by Ellen Seidler | Copyright, Film, Law, Music, Piracy, Politics, Tech
Derek Khanna first came to public notice in 2012 after writing a lopsided anti-copyright “policy brief” for Republican Study Committee called “Three Myths About Copyright Law and Where to Start to Fix It.” A day after the document was released it was withdrawn and Khanna lost his job at the end of the 112th Congress. He blamed wealthy donors in the “entertainment industry” for his dismissal and quickly became a martyr for the anti-copyright cause. He ended up at as Yale Law Fellow with the Information Society Project.
Unfortunately, like many of those in the legal field who are working to undermine creator’s rights, Mr. Khanna speaks from a decidedly one-sided perspective in penning a piece for today’s Washington Post that ominously warns that “Hollywood should not decide our copyright laws.” Aside from selecting a splashy but lazy (and inaccurate) headline for his piece, he conveniently ignored the (Tech) elephant in the room when he wrote, ” Last year’s defeat of the Stop Online Piracy Act (SOPA) caused industry groups to intensify their lobbying efforts. And they haven’t been subtle about it.” Sure, television and motion picture interests have increased their presence in Washington, but then so has “Big Tech.”
May I remind you that the reality of the anti-SOPA uprising was in large part a result of a deliberate (and well-funded) astro-turf campaign managed by the big guns of tech (Google, et al) to gin up the public. How hard is it to get the internet in a spin when you’re in control of its major gateways? Certainly there was room for open discussion about the Stop Online Piracy Act and possible revisions to improve it, but the option for an open debate was quickly overwhelmed by an online avalanche of protest. Never mind that the majority of those who Tweeted or posted condemnations on Facebook hadn’t actually read the bill. For them all that was required was a mendacious meme that SOPA would “break the internet” and do away with “free speech” online.
It’s also worth noting that Mr. Khanna’s current employer (the Yale Law Information Society Project) receives some of its funding from Google–a company not exactly known for its love of present copyright law.
I do agree with one thing Khanna wrote in his post piece:
So in its deliberations, Goodlatte’s committee should ensure that Hollywood isn’t the only voice at the table. Both content creators and innovators desperately want to see copyright reform.
However, after that non-controversial statement it all goes downhill, quickly as Mr. Khanna gives readers a list of examples that, to him, demonstrate why copyright law is bad for creators and industry innovators alike. Why’s that a problem? Well, it’s a problem because, as is often the case with the copy-left, he doesn’t see fit to talk to tell the full story as to how crucial copyright protection is for those whose livelihoods depend on content creation. Khanna lists Hank Shocklee of Public Enemy, as an example of an artist constrained by current copyright law, but fails to mention that while Shocklee is a musician, he’s known for work often derived from sampling the work of others. His situation is not exactly representative of all artists, musical or otherwise, who have a stake in this debate.
Why not talk to some 45% of professional musicians who are no longer working in large part because our current copyright law is flouted by today’s digital pirate profiteers? Why not make mention of the independent filmmakers whose innovations are routinely stolen and monetized by bootleggers and online thieves?
Mr. Khanna also drones on in typical fashion about the DMCA. Yes, it’s an outdated law, but not for the reason he states. It’s outdated because it’s unworkable for creators, small and large, because its “safe harbor” provisions make protecting one’s content from pirate profiteers nearly impossible. He closes his piece by saying:
We can craft a system of copyright that compensates rights holders and incentivizes innovation for start-ups and new artists. It is not an either or proposition. But we’ll only get a balanced copyright system if Congress hears from a broad range of voices. It can’t just be special interests controlling the debate, writing the amendments in backrooms, and writing big checks to members of Congress.
True enough, BUT please remember that artists ARE innovators and that the tech industry represents a big “special interest.” Next time hearings are held in Washington let’s hope that a diversity of creator’s voices is heard rather than a panel of legal theorists–and if he writes about copyright reform again, perhaps Mr. Khanna would be wise take the same “balanced” approach he’s suggesting for members of Congress.
by Ellen Seidler | Copyright, Piracy, Tech
Last week Nintendo began notifying YouTube users that had uploaded content containing footage from its games that it would be claiming the videos for purposes of monetization. It’s fairly routine on YouTube for content owners like musicians and movie companies to claim and monetize user uploaded content which they own the rights to.
In a statement released via Game Front Nintendo officials explained their rationale this way:
As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.
For more information please visit http://www.youtube.com/yt/copyright/faq.html
For those familiar with YouTube’s Content ID system (explained in an earlier blog post) Nintendo’s position doesn’t seem far-fetched. However, for many Nintendo fans who earn money off uploaded excerpts of their Nintendo-based “let’s play” game scenarios to YouTube, the news was met with outrage. The Game Front story linked to a Facebook post by Zack Scott, a YouTube user impacted by Nintendo’s move. Scott wrote:
With that said, I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?
Now, while it is true that each gamer controls the game, it’s hard to get around the fact that the game infrastructure, graphics, characters, etc. is all owned by Nintendo. Just because one can make the game scenarios play out according to a player’s choices does not appear to trump this truth, at least not in legal terms.
For a legal perspective on Nintendo’s move I asked Terry Hart, who blogs at Copyhype and serves as Director of Legal Policy at the Copyright Alliance, for his opinion:
You are correct in that Nintendo has legal grounds to claim “Let’s Play” videos. In Red Baron-Franklin Park v. Taito Corp. (1989), the Fourth Circuit held that the operation of a video game in a public place is a public performance, one of the exclusive rights of a copyright owner. Congress added an exception to the public performance right the following year to reverse the decision (17 U.S.C. § 109(e)), but the exception applies only to “electronic audiovisual game[s] intended for use in coin-operated equipment.” Any operation of a video game to the public outside that exception is a public performance, and this would include a performance made via a site like YouTube.
For their part, gamers also argue that Nintendo will lose fans (and market share) by making such a move, but that threat seems overblown. Nintendo is not blocking the videos. Gamers will still be allowed to upload their game footage (and commentary) but it will be Nintendo–not the uploader–who reaps the financial reward.
On YouTube you’ll find any number of video/music mash-ups monetized by the artists (Justin Bieber, One Direction, Kelly Clarkson, etc.) and distributors that own or license the content. Few argue with that. Why should Nintendo-generated fan content be any different?
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YouTube has remained mum so far. They pocket their share of the ad revenue either way so it’s a wash for their bottom line.There are YouTube users who try to make money by uploading and monetizing content (like movie trailers) owned by others, but they have no legal leg to stand on. Some argue, like the gamers have, that the uploads generate more “exposure” for the content, but its an argument that falls flat. If you don’t own the material, you don’t have a right to make money off it
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by Ellen Seidler | Music, Piracy
I want my favorite musicians making music, not raising funds so that they can
Today I received an email from one of my favorite indie bands, Saucy Monky, announcing Part 2 of their Trophy Girl EP series and asking for support to raise funds for the effort via their fundraising page at the crowd-source funding site GoFundMe.com. Their pitch is straightforward, describing the project and the perks/rewards for each donation level. These days I’m sure there are dozens of indie musicians launching similar crowd-funding campaigns every day, but what really struck me about their email was this:
Here are a few things you may or may not know about today’s music business. The convenience of Spotify and Pandora are incredible. We personally LOVE these sites. However, for our entire catalogue, which everyone can listen to for free – anytime, we get paid a few cents a month. Lady Gaga’s “Poker Face” garnered one million plays on Spotify and earned just $167!
Thankfully, people still buy digital downloads on iTunes, but this new movement isn’t the best news for self-financed acts. We used to sell tons of hard copy CD’s on CDBaby.com. Now, no-one buys CD’s online anymore. Only at shows. And that leads to touring costs… bla bla bla. You get the picture.
What we would love to do in return for any contribution, is give something back to you. We’d like to give you something for every penny we earn. All of the exclusives are listed on this site and also on our website
When I asked Annmarie for clarification on the comment “We personally LOVE these sites” [Spotify and Pandora] she explained:
I love them as a music lover (being able to listen to anything i want), I hate them as a musician coz i can’t make a dime!
Forgive me, but while crowd-source campaigns have their place, can’t we as fans (and consumers) hope for a system that provides musicians (and other creators) with the means to make a decent living from their work rather than have to resort to constant fundraising efforts in order to sustain it? I don’t need Saucy Monky to “give something back” to me….they’ve given me, and continue to give me, their music (which I’m happy to pay for). They, and all the other musicians out there, shouldn’t have to do cartwheels and promise me things every time they want to produce a new album. Their music is the only goody I want.
Somewhere along the way our system got so broken that the true value of the creations we enjoy got lost amid a squabble over whether it was valuable. Of course it’s valuable–and it’s valuable in ways that go far beyond dollars and cents. Unfortunately it’s not free–in terms of those same dollars and cents–to actually create most things we value.
Allow me to reference a fundamental concept I learned in my high school economics class–and that is that everything has cost associated with it–even our time. As such, is it too much for musicians to ask that their time be compensated in some fashion, or should we demand that creating quality music be an all-volunteer endeavor? Some seem to feel the latter option is A-OK, but I doubt those same individuals would be happy not being paid for the work that they do. Note that even a if one’s art is truly a “labor of love” it’s a love that does involve labor.
This discussion shouldn’t be framed as artist versus consumer. Doesn’t everyone share a common interest in providing a sustainable and robust eco-system that can support musicians and nurture their growth? Such a system could offer a greater diversity in choices as to how, and what, we creative products we enjoy. Why can’t the innovators in tech align with the innovators in music to offer the public and option where both sides profit? Can’t we develop distribution methods that satisfy the consumer and the artist? These aren’t goals that need be mutually exclusive. Step one is valuing the musicians who make the music.
As for Saucy Monky? Well, I’ll be making my donation to help ensure that there will be a Part 2 of Trophy Girl, but I won’t give up on the hope that someday in the near future, the band can just do what they do best–give up their full-time day jobs and their part-time work as fundraisers–and focus on making more music for everyone to enjoy.
Here’s their fundraising message in full:
| Saucy Monky News May 2013 |
 Hi Everyone!As you know, the music business days of huge record deals & publishing advances are long gone. Nowadays, bands & artists survive through the love of their fan base, their friends, and believers in their music, using fundraising sites such as Pledgemusic, Kickstarter and Gofundme.comWe are about to release Part 2 of our Trophy Girl Series, worldwide on June 25th! Once again, we had an amazing opportunity to make a (soon to be released) video for our new single “Do I have Your Attention?” with emerging filmmaker Justin Birquist from In Vitro Films! We need your help in raising funds to cover costs for the filming process, the mastering of the record, and once again, hiring our PR company to help us promote and market these amazing assets (of which we are so proud!).So we are back with more fun fundraising exclusives! Please considering purchasing one of them so we can hire a publicity team to promote our upcoming new release TROPHY GIRL Part 2. Here’s a sample of what we have on offer:1. Karma $5 Donation For An Om Chant In Your Honor2. Saucy Monky will entertain you and your friends in your very own living room! 3. We will send you a lipstick kissed poster!4. We will sing Happy Birthday to your loved one on video.5. Buy an advance download of our EP before it’s released6. Annmarie and Cynthia will be your Tour Guides in LA8. Join Annmarie and Steve for a fun night in Vegas!!9. Saucy Monky will record and produce your song.
10. Get a thank you credit on our Full Length release
Click Here To Go Directly To Our Fundraising Site (and listen to a snippet of “DO I HAVE YOUR ATTENTION?”)
Thanks to you guys and our fundraising campaign last year, we were able to finance an amazing video (“AWKWARD”) and release the first part of our Trophy Girl collection with the help of a few amazing publicists & PR companies. Boy, did it make a HUGE difference. “AWKWARD” now has 27,500 and counting views. This is an incredible achievement for an indie band on the rise. We have had reviews and write-ups in dozens of US publications, internet mags, and music sites abroad. Including the Advocate, NME, Glaad, Autostraddle, HotPress and many more. We even ended up on Playboy radio, and the Kato Kaelin show!
Here are a few things you may or may not know about today’s music business. The convenience of Spotify and Pandora are incredible. We personally LOVE these sites. However, for our entire catalogue, which everyone can listen to for free – anytime, we get paid a few cents a month. Lady Gaga’s “Poker Face” garnered one million plays on Spotify and earned just $167!
Thankfully, people still buy digital downloads on iTunes, but this new movement isn’t the best news for self-financed acts. We used to sell tons of hard copy CD’s on CDBaby.com. Now, no-one buys CD’s online anymore. Only at shows. And that leads to touring costs… bla bla bla. You get the picture.
What we would love to do in return for any contribution, is give something back to you. We’d like to give you something for every penny we earn. All of the exclusives are listed on this site and also on our website
One of our favorite returns and options for contributions are HOUSE CONCERTS. You can get a glimpse of our set & what that might look & sound like here: Saucy Monky Acoustic Living Room Sessions
If you have any ideas on what you’d like from Saucy Monky that aren’t listed (now keep it clean ), please feel free to e-mail us at [email protected] with your idea (this e-mail goes directly to the band). Also, if you plan on booking a house concert, please drop us a note first.
We have increments ranging from $5-$5,000 and every cent goes a long way (as Mother Teresa said, “every drop makes the ocean”). If you buy a reward, we promise we won’t disappoint.
All our love and gratitude for your ongoing support,
xo Annmarie and Cynthia on behalf of Saucy Monky
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by Ellen Seidler | Copyright, Piracy, Tech
Last week YouTube made official what had long been rumored and announced a new slate of paid channels.
Starting today, we’re launching a pilot program for a small group of partners that will offer paid channels on YouTube with subscription fees starting at $0.99 per month. Every channel has a 14-day free trial, and many offer discounted yearly rates. For example, Sesame Street will be offering full episodes on their paid channel when it launches. And UFC fans can see classic fights, like a full version of their first event from UFC’s new channel. You might run into more of these channels across YouTube, or look here for a list of pilot channels. Once you subscribe from a computer, you’ll be able to watch paid channels on your computer, phone, tablet and TV, and soon you’ll be able to subscribe to them from more devices.
While this announcement is potentially good news in that it offers content creators large and small new ways to monetize their work, unless YouTube purges pirates from the site, it’s is a business model that remains tainted.
I’ve written previously about the various ways YouTube enables (and reaps profit) from movie piracy. With the latest announcement paid YouTube channels, I thought it worth looking at yet another example of their dirty laundry. This time it’s an Argentina-based website that uses popular movie trailers on YouTube to attract customers to its online store selling bootleg DVDs and video games.
I came across the illegal site when I viewed a trailer the French indie film “Tomboy” uploaded to YouTube. The user had uploaded a number of trailers to his YouTube channel and in the description for each, included a link to his illegal website. To add insult to injury, the trailers featured not only a link to the bootleg site but included a its own splashy animated logo edited in.
Here’s the description translated from Spanish:
www.xtopsite.com where you can find the last extrenos on DVD
new http://www.xtopsite.com
Pre release movies 20000 retro releases and unpublished
4000 concerts in Argentina and worldwide with the best sound
1500 Complete TV series, so you can finish watching it so steep that you got
20000 MP3 bands and musicians to upload your best technology
20000 programs to make the impossible possible
20000 playstation xbox360 wii chipiadas for your consoles to play online against worldwide
shipments at home just as fast in 24 hours on market
The best prices, the best quality, over 15 years as leaders in the market $ 3. – C / u cd $ 5 – c / u dvd
Promo: if pedis 100 units or more makes you a discount of% 25. –
orders effected only by form: http://www.xtopsite.com
When I navigated to the website, I found this, a virtual storefront that looks legit enough, but isn’t. How could I tell? Well, the first clue was the DVD for the film “42” which just recently appeared in theaters. “42” is not scheduled to be released on DVD until this summer, August 2013.
The movie “42” will be released on DVD and Blu-ray in August of 2013.
This site also sells (bootleg) Xbox games, along with advice for finding cracked serial numbers online.
Here’s the specific advice (translated from Spanish):
Clearly these pirates are using YouTube as a means to advertise and drive traffic to their illicit business. Since it’s based in Argentina, they can operate openly with little fear of closure since the country is notoriously lax on piracy. An article published on smartplanet.com sums it up pretty well:
Argentine websites and physical markets questioned for distributing pirated and counterfeit material shows how relaxed local attitudes are toward intellectual property. Students regularly buy photocopies of entire college texts rather than pay for the book, while several Buenos Aires parks fill on weekends with vendors openly selling pirated computer software.
Part of Argentina’s fertile culture of piracy is inspired by a belief that intellectual property rights can be sacrificed in the name of helping the poor and forgotten against large corporations; part is caused by Argentina’s lax enforcement of intellectual property laws; and the rest comes from the country’s isolating economic policies, where import restrictions and high import taxes make buying genuine foreign goods prohibitively expensive.
The Office of the U.S. Trade Representative has placed Argentina on its “watch list” citing copyright infringement as one concern, “However, serious problems persist, including widespread availability of pirated and counterfeit goods, an inefficient judicial system, and a failure to adjudicate civil and criminal cases and impose deterrent level sentences…overall levels of copyright piracy continue to present a problem, as reflected, for example, in a reported growth in piracy over the Internet.”
So while the United States is concerned that Argentinian authorities inaction against IP theft and piracy, a U.S. based company like YouTube help them facilitate it without a problem? As a business that abides by U.S. law, should YouTube/Google do more to prevent an illegal enterprise from using their website to promote/distribute illegal goods?
According to YouTube’s own “Terms of Service” (and I assume U.S. law) the company bears no responsibility in these situations:
The Service may contain links to third party websites that are not owned or controlled by YouTube. YouTube has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, YouTube will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve YouTube from any and all liability arising from your use of any third-party website.
In addition to their “Terms of Service” YouTube offers users a bit more guidance via their “Community Guidelines,” but here, the only reference discouraging “illegal” activities are “Dangerous Illegal Acts” like bomb making and sniper attacks. Nothing about operating illegal bootleg/counterfeiting operations.
Is the situation any different with YouTube’s parent company Google? Not really since Google’s terms of service follows the same murky (though apparently legal) path.
If the bootleg site is in Iran, Cuba or the Sudan, it seems Google may be forced to act, otherwise, despite lip-service that frowns on “dangerous and illegal” activities, linking to illegal businesses is A-OK. If I’m interpreting the verbiage correctly, bootlegging DVDs is not dangerous per se (which obviously it’s not), then the illegal part is moot. Though Google terms state that users aren’t allowed to create websites, ” that have the primary purpose of redirecting visitors, acting as a bridge page, or driving traffic to another website” it appears that the company does little to stop this activity, at least on YouTube.
Commercial Activity
You may use Google Sites to create websites for your business or to promote your products or services, unless you are in Cuba, Iran, or Sudan. There are some commercial uses we don’t allow. We don’t allow websites that have the primary purpose of redirecting visitors, acting as a bridge page, or driving traffic to another website. We also don’t allow websites that have the primary purpose of profiting from displaying ads from any publisher network, such as sites created with little or no unique content and exist only to display ads.
Copyright
It is our policy to respond to clear notices of alleged copyright infringement. More information about our copyright procedures can be found on this page: http://www.google.com/sites_dmca.html
Unlawful Use of Service
Our products and services should not be used for unlawful purposes or for promotion of dangerous and illegal activities [emphasis added]. Your account may be terminated and you may be reported to the appropriate authorities.
The U.S. Customs and Immigration Enforcement (I.C.E.) has been seizing web domains as part of an ongoing effort to battle counterfeiting across the globe. Perhaps its time to examine the mechanisms by which U.S. companies indirectly aid such criminal enterprises as well? Why not engage some of our own companies in a discussions aimed at reducing their role in enabling these criminal activities?
On another front, why not enlist the YouTube community in helping to report these questionable sites? YouTube has a system whereby users can flag material deemed to be in violation of “rules:”
Users report content that may violate YouTube’s rules by flagging it. YouTube’s rules are outlined in ourCommunity Guidelines. YouTube staff review flagged videos 24 hours a day, seven days a week. When a video is reviewed and determined to violate our Community Guidelines we remove it.
YouTube seems to have no problem allowing its users to flag innocuous kissing scenes from lesbian/gay tv shows and movies, why not give its “community” an easy way to flag material actually links to illegal content–content that does harm? According to YouTube’s community guidelines:
We Enforce These Guidelines
Okay, this one is more about us than you. YouTube staff review flagged videos 24 hours a day, seven days a week to determine whether they violate our Community Guidelines. When they do, we remove them. Sometimes a video doesn’t violate our Community Guidelines, but may not be appropriate for everyone. These videos may be age-restricted. Accounts are penalized for Community Guidelines violations and serious or repeated violations can lead to account termination. If your account is terminated, you won’t be allowed to create any new accounts. For more information about how the Community Guidelines are enforced and the consequences of violating them, please visit the Help Center.
At present, it’s pretty much impossible notify YouTube about the illegal linking scenario I’ve described in this post because 1) it’s not a “dangerous and illegal act” 2) it doesn’t infringe “my rights.” When I tried to flag the trailer and alert YouTube that this YouTube channel linked to a counterfeit site I was met with a form that required information (like an actual hyperlink to the law being infringed) and legal standing that I don’t posses.
Clearly YouTube doesn’t want to be deluged with false claims, but making an option available for users to report a legal issue that does not involve one’s own trademark or copyright would help.
There may be other technological ways to vet questionable links. Google seems to achieve wonders with its search algorithms. Why not utilize technology to ferret out links to dubious websites posted on their pages? Google regularly labels sites as “compromised” on search results. Of course, when it comes to others attempting to crackdown on criminal websites listed via their search engine Google likens this to an attack on “free speech.”
For now, it seems Google has no legal obligation to worry about its role in facilitating illegal activity like bootleg DVD sales. After all, sharing links to infringing streams and downloads is allowed to fly under the radar, so is it any surprise other savvy pirates link to their sites selling bootlegged copies? Moving forward, one can only hope Google representatives begin to acknowledge this problem and begin to develop efficient and thoughtful ways to deal with it. If Google wants YouTube channels to become a legitimate and profitable means of distribution for content creators, why not get rid of those YouTube users whose activities undermine the livelihoods of these same creators YouTube is attempting to woo?
Derek Khanna first came to public notice in 2012 after writing a lopsided anti-copyright “policy brief” for Republican Study Committee called “Three Myths About Copyright Law and Where to Start to Fix It.” A day after the document was released it was withdrawn and Khanna lost his job at the end of the 112th Congress. He blamed wealthy donors in the “entertainment industry” for his dismissal and quickly became a martyr for the anti-copyright cause. He ended up at as Yale Law Fellow with the Information Society Project.
