Except Viacom might have a little less contempt for you than it might originally be thought.  The General Counsel at Viacom (the entertainment behemoth responsible for Showtime, MTV, Comedy Central, BET, Paramount Pictures, and a slew of other holdings) recently addressed Yale law students, and he let them know that suing infringers felt like terrorism, and that he’s a big fan–really!–of fair use. What he’s most interested in, he says, is copying the entirety of a particular content.  (Source)  (He’s also a fan of DRM–though not in the way it’s been implemented, and of three-strikes laws, which is something’s I’m planning on taking up a little later.)

There’s a video of the talk on YouTube, and it might be worth taking a look-see.

I was under the impression that municipal Wi-Fi was a dead idea that municipalities had abandoned a couple of years ago.  Apparently, Coshocton, Ohio didn’t get the memo, because it’s municipal Wi-Fi network has been shut down by the MPAA.

Well, that’s what Gizmodo’s saying, based on a BoingBoing report.  Apparently, the town’s entire network was shut down due to a single user downloading something that was copyrighted.

But really?  How did this happen?  The way things are written, it sounds like the MPAA discovered the illegality and pulled the plug on the network.  Can things actually go that way?  Hmmm… even as powerful as private entities are, surely they don’t have the power to summarily wipe out a public service.  Right?  More digging is necessary!

BoingBoing got the tip from the Coshocton Tribune, which carries a headline: “Illegal Movie Download Forces Shutdown of Free Wi-Fi.”  Apparently what happened is that the ISP (OneCommunity) was notified by Sony Pictures Entertainment that a movie was illegally downloaded over the network.  In turn, the ISP notified the county’s IT Department.  And I guess the IT Department yanked the plug?  It isn’t clear from the article; after explaining the chain of events, it goes into how piracy is bad.  So don’t pirate things, kids, okay?!?!?!

I’m not entirely sure why the decision to pull the plug was made.  ISPs were given safe harbor protections under the DMCA to protect them from the infringing activities of their customers.  (See 17 U.S.C. § 512; see also this Chilling Effects FAQ.)  The requirements for staying in the safe harbor are many, but suffice to say, if the ISP keeps its hands off stuff, then it’s pretty much in the clear. And that means that the town overreacted by pulling the plug, and–based on the scant information I’ve seen on this–I’d say it’s as much to blame as the MPAA is in this situation.

Oh well, I guess that’s why we’re not allowed to have nice things.

I mentioned a while ago that ASCAP was suing AT&T over ringtones, saying that royalties were owed every time someone’s phone rang.  Public performance and all that.  Well, in addition to suing AT&T, ASCAP sued Verizon for the same thing, and PC World (via Yahoo!) is reporting that District Judge Denise Cote of the Southern District of New York has tossed the suit against Verizon.

Judge Cote’s reasoning is refreshing:

“Despite the accusation that Verizon enjoys revenue from publicly played ringtones, Verizon makes no revenue from the playing of ringtones, in public or elsewhere,” Cote wrote. “It makes revenue from selling ringtones, and it already pays a mechanical licensing fee in connection with those sales.”

The Center for Democracy and Technology, which is hosting a copy of the Order, also notes that the Court relied partly on common sense in making its ruling.  It always seemed somewhat strained to argue that Verizon should be liable for a public performance (even to the extent that a ringtone could constitute a public performance) when it had no control over when or how that public performance would occur.

France can be a strange country.  (And in other news, cats can be aloof.)  Well, perhaps it isn’t so fair to single France out; all countries have their peculiarities.  But France occupies a special place in the imagination, a land where the country is brought to a halt at the drop of the hat, where work-shortened weeks lead to hours lazing at cafes discussing politics and eating brioche, and where everyone is–generally speaking–trop <<cool>> pour l’école.

But then the country proposes what some are calling some of the most Draconian copyright laws in the world, and that leads to a bit of headscratching.  For the uninitiated, France passed a law in April that threatened to ban an individual from the internet if that person is thrice detected of downloading infringing material.  (The Register has the details.)

The law, however, was declared to violate the 1789 Human Rights Declaration on the freedom of expression.  (Bloomberg.)  Donc, the French tried again, and the lower chamber will be voting today on a revised bill.  The largest change is that some form of due process has found its way into the legislation, with the “Surveillance Authority” losing the ability to summarily disconnect the user (the case must first be submitted to a judge) and with authorities having to prove the unlawfulness of the behavior.

Settlement agreements rarely get the amount of scrutiny as the proposed agreement in the Google Books controversy, and now the Register of Copyrights, Marybeth Peters, has testified to Congress about the settlement.

While there are parts of the settlement that meet Ms. Peters approval (“some of the settlement terms have merit and should be encouraged under separate circumstances” such as the potential for the registry to “offer the copyright community, the technology sector and the public a framework for licensing works in digital form and collecting micro-payments in an efficient and cost-effective manner”), by and large her remarks were critical, noting that “none” of the potential positive “possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so.”

So, if the head of the Copyright Office has thrown her opinion into the mix (it’s unclear whether the Office will be filing a brief with District Judge Chin) what does that mean for the approval of the settlement?  And might the settlement actually be one of the rare moments when a non-litigated case creates precedent?

To get there, we need to look at the Federal Rules of Civil Procedure 23(e), which states that “[t]he claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval.”  There are five procedures that apply to a proposed settlement, the most relevant for these purposes being the second: “If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.”  Furthermore, generally, the District Court is not allowed to simply say “I approve of the settlement” or “I disapprove of the settlement”; it “must ‘undertake an analysis of the facts and the law relevant to the proposed compromise’ and ’support [its] conclusions by memorandum opinion or otherwise in the record.’ … ‘A mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law will not suffice.’” United States v. Alabama, 271 Fed. Appx. 896, 901-02 (11th Cir. 2008) (internal citations omitted).

The standard on appeal for class settlements is whether the District Court abused its discretion in making its decision.  See id. at 902.  Thus, if District Judge Chin ultimately rejects the settlement, an appeal could be heard arguing that he abused his discretion in doing so.  And if that happens, then it is possible that the concern I touched on the other day won’t necessarily come to pass (i.e., that settling the case will prevent an understanding of how copyright law is developing in the courts.)

Only time will tell what will happen, and all I know is that this settlement proposal is one of the more interesting legal developments I’ve seen in a while.

Google has always been a problematic company for me.  On one hand, its search engine has become the de facto starting point for the vast majority of internet users, so much so that when Google goes down (as it will from time to time), people say that the internet is broken.  (See this Ars Technica article.)  Its clean, uncluttered search interface revolutionized searching, and its results were usually spot-on, with its “I’m Feeling Lucky” feature almost always taking you where you wanted to go.  In recent years, however, my experience with Google’s ability to find what I’m looking for has dwindled as SEO services have cluttered up search results, which is why I often use Bing or Yahoo! in addition to or instead of Google.

I’ve complained before of Google’s data-mining and -tracking, as well as its emphasis on “Cloud” computing. And now, there’s a new bug in my craw: Google Books.

Google Books is Google’s attempt to make a vast digital library, having already scanned in, by Google’s own admission, approximately 7 million books.  (Source.)  A large number of these books are out of copyright, which does not offend me from a copyright perspective.  Another chunk of books are in copyright but out of print.  And the last chunk of books are in copyright and in print.

Scanning the in-copyright books is undoubtedly an infringement of copyright, regardless of whether Google made the entire book available for reading on-line.  See 17 U.S.C. § 501(a) (“Anyone who violates any of the exclusive rights of the copyright owner … or of the author … is an infringer of the copyright or right of the author, as the case may be.”)  And as we saw with Jammie Thomas, the penalties for infringement can be very severe, up to $150,000 per work infringed.  (See 17 U.S.C. § 504(c)(2).)

Google, for its part, claimed that it was protected by fair use, and a class action suit was filed in the Southern District of New York.  It would have been very informative if the case had been able to go to trial, to assess whether Google’s argument would have prevailed.  But now there is  a settlement in place, pending final approval by the Court.  According to Wired, the settlement is for $125 million dollars, and Google gets the right to sell subscriptions, sell individual books, place advertisements around the books, and make other commercial uses of the books.  (See the Agreement, page 19.)  In exchange, Google will remit 63% of revenues into a Registry, which will distribute the revenues to the rightsholders.

Additionally, Google will pay a minimum of $45 million into a settlement fund, which will be distributed in the following way:  $60.00 per Principal Work (i.e., the principal written work of a book, absent forwards, afterwords, or annotations, etc.); $15.00 per Entire Insert (Inserts are things like forewards, afterwords, prologues, essays, letters, song lyrics, children’s book illustrations, musical notations, and tables, etc.); and $5.00 per Partial Insert (“an Insert other than an Entire Insert”). In addition to the $45 million, Google will pay $34.5 million to fund the launch and initial operation of the registry. (Agreement pages 19-20, 61-62) And, of course, the lawyers get a nice chunk, not more than $30 million.  (Agreement, page 64.)  (That doesn’t add up to $125 million, though…)

The National Writers Union is unhappy with the settlement terms, and they have joined the Open Book Alliance, which is, to me, an odd marriage; the Open Book Alliance states as its mission the mass digitization of books.  (See the OBA’s Mission page.)

Copyright infringement, however is not Google’s only problem.  Privacy concerns have cropped up.  (Source.  See also.)  This is because of Google’s ability to track each person who reads a book through Google Books.  You may not recall, but the USA PATRIOT Act’s provision allowing the issuance of “National Security Letters” set off a small firestorm.  The NSLs allowed the FBI to request a wide variety of records, including what individuals were checking out of libraries, and it prevented the recipients from even seeking the advice of counsel in response.  (That provision has since been amended to allow access to counsel.)  Cases challenging NSLs are still winding their ways through the courts.

What Google Books is able to do, however, is not just get information on what people are checking out, but what people are searching for, and just glancing at.  Google can tell that I just searched on Google Books the following: “The Anarchist Cookbook”; “Bomb Making”; “How to Make a Bomb”; and “How to Rob a Bank.”  Not all the results came up relevant, and I didn’t click through to any (except for the Anarchist Cookbook, which is not digitized), but I created a trail that is discoverable.

Admittedly, Google’s data retention means that the government would have one extra step to determine what it is that I’m doing, but the data is there if need be.  In response, then, the FTC wants more consumer protection.

According to a speech given by Commissioner Pamela Jones Harbour on September 3, 2009, “Google cannot currently articulate a comprehensive privacy policy for Google Books.”  However, Google has published a Privacy Policy that Google claims goes above and beyond its normal privacy policy. For example, you will be able to edit what appears on the “My Library” feature; your IP address and cookies will be used to restrict how many pages you can see of a book, in a given situation; and in the event a NSL-type request is sent, Google says it will adhere to “books laws” in jurisdictions where such laws exist, and that Google “is committed to notifing the affected user if we receive such a request that may lead to disclosure of their information; if we are permitted to do so by law and if we have an effective way to contact the user, we will seek to do so in time for the user to challenge the request.”  And furthermore, under the general privacy policy, Google says that logging out of your Google account will keep Books searches from being linked to your Account, but of course Google will know your IP address and, presumably, your cookes.

So, in sum, Google says its committed to keeping you safe and private, but time will tell whether that will happen.

(As an aside, Commissioner Harbour mentioned in her speech a fascinating development vis-a-vis antitrust: “there is a nexus between privacy and competition, and [] privacy issues may be cognizable under the antitrust laws (for example, as a non-price dimension of competition).”  Additionally, the Antitrust Division of the DOJ is conducting an investigation to determine whether the Google Books settlement violates the Sherman Act.  Interesting stuff.)

Following up on yesterday’s post about the AP and its “mad as hell” posturing, we are beginning to see some of the lunacy involved with its new approach.  TechCrunch, which I reached by going through Gizmodo, has a story about how an AP affiliate got a C&D letter for posting an AP video, which was hosted on the AP’s YouTube page.  Go figger.

My last post (three weeks ago, natch) suggested that the studios would find some way to sue RealNetworks for its software, RealDVD, even if Real wasn’t hacking the encryption.  Looks like I was right, and for the same reason:

Six major movie studios sued RealNetworks, the Seattle-based digital media company, on Tuesday over its new $30 software program that allows people to make digital copies of their DVDs.

…

For their part, the studios argued in legal filings that the software violates the 1998 Digital Millennium Copyright Act because it bypasses the anticopying mechanism built into DVDs.

(From the NY Times, emphasis added.)

According to a blog on Fortune’s site, Real Networks (buffering…………..) has unveiled a new DVD ripping technology that doesn’t hack the encryption on DVDs.  This, so it seems, makes copying DVDs “legal.”  It must work somewhat similarly to VHS dubbing, but I don’t know.  I’ll look into it.

I hesitate to say that all of a sudden, everything’s “legal.”  Indeed, I’m not even sure that it doesn’t run afoul of 17 U.S.C. § 1201.  Section 1201(a)(1)(A) states: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  In turn, under section 1201(a)(3)(A) “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”  (Emphasis added.)  I can certainly see the MPAA deciding that Real’s technology somehow avoids or bypasses the encryption process.  And this doesn’t even begin to get into fair use or the whole time- or space-shifting argument.

Anyway, these thoughts are just based on a quick, cursory glance at a blog.  I’m going to follow up on this story and see what else I find.