It’s Friday again and that means it’s time for another episode of the Copyright 2.0 Show!

It may be the holidays but that doesn’t mean things are slowing down in copyright news. Not only is SOPA and it’s new alternative still making headlines, but new DRM rules are on the horizon and we even have a major court ruling in a case against an advertiser.

We also have a case of a fair use ruling making strange bedfellows and a conclusion to the Vostu/Zynga case just in time for Zynga’s upcoming IPO.

Those stories and many more are in this week’s edition of the Copyright 2.0 Show!

This week’s stories include:

• SOPA Opponents Introduce Alternative Legislation, now Called OPEN Act
• EFF to Ask Copyright Office to Legalize Jailbreaking on Tablets, Consoles and More
• Chitika Not Liable for Serving Ads on Pirate Site, May Have Been if Informed
• Publishers, Record Labels Join Righthaven Fair Use Fight
• Vostu Settles w/ Zynga, Will Change Games
• Much, Much More!

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Book, Record Industries Attack Righthaven Fair Use Ruling

First off today, the Association of American Publishers and the Recording Industry Association of America both filed amicus briefs with the 9th Circuit Court of Appeals in one of Righthaven’s lawsuits. Righthaven, which sued nearly 300 bloggers and webmasters over alleged infringement of content from the Las Vegas Review-Journal and the Denver Post, has had their campaign on hold in recent weeks due to a string of legal defeats. However, the associations aren’t filing briefs in hope of reviving the lawsuits, rather, they are addressing a narrow fair use issue in one of the cases, a ruling that, according to them, could be disastrous for copyright holders. Neither brief addresses the issue of Righthaven’s position to use, the grounds on which it lost the case.

2: Ad Network Not Guilty of Copyright Infringement For Serving Pirate Site

Next up today, the ad network Chitika has come out victorious in a lawsuit that pitted them against publishers Elsevier and John Wiley & Sons. The publishers had claimed that Chitika, which was running ads on Pharmatext, a site that previously offered pirated ebooks. However, according to several industry experts, including attorney Eric Goldman, the ruling leaves the door open for services like Chitika to lose similar fights if copyright holders notify them of the infringement first. If the publishers could have shown that Chitika was aware of the infringement, the result could have been very different and that, in turn, may pave the way for a “notice and takedown” system for ad networks similar to what is proposed in the Stop Online Piracy Act (SOPA).

3: Celeb Photo Agency Sues Gossip Site

Finally today, celebrity photo agency Mavrix has filed a lawsuit against Idontlikeyouinthatway.com as well as related companies CraveOnline Media and AtomicOnline claiming that the site is has unlawfully used photos from the service on “numerous occasions”. The lawsuit is seeking some $3 million in damages as well as an injunction barring the site from using any more of their photos in the future. According to the lawsuit, Mavrix has licensed images for as much as $100,000 a piece, opening the door also to high actual damages as well as statutory ones.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 5 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

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However, advertising networks are not covered by the DMCA. Since they are not hosts and are not information location tools, such as search engines, they don’t fit neatly within the paradigm of the law. Their liability for infringement is, at best, untested.

Despite that, many advertising networks do accept DMCA notices and rely on the notice and takedown provision for handling complaints of copyright infringement. However, since the legal status of these networks is different, we are bending the rules a bit and judging the sites on their general abuse reporting procedure if one specifically for copyright does not exist.

Show how do they fare? Let’s find out.

Format: Fax
Email Address: None
Location of Policy: Google’s DMCA Policy
Registered with USCO: No
Comments: Yet another industry lead by a Google product and thus backed by their shoddy and questionable DMCA system. However, things get even worse when looking at Adsense. Where Google’s other services are clearly registered with the USCO, Adsense is not. Though not a legal requirement, it seems odd considering that Adsense actually has a separate DMCA policy from the rest of Google’s products. Though you might be able to use Google’s regular DMCA agent, I have not tested that since all of the other contact information has also changed including both the fax number and the department. Google makes it a habit of rejecting copyright complaints that don’t meet its standards, even if the site is obviously a spam blog or violates another element of the Adsense TOS. It seems likely that their policy in this area is one of the reasons that Adsense remains so popular with spammers, even after several crackdowns.
Grade: D-

Format: Email
Email Address: copyright at yahoo-inc dot com
Location of Policy: Yahoo’s Copyright and IP Policy
Registered with USCO: Yes
Comments: If you’ve read my previous reviews of Yahoo!, you know that I’m very fond of their policies in this area and their sense of responsibility. As with their other products, the copyright policy is linked at the footer of each page, is very complete and offers a very pain-free means of getting in touch with Yahoo. All in all, they are a leader in this area and, for once, the recycling of a copyright policy is actually a very good thing.
Grade: B

Format: Email
Email Address: jkweston at microsoft dot com
Location of Policy: Microsoft’s Copyright Policy
Registered with USCO: Yes
Comments: We’ve covered the shell game that MSN plays with its DMCA contact information before. The non-clickable link, the unsearchable policy and the buried information. Unfortunately, Microsoft simply rehashes the same policy for their advertising network, currently in beta. In fact, clicking the “legal” link at the footer of the adCenter site will simply take you to the same terms of use that all of live.com uses. Though the policy seems to be robust and well-written, the efforts taken to hide it worry me and frustrate many who have legitimate need to file a complaint.
Grade: C-

Format: None
Email Address: None
Location of Policy: Terms and COnditions
Registered with USCO: No
Comments: This line from their T&C really bothers me: “In order to avoid associations with copyright claims, website publishers may not show Paid Listings in areas such as MP3, Video, News Groups, and Image Results.” Of course, the other thing they do to avoid any association is not have any abuse information anywhere on their site. Even their “Contact Us” page simply leads to their support trouble ticket system, not really appropriate for this. The only email addresses I found are the ones in th left-hand column of the site that go to the support team and sales. There is no obvious way to send in an abuse complaint, copyright or otherwise, and it seems that is very much on purpose. Of course, their above limitations don’t stop spammers and won’t stop most content theft. It just keeps the Viacom’s of the world at bay and shows exactly what role Chitika is willing to play.
Grade: F

Format: Fax
Email Address: None
Location of Policy: Copyright Dispute Policy
Registered with USCO: No
Comments: If finding Easter eggs or completing scavenger hunts is too easy for your kids, have them track down AdBrite’s Copyright Dispute Policy. To find it, you first have to act as if you’re registering for an account on the site, then select all of the text in their terms and conditions, because you can’t read it in their tiny textbox, and then paste it into another program. From there, you’ll find the URL buried deep within. Needless to say, the process could be a lot easier and, worse yet, the policy itself doesn’t even include an email address to contact, just a fax number. As bad as the Microsoft shell game with this information is, AdBrite is much worse and the lack of an email address is downright obstructionist. Though the policy seems to be otherwise complete, I simply can not support such an sneaky effort to hide this critical information.
Grade: D-

Format: Email?
Email Address: service at burstdirect dot com
Location of Policy: Terms of Agreement
Registered with USCO: No
Comments: Burst Media is yet another Web site without any abuse reporting procedures on their site. Though they seem to have a pretty extensive registration process, there’s no way for a visitor to report a site that might have gotten through their inspection process. Though their terms forbid the posting of copyrighted material, there is no clear means of reporting an infringer and the above information is purely guesswork. However, it is the account they filter all other contact through so it seems likely that it would work for this purpose. As discouraging as lack of a policy and general distance from the issue is, it seems to be pretty typical for sites in this field.
Grade: F

Format: Form
Email Address: None
Location of Policy: None
Registered with USCO: No
Comments: Finally, though TLA may be controversial among SEO gurus for its link purchasing system, it is also worrisome for me due to its lack of an abuse system. Though their user agreement does forbid the posting of infringing material, it is merely one word in a list of general things that a member can not do. It is not backed up with any meaningful abuse reporting method and the best approach I could find is to contact “Other” using the form. That is hardly ideal for a network that has the potential to attract seedy elements from time to time. All in all, TLA’s policy, or lack thereof, borders on irresponsible and reckless.
Grade: F

Conclusions

If you’ve ever wondered what good the DMCA does, consider these sites. Looking over the results you see that there are three Fs and two D minuses. Five of the seven sites either have no policies or have extremely flawed ones.

Only two, Microsoft and Yahoo, have have decent reporting procedures and when Microsoft is nearly at the top of the pile in this area, there is something very wrong.

What is also clear is that large advertising networks with other hosting products typically just recycle their old policies, for better or worse, and and those without such preexisting policies didn’t bother to create a new one.

It appears as if most of these networks want to distance themselves as far as they can go from these complaints, both by indemnifying themselves from all such infringements and by not easily accepting complaints. This will, without a doubt, only feed the plague of scraping and content theft by making it easy for spammers to stay in business.

All in all, once you get an account with one of these services, unless you commit click fraud or some other crime against the network itself, it would seem to be very difficult to get your account cut.

I’m sure that many spammers will be happy to hear that.

What the Ratings Mean

A – A complete policy that goes well above and beyond what is required. Often shows real innovation.
B – A solid policy that is well-thought out and is very complete. Shows consideration for submitters and users.
C – An average policy, follows the law to the letter but doesn’t go out of its way to help those submitting a notice or its users.
D – A policy that, while mostly complete, still raises severe ethical and/or legal questions.
F – An incomplete policy that fails to follow the DMCA or local laws in a severe way.

Pluses or minuses are used to indicate how the where a host fits in relationship to other hosts in that that tier.