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

1: Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use

First off today, Righthaven, already stung by a legal defeat that calls into question their contract with Stephens Media to pursue copyright infringer, has lost another round with a judge ruling that the republishing of an entire article from the newspaper was a fair use. According to the judge, Righthaven could not show how the market for the work was harmed by the use and that the nature of the work, with little original content, it was not at the “core” of copyright protection. As a result, the judge ruled that the republishing of the entire article was a fair use, ruling in favor of Wayne Hoehn, the alleged infringer. Hoehn’s attorneys are expecting to petition the court to force Righthaven to pay their costs.

2: Oracle Copyright Suit Seeks Billions from Google

Next up today, the full scope of the Oracle/Google copyright lawsuit is seeing the light of day as Oracle makes it clear they are seeking damages in the billions of dollars. The case centers around Java, which Oracle acquired from Sun Microsystems. Oracle accuses Google of infringing both copyrights and patents with their use of Java, including in the Android operating system. Google has countered Oracle’s assertions saying that their logic for determining potential damages is flawed but also moved to put the case under seal to protect confidential information.

3: Microsoft Misusing Copyright Law in Xbox Antitrust Lawsuit, Group Says

Finally today, the EFF has filed a brief in a case that pits Microsoft, the makers of the Xbox 360, against Datel Design & Development. The suit stems from a 2009 firmware update to the Xbox 360 that locked out third-party memory modules, such as those made by Datel. Datel sued claiming it was an antitrust violation to do so but Microsoft defended themselves claiming that Datel violated the DMCA by circumventing the protections in the operating system to enable cheating and unauthorized access to the system. In their brief, the EFF claims that the DMCA was not meant to prevent cheating and was solely meant to prevent access to copyrighted works. They are asking the judge to toss out Microsoft’s defense, calling it an abuse of the law.

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.

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a big week for copyright news and it seems a lot of stories just missed the cut off. If you’re someone who buys software, wants to protect your intellectual property or just likes watching a bit of television, this is a show you don’t want to miss.

This week’s stories include:

• 9th Circuit Upholds EULAs, Blocks Software Resale
• Microsoft Works with Russian NGOs to Prevent Raids
• Switzerland Rules IPs to be Private Data
• British ISPs to Shoulder Some Cost of Piracy Enforcement
• Online “Cable Company” Rides Legal Fine Line
• Righthaven Passes Two Key Challenges

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: Cor Blimey! British ISPs Must Fund P2P Copyright Crackdown

First off today, in the UK, the Department for Business, Innovation, and Skills has answered the question about who should shoulder the costs for sending the piracy warning letters mandated under the Digital Economy Act. ISPs, who will be sending the letters to their customers at the direction of copyright holders, felt that copyright holders should have the sole obligation. Copyright holders, however, felt since ISPs gain some benefit from piracy they should take at least some of burden. The government seemed to agree more with the latter, splitting the cost 75/25 with copyright holders taking on the lion’s share. Both sides, however, seem to be equally unhappy with the ruling.

2: Why is Microsoft offering free software to Russian NGOs?

Next up today, Microsoft was accused earlier this week of helping the Russian police raid dissident organizations within the country by providing a pretext for enforcement, namely piracy enforcement. This came after a wave of anti-piracy raids against organizations in Russia with views critical of the government. Microsoft has responded by offering a free license to non-government organizations working in Russia so they will have a free license to use their software to avoid similar raids in the future.

3: Vivid Files $1.2M Copyright Infringement Lawsuit Against ICG

Finally today, porn company Vivid has filed a lawsuit against Phoenix-based Internet Commerce Group (ICG) claiming that the company has made many of Vivid’s videos available for download to its members without authorization. This follows a similar lawsuit by Falcon Foto. Vivid is seeking $1.2 million in statutory damages for what it says is a minimum of ten violations.

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.

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a busy week for copyright news but the big story this week was something of a rarity, the Supreme Court handing down a ruling in a copyright case. Even more important, it is a ruling that could potentially impact all copyright holders in a big way. There was also tons of other great news stories including Microsoft being caught in a DMCA tiff with Cryptome, another update on ACTA and much, much more.

All in all, there were thirteen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• The Supreme Court Saves a Major Settlement
• Microsoft Backs Down Over Cryptome Takedown
• Britain’s Digital Economy Bill Stirs More Controversy
• iiNet Case Far From Resolved
• Are We Safe From Rickrolls?
• And Many 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.

1: iiNet in Hollywood’s Sights as Battle Resumes on Copyright Ruling

First off today, it seems that the iiNet case is far from over. The Australian Federation Against Content Theft (AFACT), which represents some 34 record and movie studios, is filing an appeal in its case against Australian ISP iiNet, which it lost in the lower court. AFACT accuses the ISP of enabling and encouraging copyright infringement though the lower court ruled the service was not liable. AFACT is focusing on its appeal on whether or not iiNet had authorized infringements on its service.

2: Copyright Abusers Get Three Warnings Before Termination

Next up, New Zealand has formally introduced its revision of the controversial Section 92a law, which will now create a “three strikes” regime in the country, making it so that that alleged file sharers will be disconnected after two warnings. There is not much new in the proposal considering it had been discussed beforehand but the bill does replace the first proposal, which was done away with after a swarm of protests called it draconian. While many believe the revised version to be an improvement, however, it seems to have done little to appease the earlier critics.

3: Microsoft Backs Down Over Online ‘Spy Guide’

Finally today, Microsoft has rescinded its DMCA takedown against an intenral “spy guide” that had been leaked to site Cryptome.org. The takedown notice had resulted in the controversial site being shut down after they refused a request from their host to delete the file. Microsoft said that, while they believe that the posting of the file is an infringement, they had no wish to shut down the entire domain and have asked for the work to be restored.

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.

1: Labels Offer to Settle Thomas-Rasset Case for $25,000 Donation to Charity

First off today, almost immediately after the judge in the Jammie Thomas file sharing trial reduced the damages award from $1.92 million to $54,000, the record labels came back and offered a settlement of $25,000 to charity and a vacation of the remittitur order that reduced the judgement. Thomas’ attorneys responded quickly, rejecting the offer saying that they would not accept any offer that forced their client to pay any money. This has set the stage for the RIAA to likely undergo a third trial in the case, this one solely on the issue of damages.

2: Amazon and Others Slam Revised Google Books Deal

Next up today, the objections to the revised Google Book Search settlement are now flowing in including many of the strongest objectors to the first settlement such as Amazon. The settlement, which allows Google to scan, display and sell copies of in-copyright but out of print books was revised to address antitrust issues raised by the Department of Justice. Many companies, including Amazon, are concerned the settlement may give Google too much power over the digital book industry.

3: Microsoft Sues Prominent BitTorrent Tracker For $43m

Finally today, Microsoft is joining forced with Lithuanian anti-piracy outfit LANVA in filing a $43 million lawsuit against the largest bittorrent site in the country, LinkoManija, and its administrator, Kestas Ermanas.Kestas, however, said he was surprised by the action as Microsoft has never sent a takedown request to the site, something they had offered to do for them, and he stopped running the site in December of last year.

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.

Microblogging service Plurk dropped a bombshell on its site yesterday when it accused MSN China of plagiarizing its service in the creation of its new product MSN Juku, which launched in November.

Plurk, a small startup in the Microblogging field, has not gained much traction in the U.S., especially when compared to Twitter, but has found success in Asia, especially Taiwan, which they consider their biggest market, and had been growing rapidly in China before being blocked by the nation’s firewall. With that in mind, the opening oif MSN’s Juku service was not just a competitor to Plurk, but competing with them in a market they had been doing well in but were removed from.

But what exactly happened in the case and is the fallout going to be? We’re going to take a look at this case, both sides of the story and try to find out just that.

Background

Sometime in November, Microsoft China launched its MSN Juku microblogging service. Almost immediately, technical bloggers in the area noticed the extreme similarities between the new service and the more established Plurk, as this automatically translated post shows (Note: Plurk provided the link).

However, as Plurk developers began to delve into the code of the new Microsoft service, they began to find that the similarities were not just skin deep. According to their blog post, approximately 80% of the client and product codebase appears to have been lifted from Plurk directly.

The story broke across the Web almost immediately. Plurk, though not widely used in the U.S., is well-recognized, especially in tech circles, and the David vs. Goliath struggle of a startup being victimized by a global giant like Microsoft made it all the more interesting.

But the story left a lot of unanswered questions, including “Why Microsoft would do this?” and “What is next fr MSN Juku?” answers I tried to get the answer to.

Plurk’s Side

I reached out to Plurk for their side of the story and received a lengthy reply from Dave Thompson, Plurk’s Asia Pacific Press Contact.

According to Plurk, the situation runs much more deeply than indicated in the post. According to Plurk, the code reusage wasn’t simply a “copy and paste” job as Plurk’s code is proprietary and not easily accessed. All of the code, both client-side and server-side would have needed to be decompiled and cleaned up to be ready for usage on MSN Juku. As Thompson put it, the process would have required someone to “spend some real effort” to obtain and use the code.

In short, this wasn’t a straightforward plagiarism job, but something requiring time and skill.

When asked how certain Plurk was about the allegations, Thompson said the following:

We would not be going out with this story if we weren’t fully confident in our allegations of willful intent on their part in taking our code.

Thompson also highlighted several other similarities between the two code sets including that both sets of intenal vars use short names on internal code (A, B, C, etc.) and long ones on client-facing code (variablename, username, etc.).

As of his letter to me, Thompson did also say that Microsoft had not contacted them regarding the incident and that they had not been in touch with Microsoft either. In short, the two sides aren’t talking to one another, apart from the public statements, and there has been precious few of those as well.

Microsoft’s Side

Microsoft did not return my request for comment but has issued a public statement regarding the matter.

According to Microsoft, the code was not written by developers working for Microsoft or their joint venture that makes up MSN China, but rather, by a third-party vendor. They say that they are working with MSN China “to investigate the situation.”

Without mentioning Plurk by name, Microsoft acknowledged that “questions have been raised about the code base comprising the service (MSN Juku)” and that they have disabled the service while they look into the matter.

It’s a very ugly, if temporary, end to a short-lived product but it is clear that Microsoft responded relatively quickly to the matter. Still, it may not be an end to the case.

Future Direction

When asked what their ideal conclusion to the case would be, “We were really just hoping they’d pull down the existing site and reevaluate their strategy in China.”

It seems now that the first half of that has happened already and the public black eye for Microsoft may force the second. However, with the two sides not actively talking, it appears likely that the case could easily go to the courts, something Plurk has begun exploring the possibilities of. However, the acknowledge that there are a lot of thorny issues for a small startup to overcome, none the least of which is venue. With at least three countries involved (Plurk is based in Canada, Microsoft in the U.S., MSN China and the vendor in China) it’s unclear what the correct venue would be and if it would be worthwhile.

In the end, Plurk will likely leave the decision up to their counsel.

In the meantime, on Microsoft’s side, it seems likely that this is the end for MSN Juku in its current format and it seems likely there may be legal or other action against the vendor involved, which has not been named yet. According to Microsoft, MSN Juku was only in beta but it seems likely that it will remain down until it can be rewritten, if nothing else than to be certain the code is clean.

The end results, as TechCrunch noted, is that Microsoft ends up looking very ridiculous and this may be the best thing to have happened to Plurk in some time, at least from an awareness standpoint. Though Microsoft seems to be fairly far removed from the alleged infringement, which was done by a vendor of a joint venture partially owned by them, it was their name on the service and their reputation to be hurt.

Whether or not this case goes to the courts, Microsoft has a lot of work ahead of them in regards to damage control and Plurk’s status received a huge boost on both sides of the Pacific.

How this will affect Microsoft’s reputation in Asia remains to be seen, especially if the “plagiarist” label will stick, but the short-term effects are very clear.

Bottom Line

Normally I am loathe to encourage shame tactics when it comes to resolving plagiarism disputes. However, it is hard to argue with the results in this case. Not only has Microsoft closed MSN Juku, but the company has taken a black eye over the affair and Plurk is back in the headlines in a relatively positive way.

That being said, this might have been a somewhat unique case. Not only is there no doubt as to the time frame of the two services, but Plurk was able to provide some convincing evidence and was able to be very certain of the infringement before moving forward, part of why it took them almost a month to say anything.

I don’t want to encourage anyone to use their blog as a tool to resolve plagiarism issues. Not only could it have been legally dangerous for Plurk if they had been wrong, but they would have been staring down the barrel of a much bigger opponent. Still, the evidence in this case seems to be fairly clear and public sympathy is on their side. There wasn’t much risk of being wrong or being thought of as a bully.

However, I still would have preferred it if Plurk had approached Microsoft privately about this matter beforehand. Though the results have been positive for Plurk, they come at the potential expense of burning bridges with Microsoft. Given Plurk’s issues within China, Microsoft could have been, or still could be, a powerful partner.

It seems odd to close those doors based upon a misstep, albeit a major one, by a vendor.

In the end though, we’ll have to wait until we hear more from Microsoft to explain what happened, where the failings were and what they are going to do to prevent it from happening again. Even if it is just a shady vendor, it raises serious questions about Microsoft and MSN’s vendor selection and oversight.

This is not a mistake Microsoft wants to repeat, especially if the next person infringed is far more litigious in nature.

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

1: Judge: ‘HOPE’ Artist Can Switch Lawyers in AP Suit

First off today, Shepard Fairey, the much beleagured artist of the Obama “Hope” poster, found himself in court again yesterday. However, this time, he got some good news as he was allowed to change legal teams. His previous attorneys, headed by Anthony Falzone from the Stanford Center for Internet and Society, had asked to withdraw after it was discovered that Fairey had falsified evidence in the case.

Fairey, who is being sued by the Associated Press, after suing them first, is accused of violating the AP’s copyright in the creation of his now-famous poster. Fairey claims that his use is transformative and, thus, qualifies as a fair use. However, Fairey had originally claimed that he had used a different picture, one with George Clooney in it as well, something the AP disputed. However, Fairey pushed the issue, even after discovering he had made a mistake, going as far as to submit false evidence. After he admitted to doing this, his attorneys filed a petition to remove themselves from the case, which the AP opposed.

However, the judge sided with Fairey’s attorneys and he will now be represented by, among others, Geoffrey Stewart of the Jones Day law firm and William Fisher III. Stewart is also the director of the Berkman Center for Internet and Society at Harvard University.

The judge does not expect any delays in the case, seeking a trial by early summer, and the next hearing is scheduled for March 5.

2: Microsoft Pulls Windows 7 Download Tool

Next up today, Microsoft has once again earned the ire of open source advocates and has removed, at least temporarily a product it was offering at their request.

The application, a tool used to install Windows 7 on netbooks and other computers with a DVD drive, appears to have used source code from the open source application ImageMaster, without complying with the requirements of the GPL, including the disclosure of alterations to the source code. Microsoft has removed the product while it evaluates the situation and apologizes for any inconvenience.

Microsoft has had several run ins with the open source community, even as they have been more aggressive in courting them in recent years, including releasing several projects under open source licenses.

3: Man Presses $400 Billion Lawsuit Against Bon Jovi

Finally today, for those who like a little bit of weird news with their copyright diet, we have an appeal in the $400 billion (yes, billion, with a “b”) lawsuit against Bon Jovi.

According to the lawsuit, in 2004 Samuel Bartley Steele released a song entitled “(Man I Really) Love this Team,” as an ode to the Boston Red Sox. Copies were sent out to executives of the team as well as players and others involved with the team. Then, in 2007, during the playoffs, Bon Jovi released “I Love This Town”, which was used by MLB to promote baseball on television. According to Steele, the song is an infringement of his work but even his own musicologist testified they weren’t very similar. This caused the judge in the suit to toss it before it went to trial, saying that no reasonable jury would believe it to be an infringement.

However, Steele has now appealed the ruling, letting the lawsuit live for another day. That is, at least until the appeal gets shot down…

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.

1: Microsoft: Google Books is illegal ‘joint venture,’ not settlement

First off today, Microsoft has filed a much-anticipated objection to the Google Book Search settlement, saying that it amounts to an illegal “joint venture” not a settlement to a legal matter.

According to Microsoft, the settlement, which would allow Google to scan and post in-copyright but out-of-print works in its search engine in exchange for a share of revenue to writers and publishers, is anti-competitive and against the law. Specifically Microsoft objected that the settlement would cover future infringements as well as prior ones, gives Google vast rights that are not in the law itself and publishers have side deals with Google that have led some to exclude their own works from the deal while negotiating for others.

Microsoft highlights that the law firm for the plaintiffs, Publishers and the Author’s Guild, even called the deal as a joint venture rather than a mere settlement, something that it hopes will provide it with ammunition to stop the settlement from going through.

2: Last chance for input on copyright legislation

Next up today, if you’re a Canadian wanting to comment on impending new copyright legislation, you need to do so quickly. The cross country townhalls are over and the deadline for filing your comments is this Sunday.

You can file your comments online here as well as read comments posted by others.

Canada is looking to update its copyright code, which was last updated before the Internet became common.

3: Don’t Copy That 2

Finally today, something a bit more lighthearted. The famous anti-software PSA Don’t Copy That Floppy has become something of an Internet Meme for its bad nineties rapping and out of date technology. However, the Software and Information Industry Association has released a sequel, Don’t Copy That 2, which you can view at the link above.

The video is an update and a follow up to the first, using the same rapper but updating the message for modern technology and changing the look of the video to be somewhat more modern. Though it is still more than a little bit comical, featuring dancing Klongons and a scene where agents arrest a teen’s mother, the humor seems to be more intentional this time around.

In the end, all you can do is watch the video and judge for yourself.

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.

1: Coalition to challenge Google Books settlement

First off, opposition to the Google Book Search settlement continues to grow but now we’re seeing not just authors in other countries, but heavy hitters right here at home. Microsoft, Amazon, and Yahoo are joining up with the Internet Archive and several library associations to oppose the settlement. All of this is taking place under the co-helm of antitrust lawyer Gary Reback. This is according to Peter Brantley, the Internet Archive’s director.

The settlement, which is between Google and the Author’s Guild and the Association of American Publishers, allows Google to scan and display portions of in copyright but out of print books. In return authors and publishers get paid a small amount for each book scanned as well as receiving ad revenue and royalties from sales.

Opposition to the deal has been growing since it was announced, largely from authors, domestic and foreign, unhappy with the deal and competitors, such as the Internet Archive, who fear they will be unfairly shut out of the book scanning business.

2: Flickr v. Free Speech. Where Is Their Courage?

Next up today, we have some updates on the Flick/Obama photo controversy but it doesn’t seem to be doing much quell the uproar.

Flickr has confirmed in a forum comment that they received a DMCA takedown notice over the image, which pictured Obama with photoshopped face paint to make him look like Heath Ledger’s Joker, but did not say from who. There are several potential parties who could have sent such a notice, including the person who created the Photoshop work itself, which was reportedly done for a Photoshop tutorial and not a political statement, though it later came to be used as such.

However, as the article points out, Flickr went above and beyond in removing the work here, including deleting the page the work was featured on, along with its comments. A lot of material not in dispute was lost for this reason. The Flickr account holder, according to Flickr, is free to file a counter-notice and have the work restored. This seems likely as there would be a strong fair use argument for the photograph, especially if the rightsholders to the original image were the ones filing.

Despite this, many have said that Flickr should have stood by its user on this one, keeping the image up given the fair use issues and have accused Flickr of wanting to remove the image, as they have allegedly done with other anti-Obama accounts.

3: China Jails, Fines Distributors of Pirated Software

Finally today, Microsoft is hailing a piracy conviction in China. Hong Lei and Sun Xianzhong, founders of Chengdu Gongruan Network Technology Co. and two others were fined 11 million Yuan and sentenced to two and a half years in prison for pirating software, including Microsoft Windows, which was repackaged for free as “Tomato Garden Windows XP”.

China, though now the second largest PC market by shipments, has been a tough market for Microsoft and others to break into. Microsoft, according to the article, has already tried to lure in would-be pirates with steep price cuts, up to 70% off in some cases, but the underground market still thrives in the country.

Suggestions

That’s it for the three count today, we’ll 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.