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

1: European Commission Welcomes Ratification of the WIPO Copyright Treaties

First off today the European Union (EU) has ratified the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. Collectively, these treaties are known as the “Internet” treaties and have long formed the basis of copyright law in the EU.

Both of the treaties were negotiated and adopted in 1996 but in 2000 the EU decided to ratify them as a union, rather than as individual nations, a process that took almost a decade. The ratification, however, is largely just a formality as the contents of the treaties have already been worked into the laws of the member states and have been, for all intents and purposes, in effect for quite some time.

An announcement from the EU said that these treaties were codified to make copyright law “fit for the internet”.

2: How Serious Is Justin.tv About Fighting Live Broadcasting Piracy?

Next up today, representatives from Justin.tv will be testifying today before the House Judiciary Committee tomorrow over the future live sports broadcasting.

At issue for Justin.tv is the widespread misuse of its service to stream infringing content, including sports events, over the Web. Justin.tv has said it works with copyright holders to ensure that such misuse is kept to a minimum and maintains a strict DMCA policy but, as TechCrunch showed, nearly all of the most popular streams are, almost certainly, infringing.

Many are wondering if Justin.tv is as dedicated to fighting piracy as it says it is, and plans to testify about, and or if there is an error in its fingerprinting and identification process.

Either way, this will be a case to watch as it may have a major role in determining the future of online streaming services as they relate to copyright.

3: Best Buy, JVC, Samsung, More Hit With Lawsuit

Finally today the Software Freedom Law Center, which represents open source developers in obtaining license compliance, has filed suit against 14 electronics makers including JVC, Samsung and Best Buy. Claiming that they are in violation of the GPL license with some of their products.

At issue is a program called BusyBox, developed and released under the GPL by Erik Andersen, that often is run as an embedded application in many household electronic devices. The devices including, according to the lawsuit, BluRay players, cameras, routers and DVRs.

BusyBox is a program that integrates many common Unix utilities so that they can be easily integrated into smaller electronic devices. Though it is free to use, the GPL places requirements on those who distribute the code, including that they provide the source code and modifications for others to use in a similar manner.

The SFLC has resolved hundreds of GPL disputes but has typically been loathe to file suit, having filed only six companies since 2007 but having resolved hundreds of disputes.

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.

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

1: MySpace/Imeem Deal Leaves Thousands of Artists Unpaid

First off today, Myspace’s purchase of Imeem has left a bad taste in many independent artist’s mouth. Many who sold music through Imeem’s storefront widgets, which were very common on Myspace at one point, are likely to never see the money they earned.

Imeem had gone as much as a year in some cases without paying artists due to financial difficulties but, when Myspace supposedly purchased the company earlier this year, there was supposedly a glimmer of hope. However, that too has been dashed as now it has come out that Myspace didn’t actually buy Imeem, just some of its assets. As such, Myspace did not acquire Imeem’s debt and has no obligation to pay the unpaid artists.

While these types of deals are not uncommon, especially considering that Imeem was in foreclosure at the time of the deal, it has understandably left a lot of artists upset about the deal and feel a bit burned.

Hopefully though, this incident won’t discourage the budding independent direct-to-consumer music sale business as it does have a great deal of potential for artists and businesses alike.

2: Apple Says Audiobooks Must Have DRM

Next up today, want to distribute your audiobook via Apple and Audible but don’t want to include DRM? That might be trickier than you think. As author Cory Doctorow found out, Apple and Audible both insist upon DRM for audiobooks, even as Apple has done away with DRM in the rest of their iTunes store.

The saga started out when Doctorow tried to distribute an audio version of his book “Little Brother” without DRM over iTunes. The result was that Audible, the only authorized bookseller for iTunes, refused to allow it even though both he and his publisher were prepared to try. By the time his next book came out, “Makers” Audible was comfortable with it but Apple was not. However, even attempting to sell the book directly through Audible seemed to be an empty gesture as Audible has a EULA that functions like a DRM.

Doctorow did heap praise upon his publisher for being flexible and hardworking in trying to distribute the book without DRM, but he wishes Apple and Audible could do the same.

3: Copyright Owners Fight Plan to Release E-Books for the Blind

Finally today, various copyright groups including the RIAA, MPAA, book publishers and even the Chamber of Commerce are filing objections with a proposed WIPO treaty being discussed today by the 180 member nations. The goal of the treaty is to allow the import and export of DRM-protected works that are accessible to the visually impaired.

Currently many nations, including the U.S., provide a copyright exemption for non-profits, including the Library of Congress, to make copies of copyrighted works so they can be accessible to the visually impaired. However, the largest catalog by far is in the U.S. and current treaties prohibit the import and export of those works, limiting access to them globally. The new treaty, if passed, would change that.

The only U.S. corporation to come on the side of the treaty was Google, who has expressed concerns that this is another case of the copyright industries blindly opposing any loosening of copyright law, no matter how much public benefit may be derived.

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.

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

1: RealNetworks Appeals Injunction on RealDVD Sales

First off today, Real, the company most famous for its RealPlayer product, is appealing an injunction that is barring it from selling RealDVD, it’s DVD ripping and storage product that the movie studios have launched a legal campaign to block.

According to the movie studios, RealDVD, which allows users to rip DVDs to their hard drive and then store them for future playback, is a violation of their copyrights as it allows users to break the encryption on the DVD itself. RealDVD, however, countered and said that they did not simply break the encryption, but wrapped the ripped DVD in an encryption of its own.

The judge in the case sided with the movie studios, issuing a restraining order barring the sale of the product, an order that Real is now appealing, claiming that the lower judge used an incorrect standard when deciding to impose the injunction.

In addition to RealDVD, Real is also planning to introduce a standalone DVD player that also stores the DVDs on a hard drive for easier playback.

2: Console Modder’s Appeal Tossed in UK Court

UK citizen Christopher Paul Gilham, convicted in 2008 of modifying various video game consoles to play pirated games, has had his appeal tossed.

The appeal centered around the issue of “whether the playing of a counterfeit DVD involves substantial copying of a copyright work.” This was an issue because Gilham did not actual copy or pirate any games, but rather, simply sold and installed the chips that enabled his customers to play such games.

The court ruled that it was irrelevant whether or not the chip stored any substantial elements of the game in its ram, but rather, it was illegal because it copies some copyrightable elements, such as characters and artwork.

Copyright holders welcomed the decision and the clarification and the ruling will likely make it much more difficult for video game console modders in the UK to make a case that their activity is legal.

3: Don`t Jail Illegal Music Sharers: UN Agency

Finally today, the World Intellectual Property Organization (WIPO), which is a UN agency, has said that jailing file sharers would be counter-productive to correcting the current copyright climate and that it is imperative that alternatives, such as flat rate download licenses, be discussed seriously.

WIPO also warned that the copyright protection for music was “under the most severe stress” though similar problems could come to movies as connection speeds increase.

Though short on solutions, WIPO was quick to condemn all severe punishments for copyright infringement, including the recent Thomas/Tenenbaum rulings in the US and The Pirate Bay convictions in Sweden.

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.

In other news, a prominent economist claims that copyright is “dead”, the United States gets called on copyright hypocrisy and the record labels make news both in and out of the courtroom.

Also, as always, there is a few of our usual weird stories as, this week, the World of Warcraft winds up in the midst of a copyright dispute. No word yet if they are calling in the Horde to assist with the assault.

Remember, as usual, this week’s linkroll is a “raw” link list. Some stories are duplicated, some do not point to their original sources and some may not be accurate. A great deal of refining goes into producing the show notes for the Copyright 2.0 Show.

Note: I am moving both the linkrolls and the show notes over to Diigo to make the process easier and more consistent. If you have any issues or comments, please let me know!

The proposal calls for Linen Lab to periodically publish, among other things:

• The number of notices filed
• The average delay in action on a DMCA notice
• The number of takedowns executed
• The number of counter-notices filed
• The number of takedown notices that resulted in a putback

But while the idea is especially good for Linden Lab, whose DMCA policies have been under pointed fire in recent months, it is an idea that can easily be expanded to all Web hosts.

It is an proposal that those both in favor and against the notice and takedown provisions of the DMCA will likely agree on and something that could bring a great deal more understanding the entire process of dealing with copyright infringement on the Web.

The Importance of Transparency

One of the major problems with the current notice and takedown regime is that a copyright holder can send in a DMCA notice and track the response to it but no idea where that notice fits into the larger picture.

How many notices does a host receive? How long, on average, does it take them to reply? How many do they discard for being incomplete? How many counter-notices do they receive? These are all questions that are typically closely-guarded secrets for Web service providers.

Many fear, rightly or wrongly, that providing this information could result in legal difficulties should a DMCA dispute go into the courtroom.

However, this has made understanding the full impact of the notice and takedown system almost impossible. With few hard facts, we are left largely with just anecdotal evidence of DMCA abuses and successes. Unfortunately, this evidence is completely useless when trying to understand the larger picture and obtain information upon which future policy may be written.

Even I, having personally sent hundreds of DMCA notices to many dozens of hosts, have only a tiny fraction of the DMCA picture. My experience is colored sharply the types of cases I have handled, all of which have been plagiarism-related, and the hosts I have worked with.

Despite the years I’ve spent working with the DMCA and hosts on copyright matters, my information is, at best, an educated guess. Sadly, that’s all anyone who does not work for a Web host can provide as we can not see what takes place behind the scenes.

It is a frustrating problem and, sadly, the attempts to address it have largely failed.

Past Attempts

The Chilling Effects database is probably the best-known attempt to provide DMCA transparency.

The idea was to provide a site that hosts and search engines could submit DMCA notices to and have them published publicly (minus personal information). This would, theoretically, allow researchers to access the database and draw conclusions about how the DMCA was being used.

The idea, initially, received a great deal of support and key Internet players, most prominently Google, promised to send all of their DMCA notices to the database.

However, the database has fallen into hard times. Few new letters are published, the most recent on March 5 of this year, and most of the ones that are published are controversial ones such as the Air Force DMCA notice and the recent moves by the NFL.

Google, in their auto-reply to submitted DMCA notices, still says the following:

“Please note that a copy of each legal notice we receive is sent to a third-party partner for publication and annotation. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects for publication.”

But despite that, none of my notices in the past few years have appeared in the database. In fact, only one notice from me appears at all and it is from 2005.

Chilling Effects was used for one study back in late 2005. The report, authored by Jennifer Urban of the USC Gould School of Law, found that nearly 1/3 of all DMCA notices were improper in at least one way. However, as I pointed out in my original article, the use of Chilling Effects may have biased the findings due to the nature of the service.

Unfortunately, the full study has not been released as of this writing and is listed as being “forthcoming” on Urban’s faculty page.

Outside of Chilling Effects and anecdotal accounts from hosts, such as Dreamhost’s recent blog entry on the topic, there has been very little in the way of hard data about how hosts respond to DMCA notices.

A Proposal

Clearly there is a need for hard data in this area and the only people that can provide it are the hosts and search engines. Therefore, there is a need for a broad push to improve transparency in the DMCA process.

However, that being said, a database of actual notices, such as Chilling Effects, is likely not the way to go. Such a database would either be incomplete or too large to be practical.

However, even if we had nothing more than numbers and general information about policies, it would provide us a much better understanding about the DMCA process than what we have now. To that end, Merideth’s proposal is fairly sound.

The idea of encouraging hosts to provide regular updates as to their DMCA actions makes sense. It not only helps copyright holders understand how the the host responds to notices, but it helps users of the site know what to expect should a copyright issue arise.

However, I would make the following changes to Merideth’s proposal to make it more applicable to practical for hosts:

1. Make the Report Quarterly: Monthly may or may not be practical for Linden, but most Web hosts would be doing good to create just a quarterly report. That should be fine in most cases.
2. Eliminate Information That Isn’t Necessary: Initially at least, we should focus on the core information. That would include the number of notices received, the number discarded, the number that resulted in a takedown, the average time between receipt and takedown and the number of counter-notices received. If hosts are comfortable providing more information, that would be great, but since most are not under the level of scrutiny Linden Lab is under, it makes sense to request less.
3. Add Policy Information: Right now, what happens after a DMCA notice is filed is something of a mystery. From talking with hosts I know how some handle it, but there is precious little information about how a notice goes from a submission to a takedown. This might make a natural addition to all Web host’s copyright pages and would be largely static unless there was a change in procedure.

In addition to those changes, I would also suggest that hosts provide a random sample of the DMCA notices they received to an online database similar to Chilling Effects. It would not be necessary to send every single one, just a statistically significant percentage. Hosts could, possibly, send every twentieth or hundredth notice to the database depending on how many they receive.

The bottom line though is that any information we can get that goes beyond the anecdotes and horror stories we have to work with will be a drastic improvement over the current situation.

Conclusions

In the end, it is unlikely that hosts will release this kind of information voluntarily and even less likely that any kind of legislation will require them to do so.

Though those of us who are interested in copyright law, both for and against the notice and takedown provisions, would greatly appreciate transparency from the hosts, these types of statistics are considered closely-guarded secrets and will almost certainly remain that way.

In addition to legal issues that may arise from releasing such information, especially if a host is slow or unresponsive to DMCA notices, many fear that it will color customer perceptions if it is known just how many notices they receive and act upon.

Sadly, it is an area where practical business decisions may overshadow the need for good information and good policy. Few hosts are going to spend time and money to publish information many would consider unsavory, no matter how important it might be.

Still, it would be nice to see hosts take initiative in this area and do something to help others understand just how the DMCA is used. If a host wants to criticize the current law, then giving the public and the government the information to make sound decisions is the first step to fixing the problem.

Without that, then there is pretty much no hope of the law ever changing.