Gaming cos.' lawyers accusing innocents in UK

From the BBC:

"Games firms are accusing innocent people of file-sharing as they crack down on pirates, a Which? Computing investigation has claimed.

The magazine was contacted by Gill and Ken Murdoch, from Scotland, who had been accused of sharing the game Race07 by makers Atari.

The couple told Which they had never played a computer game in their lives.

The case was dropped, but Which estimates that hundreds of others are in a similar situation...

According to Michael Coyle, an intellectual property solicitor with law firm Lawdit, more and more people are being wrongly identified as file-sharers.

He is pursuing 70 cases of people who claim to be wrongly accused of piracy and has spoken to "hundreds" of others, he told the BBC.

"Some of them are senior citizens who don't know what a game is, let alone the software that allows them to be shared," he said.

Most commonly problems arise when a pirate steals someone else's network connection by "piggybacking" on their unsecured wireless network, he said.

While prosecutors argue that users are legally required to secure their network, Mr Coyle dismisses this.

"There is no section of the Copyright Act which makes you secure your network although it is commonsense to do so," he said. "

These are precisely the kinds of cases that should but probably won't have a serious impact on efforts to introduce a 3 strikes regime, of the type some supporters claim the EU telecoms package will facilitate.

US Appeal Court rejects Bilski business method patent

From the Washington Post:

"A U.S. appeals court has rejected patenting a way to smooth energy costs in a closely watched decision that could narrow the scope of "business method" patents.

The case turned on whether an inventor can patent an abstract process, something that involves nothing more than thoughts, and was closely watched by software makers, Internet companies, investment houses and other businesses...

The high-profile case was heard by a 12-judge panel of the appeals court that specializes in patent matters.

"We hold that the applicants' process as claimed does not transform any article to a different state or thing," the majority opinion said.

"Purported transformations or manipulations simply of public or private legal obligations or relationships, business risks, or other such abstractions cannot meet the test because they are not physical objects or substances," added the opinion written by Chief Judge Paul Michel. Three judges dissented."

The majority have, however, practically invited the Supreme Court to review the decision:

"Thus, we recognize that the Supreme Court may ultimately decide to alter or perhaps even set aside this test to accommodate emerging technologies."

Are the RIAA about to be put on the back foot

Ray Beckerman (as always) has some interesting news on the RIAA's pursuit of tens of thousands of individuals. Two stories in particular I would draw your attention to are

"

Announcement from Harvard Law School Cyberlaw Students about SONY v. Tenenbaum

Received this interesting announcement from "CyberOne", the cyberlaw students at Harvard Law School, about SONY BMG Music v. Tenenbaum:

LEADING INTERNET LAWYER TO ARGUE COPYRIGHT THEFT DETERRENCE ACT UNCONSTITUTIONAL

Is the Constitution ready to embrace the reality of the Internet?

Cambridge, MA (October 2008) – The Recording Industry Association of America (RIAA) is in the process of bringing to bear the full might of its combined lobbying and litigating power. And one defendant, Joel Tenenbaum, is fighting back with the help of his mother, a leading copyright and internet lawyer, and a Harvard Law School cyberlaw class. What makes this counterclaim remarkable is not the legal tit-for-tat that is inherent in any contentious issue, but rather the fact that this legal team has taken its argument to the next level: constitutionality.

Joel is being threatened by the RIAA with punishment of more than a million dollars for downloading seven songs. Charles Nesson and his team of Harvard Law students are counterclaiming for abuse of process. They argue that the statute, which mandates damages of up to $150,000 for each willful download, is unconstitutional.

But is the Constitution ready to embrace the reality of Internet?

Nesson’s team alleges that the RIAA is abusing law and the civil process of the federal courts. “At its core this counterclaim raises a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” says Nesson. The counterclaim also alleges that the RIAA’s action in the name of “deterrence” constitutes an abuse of process used for the ulterior purpose of intimidating others by extreme example.

In the only previous situation in which an RIAA music-downloading case such as this has gone to trial, Chief Judge Michael Davis set aside a jury verdict of $221,000, declaring the statutory damage award to be “unprecedented and oppressive.”

Are there limits to how we deal with copyright in the age of ubiquitous information? And that’s exactly the question they hope the courts will finally address.

For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/.

###

CyberOne is a course for Harvard Law School students learning to make things happen in a cyber world. Projects include furthering work already ongoing, as well as new inspirations expressing our growing ability to use the tools of cyberspace to connect in creativity and peace. Professor Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and Founder of the Berkman Center for Internet & Society."

See also http://recordingindustryvspeople.blogspot.com/2008/10/prof-nesson-of-harvard-law-school-takes.html at Beckerman's blog and http://blogs.law.harvard.edu/cyberone/riaa/at Harvard's Berkman Center for more on this story.

The second really interesting development is that one of the judges who has been leaning in the RIAA's favour for the past 5 years has apparently told them off for acting unethically.

"

Judge Gertner admonishes RIAA lawyers to stop 'bankrupting' pro se defendants with 'formalities' in Boston consolidated cases

Thanks to a friend of our blog, who sent me this transcript.

In the massive consolidated Boston case, termed London-Sire v. Does 1-4, where Judge Nancy Gertner has been presiding over 5 years worth of default judgments and forced settlements, we have learned that the Judge held a conference on June 17th covering a number of the cases.

The RIAA lawyers were present.

No lawyers were present for any of the defendants.

A few of the defendants were in the courtroom, but without lawyers representing them.

Among the remarks made by Judge Gertner:

-"There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources." page 8

-"The law is ... overwhelmingly on their [the record companies'] side." page 8

-"Sometimes they answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there's a negotiated settlement..." page 9

-"It simply doesn't make sense to fight them as an individual, [pro] se..." page 9

-"...counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." page 11

Transcript of June 17, 2008, conference attended by RIAA lawyers and pro se defendants

[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]"

Copyright term extension again

Lionel Bently, Martin Kretschmer, Bernt Hugenholtz and co. are continuing their efforts to expose members of the EU parliament to some common sense thinking on copyright term extension.

"Copyright Extension for Sound Recordings: New joint statement (27 Oct)

In order to assist public debate of the Commission's proposed directive "amending the term of protection of copyright and certain related rights" (COM(2008) 464/3, European academics have prepared another joint open statement. It has been sent to Members of the European Parliament who are currently considering the proposal.

Cover letter (pdf - 278kb) >>
Joint statement (pdf - 281kb) >>

The Proposed Directive for a Copyright Term Extension

Dear [MEP]

We are independent lawyers, economists and music researchers, representing the leading European intellectual property research centres. We unanimously condemn the Commission's proposed directive "amending the term of protection of copyright and certain related rights" (COM(2008) 464/3) as one of the worst examples of special interest pleading. The proposed directive will seriously damage European innovation and creative endeavour.

The Commission is trying to persuade policy makers that copyright extension is cost free. In its Impact Assessment [IA] the Commission claims that consumer prices for sound recordings will not increase, nor will licence fees paid by broadcasters, clubs and restaurants for so-called "air play" [IA, p. 40].

At the same time the Commission claims that extension will deliver benefits to the music industry between "€ 44 million and € 843 million" [IA, p. 60]. Where is that money coming from? The costs have to be borne somewhere. It is shocking that the Commission can fail to acknowledge this basic economic truth. Any serious impact assessment should at least have to answer the simple question: Who is going to pay?

Instead of doing their economic homework, the Commission offers a misleading story about performers facing "an income gap at the end of their lifetimes" [Explanatory Memorandum to Proposed Directive, p. 4; Press releases 14 February 2008 and 16 July 2008]. The language of "artists who lose their pension when they need it most" is copied directly from lobby documents supplied to the Commission by the record industry. Extension is then dressed up as a "social measure".

The most cursory analysis will show that nothing could be further from the truth. Under the current 50 year term, a track recorded when a performer was 25 will be protected until age 75. If the artist continued recording throughout her performing life, the current term will most likely outlast the performer's lifespan. Not a single artist has a life expectancy of 45 years at age 75 – yet this is the extension the Commission proposes. If the Commission really wanted to help performers, it would (i) limit the term to the artist's life, (ii) make such a term not available to record producers (labels), and (iii) look at recording contracts during the existing term. Any independent assessment will show the "ageing performers" argument as a smoke screen.

The chief beneficiaries from extension are:

1. Major rightholder who control a back catalogue of records that reaches back further than 50 years. The four major multinational record companies Universal, Sony BMG, Warner Music and EMI own almost all the key records that would benefit from retrospective extension.

2. Best-selling artists such as Cliff Richard, Johnny Hallyday, and their future estates. Is channelling money to estates a productive measure?

3. Collecting societies who will process increased income either from airplay or a social fund (and take a commission for it).

4. Minor beneficiaries are ordinary working performers. The bottom 80% of performers would each receive between € 4 and € 58 a year (calculation based on Commission's own figures). Some of these benefits however come at the costs of younger performers just entering the profession, as the same pot of money will have to be shared by more artists, many of whom are or will be dead.

The contrast between marginal benefits to ordinary performers, and huge benefits to multinational producers is stark. The costs of copyright extension will be borne by European society as a whole through higher prices and licence fees, stymied innovation, and hindered diversity.

In order to facilitate informed democratic debate, we have prepared

- specific independent responses to the Commission's Frequently Asked Questions template

- 4 page analysis of key economic data

- a list of academic submissions opposing term extension

On behalf of the signatories given below:

Professor Martin Kretschmer, Centre for Intellectual Property Policy & Management (CIPPM), Bournemouth University

Professor Lionel Bently and Dr Rufus Pollock, Centre for Intellectual Property & Information Law (CIPIL), University of Cambridge

Professor Reto Hilty, Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich

Professor Bernt Hugenholtz, Institute for Information Law, University of Amsterdam"

Excuse me repeating some of the key parts of that but they bear repeating:

"The most cursory analysis will show that nothing could be further from the truth. Under the current 50 year term, a track recorded when a performer was 25 will be protected until age 75. If the artist continued recording throughout her performing life, the current term will most likely outlast the performer's lifespan. Not a single artist has a life expectancy of 45 years at age 75 – yet this is the extension the Commission proposes. If the Commission really wanted to help performers, it would (i) limit the term to the artist's life, (ii) make such a term not available to record producers (labels), and (iii) look at recording contracts during the existing term. Any independent assessment will show the "ageing performers" argument as a smoke screen.

The chief beneficiaries from extension are:

1. Major rightholder who control a back catalogue of records that reaches back further than 50 years. The four major multinational record companies Universal, Sony BMG, Warner Music and EMI own almost all the key records that would benefit from retrospective extension.

2. Best-selling artists such as Cliff Richard, Johnny Hallyday, and their future estates. Is channelling money to estates a productive measure?

3. Collecting societies who will process increased income either from airplay or a social fund (and take a commission for it).

4. Minor beneficiaries are ordinary working performers. The bottom 80% of performers would each receive between € 4 and € 58 a year (calculation based on Commission's own figures). Some of these benefits however come at the costs of younger performers just entering the profession, as the same pot of money will have to be shared by more artists, many of whom are or will be dead.

The contrast between marginal benefits to ordinary performers, and huge benefits to multinational producers is stark. The costs of copyright extension will be borne by European society as a whole through higher prices and licence fees, stymied innovation, and hindered diversity."

Thanks to Mark Rogers, one of the wider working party and signatories, for the pointer. Read, inwardly digest and repeat to anyone prepared to listen.

Some interesting IP audio files on Cablevision and TRIPS

Doug Lichtman of UCLA Law School has just launched the Intellectual Property Colloquim,

"an online audio program devoted to intellectual property topics. We aspire to be something like an NPR talk show, but focused on copyrights and patents, and aimed primarily at a legal audience. The programs are neither lectures nor debates. They are conversations, ideally thoughtful ones, with guests drawn from academia, the entertainment community, and the various technology industries."

The first programme is a conversation with Fred Von Lohmann of the EFF. Von Lohmann starts with his insights on the recent Cablevision case and their follows a lively, entertaining and informative discussion on same. The case turned on whether Cablevision were infringing copyright by enabling viewers to record TV show's remotely - storing the programme on Cablevision's servers for later viewing. The court at first instance held the company liable for infringing copyright. The 2nd circuit court of appeal overturned that decision essentially saying it was the viewer who recorded the programme not the company which was merely an intermediary. I didn't get the chance to discuss the case here at the time of the decision but it throws up all kinds of interesting issues.

Also worth devoting some time to is Daniel Gervais's Fourth Annual Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Distinguished Lecture on Intellectual Property (webcast here). Gervais is one of the world's foremost authorities on the WTO's TRIPS agreement and explains how TRIPS came to be and how a simplistic one-size-fits all approach to intellectual property doesn't work.

Quote of the day

"Never give in. Never give in. Never, never, never, never - in nothing, great or small, large or petty - never give in, except to convictions of honour and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy." Winston Churchill, 29 October, 1941.

Google settle with Authors Guild

From CNet: Google has reached a settlement with the Authors' Guild over the Google Book search project.

"Google will be paying authors and publishers $125 million as part of a settlement agreement that resolves a suit against its Google Book Search initiative, the Authors Guild and a group of publishers announced Tuesday.

The settlement enables authors and publishers to receive compensation for online access to their works.

Paul Aiken, executive director of the Authors Guild, called the settlement "the biggest book deal in U.S. publishing history."

Google is digitizing the works from many major libraries, including the New York Public Library and the libraries at Stanford and and Harvard universities, and is making those texts searchable on pages with advertisements. The Authors Guild, which represents more than 8,000 authors, sued Google in September 2005, alleging that the company's digitizing initiative amounted to "massive" copyright infringement. Five large publishers filed a separate lawsuit as representatives of the Association of American Publishers.

Under the terms of the settlement, Google has agreed to pay the authors and publishers $125 million. It will also be responsible for selling access to copyrighted works in its repository. Most of the revenues from such access would go to the authors and publishers."

Belgian ISP wins reprieve in SABAM copyright case

From Out-law:

"A Belgian internet service provider that had been ordered by the courts to filter out copyright-infringing material from its network has won a court reprieve. It will not have to pay the €750,000 in fines that have built up over the past year.

Scarlet was told by a Belgian court last year that it must filter out copyright-infringing activity carried out by users of its network. It was ordered to pay a €2,500 fine for every day that it did not comply with the order.

That fine has now reached €750,000 but a Brussels court has accepted Scarlet's argument that the kind of filtering ordered by the courts is impossible, according to Belgian news outlet The Standard.

The court case was originally brought by Belgian authors' rights group SABAM, which claimed that the ISP bore some responsibility for the unlawful sharing of material over peer to peer (P2P) networks on the internet.

It won a ruling from the court that Scarlet did bear some responsibility, and that it should use technical filters to weed out infringing traffic on penalty of a daily fine."

The original decision to hold Scarlet liable had been warmly welcomed by the music industry and touted round the world as a model approach. So it is unlikely that this reversal will go down too well with the IFPI, BPI and RIAA and co. Scarlet are continuing to pursue a wider appeal against the original decision, saying that compliance with the provisions would involve the ISP in breaking Belgian wiretap laws.

Update: TJ McIntyre has reminded me of the Irish re-run of this case, EMI and co. v Eircom, coming to the High Court in Dublin very soon.

Turkey bans blogger.com

Looks like my readers in Turkey (even though they be few in number) will be having problems getting b2fxxx now. Unlike the Aussies, whose great firewall will probably be tripping over the triple x, the Turks have instigated a blanket ban on all things blogger.

"Following the censorship of YouTube, now the widely used site blogger.com has been shut down, reported daily Radikal yesterday. The censorship decision was made by the Diyarbakır Penal Court on Oct. 20. Together with blogger.com, the site's extension blogspot.com is also not going to be reachable by users in Turkey."

Jenkins farewell plea to MPs: defend liberty

Simon Jenkins' column in this morning's Sunday Times is well worth five minutes of your time.

"Is Jacqui Smith, the home secretary, a pocket dictator? Is there no drop of liberalism in her veins, no concept of personal freedom, no fear of a repressive state? Or is she just another home secretary? This month she apparently felt obliged by dark forces beyond her control to add another weapon to the armoury of illiberal power. She wants to record at her Cheltenham communications headquarters every mobile phone call, text and internet message of every Briton living. This is close to madness...

Since 9/11 there has sprung into being a war-on-terror version of the “military-industrial complex”, against which Eisenhower warned Americans as the cold war developed in the 1950s. The complex roams seminars and think tanks with blood-curdling accounts of what Osama Bin Laden is planning. Visitors need go no further than the biennial defence sales exhibition in London’s Docklands to see Eisenhower’s monsters on parade. They feed on the politics of fear, a leitmotif of this government. The entire nation is regarded as under suspicion.

Never was the adage of Louis Brandeis, the US justice, more relevant: free men are naturally alert to the wiles of evil-minded rulers but “the greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding”...

Each new repressive law is abused, sometimes blatantly. This month Gordon Brown used the 2005 antiterror law to seize the assets of Icelandic banks, an outrage that passed without protest from parliament or the courts. The same law has been used by local authorities to monitor school catchment areas and rubbish disposal. When ministers take untrammelled power, they lie...

The war on terror has been a wretched blind alley in British political history. It has revealed all that is worst in British government – its authoritarianism, its sloppiness and its unaccountability. Yet restoring the status quo ante will be phenomenally hard.

In all my years of writing this column, from which I am standing down, I have been amazed at the spinelessness of Britain’s elected representatives in defending liberty and protesting against state arrogance. They appear as parties to the conspiracy of power. There have been outspoken judges, outspoken peers, even outspoken journalists. There have been few outspoken MPs. Those supposedly defending freedom are whipped into obedience. I find this ominous."