz by the Justice Department, the Obama Administration has decided to double down in a case of a young mother in Northern Minnesota who was hit with grotesque penalties for simply sharing 24 songs. She was told to pay $222,000 — over 100 times the actual damages for the songs. The Obama Administration has intervened before the Supreme Court to ask for it to allow the penalty to stand as lawful and correct.

The Administration has joined these companies in pummeling Jammie Thomas-Rasset for sharing music through the peer-to-peer network Kazaa. She has been fighting for years and put through two trials. Huge awards were thrown out by the court but the industry continued to make her an example by ruining her. Last year, the Eighth Circuit Court of Appeals upheld the $222,000 award. Rather than agree that such penalties are outrageous and seek the protection of average citizens in the courts or in Congress, the Obama Administration has done precisely what is demanded by industry lobbyists and lawyers.

What is striking is that these damages are not treated as punitive but statutory damages. The Supreme Court has previously struck down the awarding of punitive damages to citizens suing companies as unconstitutional. These cases like Gore v. BMW involved punitive damages greater than a 10 to 1 ratio to compensatory damages. They were found to run afoul of due process. In the Gore decision, the court wrote that “the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. at 1599. “This principle reflects the accepted view that some wrongs are more blameworthy than others.” Id.

The Obama Administration clearly does not believe that standard applies to people like Thomas-Rasset or Swartz. It precisely sided with the companies in the case and said the award was not excessive. While judges have decried these penalties as absurd, the White House continues to argue for the penalties to be enforced. The question is whether this Supreme Court will feel as much sympathy toward individual citizens in statutory penalty cases as did has repeatedly for companies in punitive damage cases.

The Obama Administration argued that awards can be disproportionate but that this is not such an award. It felt that the case really speaks to the poor company lawyers and shareholders who are put at an unfair disadvantage by citizens like Thomas-Rasset: “The public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement.” Without an effective remedy? The portrayal of these companies as helpless victims is a bit much … but not too much for the White House.

Leaked: US proposal on copyright’s limits | Ars Technica

The [Trans-Pacific Partnership] met last in early July in San Diego, CA for a round of negotiations, but none of the draft texts were made public. After that round of negotiations concluded, the USTR sent an e-mail to the press announcing that it was proposing language on fair use and limitations to copyright in the international treaty, a first for the generally conservative agency. But the leaked text, revealed by Knowledge Ecology International, suggests that these exceptions to IP rules won’t be quite as open as some fair use advocates had hoped.

Back in July, a USTR spokesperson said the trade agency would push for rules “that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” But in the new leaked draft text, while very similar phrasing appears, there seems to be room to crack down on any anticipated broad terms of fair use.

The US and Australia, for instance, proposed what entities like the EFF and KEI fear could be a rightsholder-friendly three-step test to determine what exceptions to copyright are allowable. The leaked texts specifically say that the participating countries should confine these limitations “to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.”

It’s important to note that the draft is just that—a draft. But the leak suggests that the US and Australia are pushing for more restrictive language, while countries like New Zealand, Chile, Malaysia, Brunei, and Vietnam are in favor of more open rules to allow “a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws.” The US and Australia opposed that wording, and sought to change the language to suggest “that each party may, consistent with the foregoing, adopt or maintain… exceptions and limitations for the digital environment.”

In other words, the US and Australia are saying a country can’t just decide on “limitations and fair use” based on existing domestic IP laws, some of which may be quite broad. Instead, limitations must conform to international agreements [made in secret with no public or congressional scrutiny, ed.], including the TPP, which can be more restrictive.

Federal Appeals Court Renders Victory For People Who Embed Copyrighted Videos On Websites

thepoliticalfreakshow:

The Seventh Circuit Court of Appeals ruled yesterday that a site that embeds copyrighted videos from another site is not committing copyright infringement.

Flava Works, Inc. v. Gunter came to a close after the ruling was passed in favor of the defendant, Marques Gunter, the sole proprietor of myVidster.com. The court also ruled that watching an infringing video does not constitute copyright infringement.

The case began in 2010 when the adult video production company, Flava Works, sued video bookmarking website myVidster, for copyright infringement. The Court for the Northern District of Illinois issued myVidster a preliminary injunction in July 2011. It was then appealed to the Seventh Circuit Court of Appeals.

The court ruled Thursday that embedding a video that infringes on copyrighted material is not a violation of copyright law. For example, if you found an episode of The Simpsons on YouTube and embedded it in your blog, you would not be violating any copyright laws. That holds true even if the person who uploaded the video ripped it straight from The Simpsons season 3 DVD. However, the person who uploaded the video is in violation of the law.

The court’s decision also protects those who watch illegally uploaded copyrighted videos. Judge Richard Posner wrote in Thursday’s ruling:

“…As long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right … His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement.”

(Source: thepoliticalfreakshow, via queerencia-deactivated20130103)

The Pirate Party knows where the money is | Dean Baker

One of the oddities of recent election results in Germany and elsewhere in northern Europe is the rise of the Pirate Party. This party received 7.8 percent of the vote in North Rhine-Westphalia yesterday, making it the fourth state government in Germany in which it has had enough support to get into the state parliament. It also won enough votes to get seats in the European Parliament. The Pirate Party is widely expected to cross the five per cent threshold in the German national elections next year, allowing it to get into the national parliament.

Like many new and rapidly growing parties, the Pirate Party has only a partially formed agenda, and undoubtedly means many different things to different supporters. However a general theme is clearly a support for the freedom of the internet. This means a rebellion against governmental efforts to track users, and against attempts to limit the flow of material over the web.

Near the top of the list of the Pirate Party’s demons is copyright protection, and rightly so. Copyright protection is an antiquated relic of the late Middle Ages that has no place in the digital era. It is debatable whether such government-granted monopolies were ever the best way to finance the production of creative and artistic work, but now that the internet will allow this material to be instantly transferred at zero cost anywhere in the world, copyrights are clearly a counter-productive restraint on technology. [read]

Before the net, if you wanted to send a copy of something that was protected under the copyright monopoly, it was an absolute given that you could do so. You would send that copy in the mail without a single thought of repercussions. You could send copies of drawings, you could send mixtapes of music, you could send copied movies. The reason for this was simple: the right to communicate in private is a fundamental human right, and the copyright monopoly is a commercial distribution monopoly that carries significantly less weight. The Fight Against Copyright Enforcement & The Fight For Civil Liberties Are The Same (via sociolab)

(via guerrillatech)

Internet providers to start policing the web July 12

Some of the biggest Internet service providers in America plan to adopt policies that will punish customers for copyright infringement, and one of the top trade groups in the music biz announced this week that it could begin as soon as this summer.

The chief executive officer of the Recording Industry Association of America told an audience of publishers on Wednesday that a plan carved out last year to help thwart piracy is expected to prevail and be put in place by this summer. RIAA CEO Cary Sherman was one of the guest speakers among a New York panel this week and he confirmed that, at this rate, some of the most powerful Internet providers in America should have their new policies on the books by July 12, 2012.

Last year, Time Warner, Verizon, AT&T, Comcast, Cablevision Systems and other Internet service providers proposed best practice recommendations that they suggested would help curb copyright crimes on the Web. The end result largely settled on consisted of a “graduate response” approach, a plan that would mean culprits could be issued a series of warnings for illegally downloading suspect material which, after a certain number of offenses, would lead to “mitigation measures,” connection speed throttling and termination of service.

“We anticipate that very few subscribers, after having received multiple alerts, will persist (or allow others to persist) in the content theft,” the Center for Copyright Information said in an official statement last summer as plans were first publicized. Now nearly a year after developments made by the big ISPs were first discussed, the RIAA’s Sherman says that online censorship sanctioned by corporate conglomerates such as Time Warner and Verizon are practically set in stone.

(Source: anticapitalist)

Big 4 labels to Canadian Parliament: we want to be able to control search engines, social networking, blogs, video sites, and community sites. Oh, and we want an iPod tax. | Boing Boing

Michael Geist sez, “The Canadian music industry is scheduled to appear before a Parliamentary committee today with some of the most radical demands to date that would effectively create liability for social networking sites, search engines, blogging platforms, and video sites such as Google, Facebook and Reddit. As if that were not enough, the industry is also calling for a new iPod tax, an extension in the term of copyright, a removal of protections for user generated content, parody, and satire, as well as an increase in statutory damage awards. Taken together, the Canadian music industry demands make SOPA look like minor tinkering with the law.”

theatlantic:

Enough, Already: The SOPA Debate Ignores How Much Copyright Protection We Already Have

The most frustrating part of the discussion around SOPA has been watching politicians and commentators fail to acknowledge the vast resources we already devote to protecting copyright in the United States. Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse). These standards were established through an alphabet soup of legislation: the No Electronic Theft (NET) Act of 1997, the Digital Millennium Copyright Act (DMCA) of 1998, and the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008. And every few years, there’s a call for more.

theatlantic:

Enough, Already: The SOPA Debate Ignores How Much Copyright Protection We Already Have

The most frustrating part of the discussion around SOPA has been watching politicians and commentators fail to acknowledge the vast resources we already devote to protecting copyright in the United States. Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse). These standards were established through an alphabet soup of legislation: the No Electronic Theft (NET) Act of 1997, the Digital Millennium Copyright Act (DMCA) of 1998, and the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008. And every few years, there’s a call for more.

(via circlingtheroundabout)

Obama Administration Pushes Internet Freedom Abroad While Urging Crack-Down At Home

The left hand doesn’t know what the right hand is doing. The United States this month signed on to a statement praising a pro-Internet freedom report by the United Nation’s Special Rapporteur on Freedom of Expression, even as the U.S. pushes new domestic laws and regulations to censor the Internet, restrict users’ Internet access, and criminalize more online activities.

Those efforts, pushed by the Obama Administration, its Intellectual Property Enforcement Coordinator Victoria Espinel, and certain member of Congress include:

1) Senate Bill 978 — the “Ten Strikes Bill” — would make unlicensed online streaming a felony — punishable by 5 years in prison.

2) Senate Bill 968 — the PROTECT IP Act or “Internet Blacklist Bill” — would give the government the power to force Internet service providers, search engines, and other “information location tools” to block users’ access to sites that have been accused of copyright infringement — the initiation of a China-style censorship regime here in the United States.

3) It was reported last week that the Obama administration is facilitating a “three strikes” style deal between Internet Service Providers and intellectual property rights holders to reduce bandwidth and restrict web access to certain sites for users who have been accused of copyright infringement.

New bill upgrades unauthorized Internet streaming to a felony | Ars Technica

If the bill passes:

Online streamers can now face up to five years in prison and a fine in cases where:

  • They show 10 or more “public performances” by electronic means in any 180-day period and
  • The total retail value of those performances tops $2,500 or the cost of licensing such performances is greater than $5,000

Movie makers and theater owners support the bill.