ARTS & FARCES internet

UK record label EMI has asked a federal judge in New York to bar the Electronic Frontier Foundation (EFF) from filing an amicus curiae brief in the record label’s lawsuit against MP3tunes. Amicus curiae—“friend of the court” briefs are often filed by interest groups in precedent-setting lawsuits. Anyone that is not party to the action can file an amicus brief and judges accept or reject them at their sole discretion.

EMI argues that the EFF’s amicus brief “contains unsupported speculation” and is “a pure advocacy piece,” too long, and a prejudice to EMI.

In September EMI sent takedown letters to MP3tunes without specifying what content it considered to be infringing, a requirement of the Digital Millennium Copyright Act (DMCA). MP3tunes gives users free storage for their music and Sideload.com, one of its subsidiary websites links users to downloads which can be stored on MP3tunes’ servers. MP3tunes filed a lawsuit (.pdf; 2.3MB) asking a federal judge to declare its business model legal.

The case promises to be a test of the DMCA’s “safe harbor” provision which protects internet service providers—including cloud storage services—from liability if infringing content uploaded by users is removed upon demand of the copyright holder. In a 2007 case, Viacom International, Inc. v. Youtube, Inc., the New York Southern District Court held that internet service providers are immune from copyright liability if they promptly remove infringing works at the copyright holder’s request, even if they know they are hosting infringing material.

But this case is about more than infringing material on websites. It’s also about what control content publishers have over their customers after the customer purchases the content. EMI in this case is asking the court to tell customers that EMI has absolute control over copyrighted content purchased by its customers.

The US entertainment cartel‘s latest wet dream, the Combating Online Infringement and Counterfeits Act (COICA), calls for a mandated government-run blacklist where domain name service (DNS), credit card processing, and online advertising are blocked from websites that infringe on the intellectual property rights of others. After unanimously passing the US Senate Judiciary Committee, this ill-conceived legislation will do nothing to stop the tech-savvy from infringing copyright but will do everything to block ordinary citizens from content their government deems inappropriate. Because even websites that publish infringing material may also publish material that’s constitutionally protected. Think WikiLeaks here, folks. If WikiLeaks is deemed to have published infringing material, access to all of WikiLeaks’ content would be denied. Or Canadian prescription drug websites that sell pharmaceuticals at lower costs. And some domains host thousands of individual websites (think WordPress.com). If just one of those sites publishes infringing material, all of the sites hosted on that domain are blacklisted and disconnected.

DemandProgress argues that the internet disconnection powers inherent in the bill could be used for just such political purposes, using the WikiLeaks scenario as an example. The activist group has a petition to stop the blacklist. A group of university professors have signed on to a letter in opposition to the legislation by David Post at Temple. “The Act, if enacted into law, would fundamentally alter US policy towards internet speech, and would set a dangerous precedent with potentially serious consequences for free expression and global internet freedom,” writes Post in his letter. Tim Berners-Lee, who invented the web itself, went so far as to call the proposed legislation a “blight” on the internet at a web conference at the Royal Society in London.

Congratulations to the members of the Senate Judiciary Committee—you’ve blessed the Chinese approach to censoring the internet. We are now Turkey. And you’re too duplicitous to recognize this for what it is: The latest attempt by the entertainment cartel to eat their cake and have it too. The story’s as old as history (God bless Plato) but here’s a modern refresher. The cartel tried to eliminate the video cassette recorder (VCR) by going to the Supreme Court arguing to keep the “Boston Strangler” out of our living rooms. And again with the early .mp3 players. Then again with the analog hole (with breathtaking unoriginal language almost identical to that used against the VCR). Yet again with the commercial skipping digital video recorder (DVR). Oh, and remember the play for a mandatory broadcast flag. And finally, the Digital Millennium Copyright Act (DMCA).

The Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) have submitted their copyright laundry list (.pdf; 221KB) in response to the US Intellectual Property Enforcement Coordinator’s (IPEC) request for comments on its “joint strategic plan” for enforcement.

Various other “creative community organizations” also joined with the RIAA and MPAA in the response, including the American Federation of Television and Radio Artists (AFTRA), the Directors Guild of America (DGA), the International Alliance of Theatrical and Stage Employees (IATSE), the National Music Publishers’ Association (NMPA), and the Screen Actor’s Guild (SAG).

The US entertainment cartel’s laundry list is breathtaking and reads, as Cory Doctrow notes, like a “startlingly dystopian work of science fiction.” The cartel wants the IPEC to “encourage” (for now; mandate to come) network administrators and internet service providers to:

• [Use] technologies to detect, monitor (and filter) traffic or specific files based on analysis of information such as protocols, file types, text description, metadata, file size, and other “external” information;
• [Employ] content recognition technologies such as digital hashes, watermark detection, and fingerprinting technologies;
• [Deploy] site blocking, redirection with automated warning systems/quarantine of repeat offending sites;
• [Use] bandwidth shaping and throttling;
• [Deploy] scanning infrastructure (the ability to subscribe to RSS-style data feeds as sites get new postings of content and links (for linking, streaming, and locker sites); and
• [Mandate use of] consumer tools for managing copyright infringement from the home (based on tools used to protect consumers from viruses and malware).

Just when you thought we were finally safe from the intellectual property abuses of Rep. Howard Berman (D-Hollywood), he’s back with a new call for stronger intellectual property laws. Most rational US citizens heaved a sigh of relief when Berman became chair of the House Foreign Affairs Committee. We thought he was rendered harmless, but he’s merely redefined his old saws as foreign affairs.

What’s really disturbing is that Berman is using data he almost certainly knows is unreliable or simply inaccurate. After all, it’s his job to know that the data he is using is reliable and accurate.

All of this came out in a field hearing Berman held in Van Nuys, California on Monday, 6 April 2009 to allow US movie and music cartel executives vent on the terrors inherent in counterfeiting and piracy. Berman opened the hearing by citing four statistics:

1. The International Intellectual Property Alliance (IIPA) claims that copyright infringement caused an estimated US $18.3 billion in losses in 2007
2. The Motion Picture Association of America (MPAA) claims the film industry lost US$6.1 billion in 2005 due to piracy
3. The music industry estimates there were more than 40 billion illegal downloads last year
4. The US Chamber of Commerce claims counterfeiting is responsible for the loss of 750,000 US jobs per year.

The problem is that Berman’s information is mostly just plain wrong. The IIPA claimed losses of US$20.1 billion in 2007 (.pdf; 24Kb). Last year’s claim is US$18.4 billion.

Still think politics as usual will change under an Obama presidency? Here’s further indication it won’t. After promising openness and transparency, Obama is using George W. Bush’s worn out national security argument to obfuscate details about the highly controversial Anti-Counterfeiting Trade Agreement (.pdf; 36Kb) (ACTA) currently being hammered out by the global copyright cartel. Earlier this week the Obama administration issued a Freedom of Information Act (FOIA) request denial (.pdf; 444Kb) to Knowledge Ecology International, declaring the contents of the proposed international treaty a national security secret. Shortly before Obama took office, George W. Bush’s administration similarly rejected an equivalent FOIA request (.pdf; 108Kb) from the Electronic Frontier Foundation (EFF).

A national security secret that’s been shared with Australia, Canada, the 27 member countries of the European Union, Japan, New Zealand, South Korea, and Switzerland. How does that work? Oh, but wait, it gets better. Cory Doctorow writes in boingboing how members of the copyright cartel have been cleared to partake of the national security secret. “Of course, they’re allowed to know what’s in the treaty—but the public, activist groups, consumer rights groups, and the artists whom this treaty is supposed to protect are all forbidden from knowing what it says,” writes Doctorow.