With the holiday in the U.S. there wasn’t a whole lot of local copyright news to talk about but, fortunately for this podcast, other countries rushed in to fill the void and bring us yet another packed episode of copyright news, views and abuse.

This includes a major ruling in the EU on the issue of ISP filtering, a plan from Australian ISPs to tackle piracy and concerns that Spotify may be heading for a day of reckoning as labels start to back out. All of this and much, much more!

This week’s stories include:

• Grooveshark Emails Released, Show Company Aware of Infringement
• EU Says ISPs Can’t Be Forced to Filter Infringing Material
• EU Advocate General Says You Can’t Copyright a Programming Language
• Australian ISPs Propose Anti-Piracy Plan, Copyright Holders Unhappy
• New Anti-IP Infringement PSA Campaign Launches in U.S.
• 200 Labels Leave Spotify
• Bittorrent Defense Attorney Switches Sides

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: Belgian ISP Not Obliged to Block File-Sharing Material

First off today, an adviser to the highest tribunal in the EU has ruled that a Belgian court ruling ordering a local ISP to filter out copyright infringing traffic is invalid and violates privacy rights. Though the ruling didn’t eliminate the possibility of all filters, just ones that were not proportionate and effective, the ruling is seen as a major setback for copyright holders which had lobbied for filtering. Though the ruling is non-binding, the EU tribunal usually rules the same as its adviser.

2: Can Doctors Use Copyright Law To Get Rid Of Negative Reviews?

Next, some 3,000 doctors have signed up with a company named Medical Justice that, among its services, offers doctors “libel protection” by having the doctor’s patients sign a contract granting the company copyright in all reviews that they create, which enables the company to file takedown notices over negative and unwanted reviews. Though the company is confident that their system is legal, several sites, including Yelp and RateMD, have refused to honor takedown such notices and legal experts warn of potentially serious consequences for using such a strategy.

3: Kiwi MP Called Out As Pirate After Passing Anti-Piracy Law

Finally today, a New Zealand MP, Melissa Lee, tweeted about getting a K Pop compilation from a friend just hours before giving a speech in support of the country’s latest anti-piracy legislation, which will implement a three strikes regime in the country to disconnect suspected file sharers. However, under New Zealand law, such a compilation is very likely unlawful and may dub Lee herself as an infringer. Lee defended herself saying that the tracks were legally purchased though such a purchase does not, by itself, authorize the making of a compilation disc to hand to someone else.

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 6 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.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Email, however, has a very perilous journey around spam filters and less-than-reliable connections and, even if everything goes perfectly, we may never hear back about it. Though you can sometimes ask for delivery confirmation or return receipts, those don’t work consistently and most email services have abandoned them for a variety of reasons.

So when you send an email with an important notice, whether it’s a cease and desist letter, a DMCA notice or something else altogether, how do you confirm that it got there? There’s no easy way to do that, but you can certainly improve your odds and make sure that your messages at least make it through most of the time.

With that in mind, here are a few tips I’ve learned to improve your email’s chances of getting through during a critical time.

1. Use a Good Email Provider

Where you send your email from matters a great deal. You’re best off using a major email provider such as Google, Yahoo! or Hotmail and not your hosting company. These systems have a better reputation than your server will be able to build up and are widely trusted.

It’s best to have accounts on these services, even if you don’t use them as your primary email address, just to ensure that mail is able to pass back and forth without trouble.

2. Choose the Right Address

When sending mail, where you send it to also matters. The older an email account is, the more likely it is to be inactive. Email may not bounce, but it won’t be read either.

When trying to find an email to contact a person, company or a site, favor the newest email address possible. If you see an account is more than a few years old, sending to it blindly is not a good idea. If you have to send to an older address, also CC to a newer one or an account that you know will be active, such as the general info account if the company has one.

It may be annoying for them to have to forward the message along, but it may be necessary in some cases.

3. Ditch Attachments

I’ve done some pretty interesting side-by-side response studies and found that you improve response rate by a good deal if you just stop using attachments. Though it might feel nice to have an attractive letter on PDF with your email, save it for fax.

Many email filters automatically discard messages with attachments from untrusted email addresses. If the host asks for a signed PDF, you can provide it then, however, don’t waste your time sending one before then as it reduces the chances of your email making it.

4. Avoid Using Too Many Links

Sending links may be unavoidable when sending out DMCA notices, but try to avoid adding in any unneeded ones. Trim out the ones in your signature and generally try to reduce the links you send in a single email. Emails with too many links are frequently thought to be spam and are likely to get filtered out.

5. Use DKIM

If your email provider is separate from your hosting provider (See: Item 1), such as with Google Apps, you will probably want to use DKIM to prove that the email is not a forgery. If your email provider offers it, setup is usually fairly fast and only involves getting a key from your email provider and editing your site’s DNS to include it.

Google recently launched this feature for Google Apps and that has greatly reduced the amount of my mail filtered as spam. If you are a Google Apps user, you can learn how to use DKIM here.

6. Use Forms When Possible

For those who need to send a lot of email, forms can be a major headache but when sites and companies offer forms, they are pretty much a guaranteed way to bypass any spam filters.

Though, for many reason, you should likely send another copy of the email via a more traditional method, sending a notice via a form is a good backup method to ensure that it makes it there in one piece.

Bottom Line

In the end, will any of these things guarantee that your email makes it there? No. There’s a good reason we still have process servers, certified mail and faxes still being used for most critical legal communication. They are much more reliable ways to confirm that a message got to its recipient, much more so than email.

That being said, many times email is the most efficient way to send a message and, in those situations you will want to maximize your chances of the message getting through.

The methods above are a good starting point, all based upon my experience and good email common sense, but they are still no promise.

Considering all the links that must come together for an email to go form A to B and be read, it’s amazing that as many messages get through as they do.

Frustrated that Ken Follett’s book ‘Fall of Giants’ was not available in Spanish on the Kindle, he posted a blog entry on the topic and linked to a downloadable copy of the work available on a file hosting site. This attracted the attention of CEDRO (Spanish Reproduction Rights Center), a group that represents authors in Spain, which in turn filed a DMCA takedown notice with Ricardo and then with WordPress, which eventually took down the site temporarily and blocked Ricardo’s access.

But what makes this case unusual isn’t WordPress’ involvement, it’s how CEDRO claims to have first contacted Ricardo. According to the story, CEDRO didn’t simply email a takedown notice (or a cease and desist) and, instead, they posted it as a comment to the blog entry and, when they didn’t get a reply, they moved up the food chain.

This story raises a lot of interesting questions about sending DMCA notices (or cease and desist letters as it would more appropriately be in this case) via blog comment forms. Unfortunately for CEDRO, I think the reason it took so long for this issue to come up is because it was such a stupid idea in the first place.

Comment Fail

Back in June, I raised the question whether anyone would be willing to send a cease and desist via Twitter or Facebook. The consensus seemed to be that, though these methods of communication are becoming more commonplace, most aren’t comfortable using them for such purposes yet.

But where Twitter and Facebook come with discomfort in using them for such official capacity, comments raise still more issues.

The problem is that comments on a blog post are not necessarily directed at anyone. Where I can send a private message on Facebook or an @reply on Twitter, a comment on a blog entry is just a reply to the post and not necessarily directed at anyone. It could be at another commenter, the blog author or no one at all.

As such, it’s hard to claim that the notice was actually or effectively delivered. It’s a bit like posting the notice to a public bulletin board near a person’s home and expecting them to read it. While public notice is a part of the law, it’s for cases where the public at large, not a specific person, most be notified of something (name change, certain auctions, etc.).

While cease and desist letters and DMCA notices are not official documents in that they do not need to go through the service process, there needs to be at least some proof of receipt as ignoring these notices can have implications on a potential legal case.

It would be very difficult to prove that someone was given adequate notice with just a comment posted to their blog, especially if it is a high-volume blog.

However, that is just the tip of the iceberg with the problems with this method.

Other Problems

In addition to the obvious issues with serving any kind of notice through a comment form, there are many other reasons why a comment form would be a poor choice for such a notice.

1. Spam Filtering: Though email accounts have spam filters, they seem to do a much better job eliminating false positives than comment ones, making it more likely that such a comment would be junked. Furthermore, you have two spam filters to deal with, the comment one and the email one, meaning that even if the comment goes live, the owner might not be notified.
2. No Authentication: How is a blogger going to confirm who wrote a comment? With so many trolls on the Web it would be easy to dismiss such a comment as not being from a valid source, especially since the means is so uncommon. This makes it less likely the site owner will respond in a favorable way.
3. It’s Public: Though no one should be ashamed of doing reasonably copyright enforcement in the public light, taking matters so pubic, especially right off the bat, basically ensures a more negative response. A polite, private message usually gets the best response.

However, the biggest issue of all is that there was no reason to file with Ricardo at all. The file host involved, MegaUpload, does respond to takedown notices and likely would have removed the work quickly. That would have cut off the problem at the source and not further downstream.

In short, rather than damming a river, they simply tried to dam one of its forks, not a good move to stop the water.

Bottom Line

To me, it almost sounds like CEDRO was trying to pick a fight. I can’t imagine a rights group with as much experience as CEDRO making a decision like this. If it were someone with no experience in enforcement, it would be an understandable mistake but this is a rights group that is no stranger to this area.

What the purpose of this was, I can not be sure. I was able to easily find Ricardo’s address (even I know what “contacto” means in Spanish) and it seems a better resolution was a simple email away. Instead now they have an ugly mess on their hands and the artist’s rights are no better protected.

All around, this seems to be a boneheaded move and one I hope other copyright holders do not repeat.

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

1: Leaked UK government Plan to Create “Pirate Finder General” with Power to Appoint Militias, Create Laws

First off today, Cory Doctorow is reporting on a leak he received from a previously reliable source within the UK government about upcoming proposed changes to the UK’s Digital Economy Bill that is currently before Parliament.

According to Doctorow and his source, the changes would create sweeping reforms to the Copyright, Designs and Patents Act (1988) that would give the Secretary of State some radical new powers in copyright matters including the ability to create new remedies for online infringements (three strikes rules, etc.), to confer rights to copyright holders for the purpose of enforcement, which would give some powers, currently only held by judiciaries in the country, to rightsholders directly, and to “impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement”.

These sweeping reforms, if true, would mark some of the most extreme changes to copyright legislation in the world, if not the most extreme.

Obviously we will have to wait for the actual proposal to confirm its contents, but this already has many worried. More to come on this in the future.

2: KFPA backs Web Filtering System

Next up today, the Korean Film Producers Association (KFPA) and the Digital Content Network Association have announced their intentions to target P2P sites in South Korea with legal action if they fail to install filtering software created to keep infringing content off of their services.

According to the two agencies, some 78 P2P sites have installed the software, accounting for roughly 90% of the sites in the country.

They have said that they will consider, “the failure to install the software will be taken as an offense against consumers and copyright holders” and will seek legal remedies.

Some have hypothesized that this harsh tone comes as the sites who have installed this software have seen serious drops in business due to the removal of infringing works while those who have not have grown. Prompting them to take action against the hold outs.

3: European Publishers Give Google Book Deal Cautious Welcome

Finally today, authors in Europe have given the new Google Book Search a warmer reception than its predecessor but have said that they need more time before they can make a full comment on the issue.

The original settlement, which was designed to resolve a case between Google and the Authors Guild and various publishers, gave Google sweeping rights to scan, display and even sell copies of out-of-print but in-copyright works provided a portion of revenues went to the author and publisher. The original settlement was scuttled following anti-trust concerns from the U.S. Department of Justice, but the new one follows the same approach, but offers authors more control over their work and greater consideration for international authors, who will not have their books scanned unless their nation is a plaintiff in the suit and their work is in the English language.

European authors have responded with tentative approval of these changes and considerations, but expect to have a more robust response in the future.

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 Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

What do you call someone who not only sues someone trying to help them, but does so with terminally flawed legal arguments? An idiot.

There’s really no “nice” way to say it. Using the courtroom as a club against people trying to help you is just plain stupid, even if you have a disagreement with them.

However, that is exactly what children’s book author Elaine Scott is doing to document-sharing site Scribd, suing them for trying to help her better protect her work.

It is a strange and bizarre case not only tests the limits of one’s imagination, but also one that bears a closer examination as it may have an impact on the rights of smaller content creators everywhere.

Background

The case began when Scott found one of her earlier books, financial advice work entitled “Stocks and Bonds, Profits and Losses”, available illegally on Scribd. She filed a DMCA takedown notice and the work was removed but Scott was not satisfied. She filed suit against Scribd with two different accusations.

First, according to Scott, the site itself is a violation of copyright because it “Shamelessly profits from the stolen copyrighted works of innumerable authors” and the creators “Have built a technology that’s broken barriers to copyright infringement on a global scale and in the process have built one of the largest readerships in the world.”

However, it is the second claim that has become the most attention-grabbing. Scribd employs a “takedown stay down” system that prevents infringing works from being reuploaded to the site and her book, once the notice was filed, was added to that database. Scott now also claims that this copyright filtering service is an infringement and that “Scribd doesn’t have the authority to ‘help’ me with anything…. The filtering system is Scribd’s way of asking for forgiveness, rather than permission.”

What ends up tying this entire lawsuit together into a big ball of copyright strangeness is that Scott is being represented by Kiwi Camara, who became famous in copyright circles for his defense of Jammie Thomas in her retrail, which saw her being found liable for $1.92 million in damages for sharing some 24 songs.

When Ashby Jones at the Wall Street Journal called this case a “head scratcher”, he was being polite. This case is, without a doubt, one of the strangest and most befuddling I’ve ever seen.

Analysis

Legally, the case seems to be a non-starter. On the first complaint, the facts of the case line up very closely with the Universal v. Veoh case where the video sharing site Veoh was sued by Universal for enabling users to publish copyrighted content. However, the court threw out the case in September after finding that Veoh had complied with the DMCA and qualified for its safe harbor protection.

Though the ruling in the Veoh case was very specific to the company itself, the facts largely seem to line up. I can attest that Scribd has always responded swiftly to DMCA notices and its copyright filtering system is a further sign of good faith. Scribd is not a popular site among authors and publishers, but that doesn’t make it illegal.

Given that red flag takedowns are virtually meaningless and useless, it is almost certain the courts will favor Scribd on this case. That is, barring a surprise in discovery that shows Scribd had some unexpected level of knowledge or ignored DMCA notices.

The second argument, the one involving the copyright filtering system, also looks to be equally doomed. If the Scribd copyright filter is anything like every other such filter I’ve seen, it operates on fingerprints and not the work itself (doing otherwise requires exponentially more computing power). As such, the facts of that case mirror closely the Turnitin lawsuit, which iParadigms, the makers of Turnitin, won handily.

Turnitin is a plagiarism checking service commonly used by high schools and colleges to look for matching text in student’s paper. As part of the service, it stores a fingerprint of every essay scanned to match against future works. Four students in Virginia objected to this and sued the company but lost with the judge saying that the use of their work was transformative and a fair use.

Even Camara’s argument that “They are building up a valuable asset that nobody else is going to have by taking work from authors without sharing with them the profits,” falls flat. iParadigms is actively selling access to this database and does so to many thousands of institutions. In short, Camara’s worst fears have already been realized in the iParadigms case and the judge still found it to be a fair use.

Whether you agree with that verdict or not, it is clear that it seems to put the Scribd case in a very bad spot.

To be clear, I am not an attorney but these counter-arguments only took me a minute or two to think up. They are patently obvious, especially considering the Veoh case was thrown out mere days before this suit was filed, and it makes this case look doomed to fail. However, that doesn’t mean it won’t have an impact on the copyright climate.

The Real Problem

Copyright filtering services are for the good of both the hosts that offer them and for copyright holders. Hosts don’t have to spend manpower and time removing works via DMCA that can instead be blocked at the gate and copyright holders don’t have to file notices for the same works over and over again.

Though there are some cases where a copyright holder would not want to be in such a database, for example if they only wanted to stop plagiarized uses, not attributed ones, this wasn’t the case for Scott. Since the only use a fingerprinting system has is matching one work against another, for example plagiarism detection or copyright filtering, pretty much any commercial use Scribd had found for its database would have also been beneficial.

However, Scribd has taken no such steps and expressed no intent to do so. It’s matching database, much like YouTube’s, is proprietary and closely guarded. The mere fact that they could do something doesn’t warrant a preemptive strike, especially when what they are accused of possibly doing was found to be a fair use in another case.

What this case might do, however, is make other companies more skittish about developing “takedown stay down” systems. This would likely be a major blow to the smaller artists who lack the resources to file takedown notices on every single misuse of their work but still license their works in a way where such a system would be practical.

This also might have an impact in discouraging companies from entering into areas where takedown notices might be frequent. Faced with the choice of having to spend the manpower to remove every work subject to takedown notice or being sued for a filtering system, some will likely just walk away. This, in turn, could give rise to more legally dubious sites.

After all, if showing good faith either bankrupts your startup or gets you sued, there isn’t much point in showing it at all. It may be more attractive to move to a country with more relaxed regulations and avoid the problem all together.

In short, by suing the people who tried to help her, she may be hurting every other copyright holder in the world.

Bottom Line

In the end, most copyright experts, including Ben Sheffner and Eric Goldman (who many more reasons why the outlook is bleak for Scott) are skeptical about the suit’s future.

Pretty much all of the recent case history goes against Scott in this matter but, more importantly, logic itself is against her.

Though it is understandable that authors and artists want to protect their work and profit from as many uses of their content as practical, suing a company for infringement when they are trying to prevent your work from being infringed is a classic case of cutting off your nose to spite your face. It makes no sense and will only cause more problems, most of them for other copyright holders.

This case is most likely doomed but the sooner it is thrown out the better. The more fear Scott can sew into the providers who act in good faith, the more room others have to grow.