copyright: August 2007 Archives
The Computer and Communications Industry Association (a group of tech companies including Microsoft, Google, et al) has filed a formal complaint with the US Fair Trade Commission, over "years of consumer deception" in the form of misleading and deceptive copyright warnings from major copyright holders.
Some examples of the types of warnings in issue here include:
The consequences for disregarding these warnings can be severe:
The complaint alleges that the copyright holders:
Some examples of the types of warnings in issue here include:
NFL warning: (this clip was, itself, ironically, the subject of a DMCA takedown notice from the NFL)
Sterling Mets warning:
Commissioner of Baseball warning:
The consequences for disregarding these warnings can be severe:
The complaint alleges that the copyright holders:
have engaged, and continue to engage in, a nationwide pattern of unfair and deceptive trade practices by misrepresenting consumer rights under copyright law, and in some cases threatening criminal and civil penalties against consumers who choose to exercise statutorily or Constitutionally guaranteed rights. These false representations violate the letter and spirit of the Federal Trade Commission Act's prohibition against unfair or deceptive acts or practices in or affecting commerce.Other articles on this topic are here and here. [For nytimes.com username and password, use bugmenot.com]
Slashdot have a story concerning a major outage in the "Windows Genuine Advantage" servers. This outage resulted in a large number of genuine, legitimate installations of Microsoft Windows products incorrectly identifying themselves as "non-genuine" with a subsequent lessening of functionality [see e.g. this or this] -- presumably to encourage those damn dirty software pirates to buy a copy of the real thing. Even though they already had.
Microsoft have dropped the ball on this one. Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction. No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.
If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.
Microsoft have dropped the ball on this one. Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction. No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.
If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.
Resale Price Maintenance (RPM) is, in a nutshell, a supplier imposing on its customers a minimum price at which they may resell goods or services acquired from the supplier. The result of RPM is to reduce or eliminate price-based competition in the retail market for the goods or services in question. This harms consumers, because they will be forced to pay higher prices than they would pay in a competitive market.
In Australia, RPM is per se unlawful under s 48 of the Trade Practices Act 1974 (and what actually constitutes RPM is defined in Part VIII). In the USA, RPM has been per se unlawful since the 1911 Supreme Court decision in Dr. Miles Medical Co. v. John D. Park and Sons. The rationale for the per se rule is that RPM (and other practices proscribed per se) always or almost always restrict competition, so it is unnecessary to evaluate each case.
There are economic arguments as to why RPM is not, or is not always, anti-competitive. I don't subscribe to those economic theories -- in my view, the harm to consumers from the elimination of competition on price will not be offset by the benefits to consumers and the public that are claimed to result from RPM. Where a supplier can substantiate the benefit to the public that would be created by RPM, and and those benefits outweigh the harm, they can apply to the ACCC for an authorisation to engage in RPM under s 88(8A) of the TPA.
In June this year, the US Supreme Court drank the economic kool-aid (in a 5:4 split) and reversed Dr Miles Medical Co in Leegin Creative Leather Products v PSKS Inc, holding that RPM did not always or almost always restrict competition, and therefore did not meet the criteria for per se illegality, and would instead be evaluated under the rule of reason approach -- that is, each case would be evaluated on its merits to determine whether the net effect was to lessen competition or not.
In Australia, RPM is per se unlawful under s 48 of the Trade Practices Act 1974 (and what actually constitutes RPM is defined in Part VIII). In the USA, RPM has been per se unlawful since the 1911 Supreme Court decision in Dr. Miles Medical Co. v. John D. Park and Sons. The rationale for the per se rule is that RPM (and other practices proscribed per se) always or almost always restrict competition, so it is unnecessary to evaluate each case.
There are economic arguments as to why RPM is not, or is not always, anti-competitive. I don't subscribe to those economic theories -- in my view, the harm to consumers from the elimination of competition on price will not be offset by the benefits to consumers and the public that are claimed to result from RPM. Where a supplier can substantiate the benefit to the public that would be created by RPM, and and those benefits outweigh the harm, they can apply to the ACCC for an authorisation to engage in RPM under s 88(8A) of the TPA.
In June this year, the US Supreme Court drank the economic kool-aid (in a 5:4 split) and reversed Dr Miles Medical Co in Leegin Creative Leather Products v PSKS Inc, holding that RPM did not always or almost always restrict competition, and therefore did not meet the criteria for per se illegality, and would instead be evaluated under the rule of reason approach -- that is, each case would be evaluated on its merits to determine whether the net effect was to lessen competition or not.
Continue reading Resale Price Maintenance and eBay.
Slashdot reports that a website, whyfirefoxisblocked.com, is trying to start a campaign to block all users of the Firefox web browser from accessing websites. Why? Because Firefox supports an extremely useful plug-in by the name of Adblock Plus, which as the name suggests, allows users to block advertising from websites.
Why is this bad? According to whyfirefoxisblocked.com:
In a 2002 interview with Jamie Kellner, chairman and CEO of Turner Broadcasting (a company that controls a number of cable TV channels, including CNN, and a part of Time Warner) said that the increasing penetration of PVRs (Personal Video Recorders, e.g. Tivo, many of which allow you to skip advertising) was not good for his industry. When asked why, he responded:
The whyfirefoxisblocked.com page links to a brief but interesting blog posting suggesting that blocking advertising is an infringement of copyright, and that the makers of Adblock Plus could be liable for contributory infringement. Yet another issue to explore in a future blog posting...
Why is this bad? According to whyfirefoxisblocked.com:
- blocking advertising "is an infringement of the rights of web site owners and developers";
- website operators have the right to insist that users of their website view advertising;
- accessing those websites while blocking the ads is "no less than stealing";
- blanket ad-blocking is "theft";
- the makers of Adblock Plus "refuse to allow website owners control over their own intellectual property";
- etc
In a 2002 interview with Jamie Kellner, chairman and CEO of Turner Broadcasting (a company that controls a number of cable TV channels, including CNN, and a part of Time Warner) said that the increasing penetration of PVRs (Personal Video Recorders, e.g. Tivo, many of which allow you to skip advertising) was not good for his industry. When asked why, he responded:
Because of the ad skips.... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.Everything old is new again. It will be interesting to see if this campaign gains any serious traction. It could just be a troll. In any case, the technical countermeasures that they suggest site owners take could be trivially circumvented. I wonder if they will then rely on the anti-circumvention provisions of the DMCA to help their cause? If this campaign is serious, and spreads, it could lead to a real copyright bunfight.
The whyfirefoxisblocked.com page links to a brief but interesting blog posting suggesting that blocking advertising is an infringement of copyright, and that the makers of Adblock Plus could be liable for contributory infringement. Yet another issue to explore in a future blog posting...
The Commonwealth Attorney-General Phillip Ruddock has issued a press release (not yet available online) as follows:
ACTION ON ALLEGED FILM PIRACY OF THE SIMPSONS
An investigation in relation to alleged piracy of The Simpsons Movie, demonstrates the Government is serious about protecting creative works Attorney-General Philip Ruddock said today.
Mr Ruddock said the government recently made significant changes to copyright laws introducing a range of measures including the ability to track and recover proceeds of serious copyright crimes, and strengthening evidential presumptions in copyright proceedings.
"Australia has been at the forefront of copyright law reform to ensure that law enforcement and industry have the necessary tools to tackle piracy at all levels", Mr Ruddock said.
"To support the legislative changes, the Government has provided the Australian Federal Police and the Commonwealth DPP with $12.4 million over two years, for investigating and prosecuting serious and complex intellectual property crime, and to pursue proceeds of such crimes."
"Film piracy doesn't only hurt Hollywood, it hurts Australia's film makers, businesses, workers and consumers," Mr Ruddock said.
A search warrant was executed in Sydney yesterday by the AFP following the receipt of information from the Australian Federation Against Copyright Theft (AFACT). As a result a 21 year old man will appear in a Sydney court in October.
If any member of the public has any information related to copyright piracy, they should contact the Australian Federal Police or their local State police.
Note: AFACT has a nationwide 24 hours a day hotline that enables the reporting of film copyright theft: 1800 251 996 and an email contact facility through http://www.moviepiracy.org.au
I take issue with a number of claims made by Mr Ruddock. Setting aside the changes in relation to evidential presumptions (I think it safe to assume that 20th Century Fox would have little difficulty establishing that they own the copyright which subsists in the cinematograph film in question) and the tracing of proceeds (I think it safe to assume that there are none in this case), let's compare the "new" criminal offences with the "old" criminal offences and see whether Mr Ruddock's "significant changes" would make any difference to how this case plays out.
Continue reading Ruddock on Simpsons bootlegging and recent criminal copyright changes.
News.com.au reports that a Sydney man is facing criminal charges because he allegedly made a "boot-leg" recording of the Simpsons movie using a mobile phone, and then uploaded it to "a US global streaming website" - whatever that means. I'm guessing they're referring to Bittorrent or some other P2P technology; "youtube" having entered the popular lexicon, if the bootleg had been put on youtube, I imagine they would have just said so.
The Australian Federal Police are said to have confirmed that they searched the man's house "in relation to allegations of criminal breaches of intellectual property law." The article reports that computer equipment was siezed and that the man faces "charges related to distributing and infringing copyright material and possessing a device for doing so."
This article raises a number of interesting issues...
How did AFACT (the "Australian Federation Against Copyright Theft") and/or the police identify this individual as the alleged uploader? Even if they had his IP address, it could have been anyone in his household or with access to his computer that allegedly uploaded the bootleg copy.
Why are the "infringement notice" provisions that were introduced last year not being used in this case? It could be that the "guidelines" for enforcement of those provisions have not yet been made (or, at least, published), but I'm guessing that AFACT and the relevant copyright holders want to throw the proverbial book at this individual. An infringement notice would only allow for a fine of $1320 and forfeiture of the hardware involved in the infringement. By using the indictable offence provisions, the maximum penalty is 5 years jail, or a fine of $60,500, or both.
Given that AFACT appear to be scapegoating this individual as being responsible for all online "piracy" of the Simpsons movie, I imagine that they will be pushing for serious jail time. It will be interesting to see if there is a repeat of the events in the "mp3wmaland" case, a criminal prosecution of three university students in Sydney in 2003. In that case, counsel representing the copyright holders sought to make submissions on sentencing, and to recover the costs of their privately-conducted investigation from the defendants - and were soundly rebuffed by the court. The defendants in that case received significant -- but suspended -- jail terms, leading the then-head of MIPI ("Music Industry Piracy Investigations") Michael Speck to describe the judgment as "banana republic stuff".
It is also interesting that (if the news.com.au article is correct), the individual under investigation faces an additional charge for possessing a "device". The untested device provisions in s 132AL of the Copyright Act 1968 were controversial when introduced, and are farcically over-broad. I find it bizarre that possession of a mobile phone with intent to use it to infringe copyright should be a criminal offence punishable by 5 years imprisonment. It's not as though it was equipment designed specifically for producing infringing copies. Section 132AL will no doubt feel my wrath in a future posting.
I'll be watching this case with interest.
[Update: The Sydney Morning Herald now has a story on this issue, and AFACT have a press release [.doc file] online.]
The Australian Federal Police are said to have confirmed that they searched the man's house "in relation to allegations of criminal breaches of intellectual property law." The article reports that computer equipment was siezed and that the man faces "charges related to distributing and infringing copyright material and possessing a device for doing so."
This article raises a number of interesting issues...
How did AFACT (the "Australian Federation Against Copyright Theft") and/or the police identify this individual as the alleged uploader? Even if they had his IP address, it could have been anyone in his household or with access to his computer that allegedly uploaded the bootleg copy.
Why are the "infringement notice" provisions that were introduced last year not being used in this case? It could be that the "guidelines" for enforcement of those provisions have not yet been made (or, at least, published), but I'm guessing that AFACT and the relevant copyright holders want to throw the proverbial book at this individual. An infringement notice would only allow for a fine of $1320 and forfeiture of the hardware involved in the infringement. By using the indictable offence provisions, the maximum penalty is 5 years jail, or a fine of $60,500, or both.
Given that AFACT appear to be scapegoating this individual as being responsible for all online "piracy" of the Simpsons movie, I imagine that they will be pushing for serious jail time. It will be interesting to see if there is a repeat of the events in the "mp3wmaland" case, a criminal prosecution of three university students in Sydney in 2003. In that case, counsel representing the copyright holders sought to make submissions on sentencing, and to recover the costs of their privately-conducted investigation from the defendants - and were soundly rebuffed by the court. The defendants in that case received significant -- but suspended -- jail terms, leading the then-head of MIPI ("Music Industry Piracy Investigations") Michael Speck to describe the judgment as "banana republic stuff".
It is also interesting that (if the news.com.au article is correct), the individual under investigation faces an additional charge for possessing a "device". The untested device provisions in s 132AL of the Copyright Act 1968 were controversial when introduced, and are farcically over-broad. I find it bizarre that possession of a mobile phone with intent to use it to infringe copyright should be a criminal offence punishable by 5 years imprisonment. It's not as though it was equipment designed specifically for producing infringing copies. Section 132AL will no doubt feel my wrath in a future posting.
I'll be watching this case with interest.
[Update: The Sydney Morning Herald now has a story on this issue, and AFACT have a press release [.doc file] online.]
