Category Archives: Law
Piracy and Game of Thrones
Over the week I’ve seen the headline over and over describing how HBO’s Game of Thrones show is set to be the most pirated TV show ever.
Most of these people blame HBO, because the only way to get the show rightfuckingnowthissecond is to subscribe to HBO. Which means you have to subscribe to Cable, since you can’t just pay HBO to stream their programming over the internet. Otherwise, you have to wait 6 whole months for the series to come on DVD (or iTunes). So, the only solution is to illegally pirate/download it. Of course.
This idea has been discuss ad naseum over and over lately.
“HBO hasn’t helped the problem by making the show tough to watch online for the young and cable-less,” notes Greenberg. “The show isn’t available through Hulu or Netflix, iTunes offers only Season 1, and using HBO’s own streaming site HBO Go requires a cable subscription.”
For the millions of Americans who don’t subscribe to HBO, or who may not even watch shows on a television, this means there is no legal way to watchGame of Thrones. If you only watch TV on your laptop, there’s no way you’re going to pay $50/month for cable and another $15/month for HBO. -Forbes
My favorite response to this idea is by Andy Ihnatko:
The single least-attractive attribute of many of the people who download content illegally is their smug sense of entitlement.
Here’s the terms of use for commercial content: you have to pay for this stuff. This means either you need to wait for it to become commercially available, or if you torrent it today you need to buy it when it gets released. So long as you buy it as soon as it’s possible to do so, I can confidently reach for my “No Harm Done” rubber stamp. Some content is commercially unavailable because the publisher or distributor has no desire to ever release it. I’ll even go so far as to say that downloading it illegally is a positive thing; you’re helping to keep this creative work alive.
If you avoid purchasing the media in some form, however…you’re just one of those people who prefer to steal things if they think they can get away with it. Simple as that. Get off your high horse.
The world does not OWE you Season 1 of “Game Of Thrones” in the form you want it at the moment you want it at the price you want to pay for it. If it’s not available under 100% your terms, you have the free-and-clear option of not having it.
But, I’ll ignore the “I demand HBO’s awesome well crafted expensive to produce content on my terms immediately instead of in a method that makes money for them” argument.
The other aspect of this argument is “See, HBO, look at all these people who want your show? That is money on the table because you won’t give it to them in an easy to access format.” There is of course the idea that they would have to give up lucrative licensing deals and start a whole new consumer services division.
If HBO were to break off and do a stand-alone service they would be giving up those subsidies and would incur huge additional costs in terms of support, billing, and infrastructure that they currently aren’t burdened with. This would make producing the content they produce now – including extremely expensive shows such as Game of Thrones - impossible. At the very least, it would be a huge risk.
Not going to happen. But let’s skip that part too. What I like to focus on is the hypocrisy. Pirates and piracy supporters (sigh) argue that if HBO would just offer this up, then all these people would just start paying HBO for the content. Except, that when its convenient, they make the exact opposite argument. These same proponents argue that Hollywood’s losses are overstated because “not every pirated copy equals a sale.” Not everyone who downloads a song on BitTorrent would have bought that song on iTunes they argue. They are sampling/getting something they wouldn’t actually buy. So, why would this change when it comes to Game of Thrones? No one seems to be able to address this shortcoming. You simply cannot argue both ways.
Readability and Content Theft
John Gruber has brought some attention to Readability and, in his opinion, their sketchy actions regarding how they compensate content creators.
Readability is a service that allows you to save web pages to an app, so that you can view them later in a clean format without ads etc. You can also pay them to automatically deliver updates to these pages to your app automatically. The problem Gruber had with it is that this means if you run a website, you are stripped of any ad revenue from viewers who read the page on your website. Readability claims to pay 70% of any money they get from the subscription service they provide to content owners. But, he contends that they aren’t really making it easy to collect that money, but are benefitting from all the goodwill of claiming to.
I pondered more about this because of a comment made by Gruber on his podcast with Dan Benjamin, The Talk Show. He mentioned that if a magazine company were to collect a bunch of different articles from other sources, take just the content but not the ads and then sell it, those sources would be pissed. More than that, I thought, it would be copyright infringement. Copyright law protects content creators by giving them the right to control distribution of their content. Someone else can’t take an essay I write and republish it for profit. Nothing about changing the media from paper to the web changes that.
The key fact here is that when you get a new article in your Readability app, and you share that or go look at it, you are sent to a copy of that article on Readability’s servers, stripped of the ads, to make it easy to read. So, Readability has made a copy, which they host on their own servers.
The pertinent case on this is Perfect 10 v Google. Perfect 10 is a pornography company (side note: porn has a weird amount of intellectual property precedent establishing cases) that sued Google because Google included thumbnails of their images in Google’s image search service. Google would cache copies of the images on their servers to make search results faster. Google was protected largely because they were able to make a Fair Use defense. Namely that they are providing a service in image search that didn’t take away from Perfect 10′s profits.
I believe Readability would not be able to claim this same defense, since they are directly competing with displaying this content with the original content creators. Further, they are affecting the creator’s profits because the ads aren’t being viewed by readers.
This would be very worrisome, and recently Readability changed their software so that when you share a link it goes to the original content instead of the ad-free Readability version.
However, I was discussing this with a colleague, and he brought up that Readability could probably be protected under the DMCA safe habor provisions since users are the ones directing the service to remove the ads. Whether this is true even with subscription services is up for debate.
Like this:
Don’t Become A Lawyer
State Bars require attorneys to keep up with current developments in the law through classes and presentations. Because attorneys have higher levels of substance abuse and depression, many State Bar organizations try to preemptively educate their members about options for help and tactics for coping.
A quote about attorneys and depression:
“For reasons that we don’t yet fully understand, some individuals who are susceptible to experiencing substance use and mood problems appear to be drawn to the practice of law. The same personality traits that are over-represented in the populations of adults recovering from substance-related disorders and mood disorders—high achievement orientation, perfectionism, obsessive-compulsive—are also common in the legal community. Law School Professor and Psychologist Susan Daicoff explains that the law school experience further exacerbates these tendencies, often producing increased aggression under stress, a preference for competition versus cooperation, and a failure to rely on natural sources of social support from ones peers. These tendencies, combined with the law school experience, produce individuals with a disproportionate preference for “thinking” versus “feeling” and a pessimistic outlook on life. Lawyers are taught to anticipate and prepare for a whole range of problems that non-lawyers are generally blind to—even far-fetched outcomes need to be considered; this trait that helps lawyers be good at their profession may make many miserable when applied to personal life.”
Translation:
People who like arguing often have mood problems and drink too much. Lawyers are trained to be perfect, because their jobs often require it. Perfectionists often have mood problems because it creates a lot of stress to achieve that high level of satisfaction all the time at your job.
It begins in law school, because you are trained that every other lawyer is an opponent, so you can’t work together, only as adversaries. You will be stabbed in the back by a friend if you show any weakness. You will only be successful if you are perfect and ruthless and win. Always. Otherwise all the money you spent on law school tuition was a big waste and you are a failure.
Further, law school trains you to turn off your emotions so you can rationally analyze an issue. Unfortunately this makes you a robot.
Finally, lawyers are used to looking at everything for potential problems so they can advise clients to avoid them. They then look at everything in life this way. Nothing is ever good. We find flaws and obsess on them, sucking the enjoyment of it. You will never have fun talking with us about anything.
Difficulties of Copyright
Admittedly this title is a bit of link bait. Most people will click this post thinking I am going to go on a rant of how stupid and difficult copyright law is. But I’m not.
Instead, I’m going to point to an example of why it is important and necessary and that it is difficult because it is very hard to be an artist and make a decent living by selling your works when we live in the age of the internet and easy copying and distribution.
Louis CK is a fantastic comedian. He was wildly popular as a “comedian’s comedian” for a long time during the early 2000s, but is finally getting some big recognition. Check out his early hour long HBO comedy specials, or his FX show “Louie”.
Many don’t know that he actually directs, shoots and edits “Louie” himself. He has explained how he puts it all together on his own mac which lets him express his creativity and keep his budget low or allow him to use it on other things, like a freaking helicopter in the pilot.
Anyway, he recently decided to put out his latest stand up special out on video using his website as the distribution method. And, he is doing so against lots of strong opinions that he is being dumb. See this disclaimer on his own website:
To those who might wish to “torrent” this video: look, I don’t really get the whole “torrent” thing. I don’t know enough about it to judge either way. But I’d just like you to consider this: I made this video extremely easy to use against well-informed advice. I was told that it would be easier to torrent the way I made it, but I chose to do it this way anyway, because I want it to be easy for people to watch and enjoy this video in any way they want without “corporate” restrictions.
Please bear in mind that I am not a company or a corporation. I’m just some guy. I paid for the production and posting of this video with my own money. I would like to be able to post more material to the fans in this way, which makes it cheaper for the buyer and more pleasant for me. So, please help me keep this being a good idea. I can’t stop you from torrenting; all I can do is politely ask you to pay your five little dollars, enjoy the video, and let other people find it in the same way.
Sincerely,
Louis C.K.
Already he is admitting it is almost futile to fight pirates who are going to steal his material. It is rare to see an artist address it so openly. Normally, they want to appear cool to their audience, so they let the distribution arm take the heat of enforcement.
In order to make a living, an artist needs to sell their work. But in order to do that in a digital world, it takes money and requires technology that restricts easy usage. That makes the product cost more.
Louis CK is in a unique position because no one (other than his kids) rely on the profit from this experiment. If it fails there is little risk of big loss. But, when a big media studio makes a film requiring a director, several writers, actors and technical experts like editors to pull together the risks of putting something out without protections are far too great.
I would also argue that people feel worse when it feels like a more direct stealing of a piece of work. When you illegally download this special you are very aware you are taking money from Louie. When you download the latest studio film from some faceless corporation it is far easier to rationalize that no one is getting hurt.
Edit: A few days later and Louie’s experiment seems to have paid off. He has sold many copies. However, I still argue this is an outlier. Giant media corporations couldn’t pull this off, for exactly the reason I articulate in the last paragraph above. And Louie agrees:
Fascinating, wide-ranging group interview with Louis C.K. On piracy and bootlegging:
To steal from someone and not feel bad, you either have to be a sociopath or view the act differently. One way is to remove “Someone” from the equation. You’re not stealing from a person. Big companies do a lot to help people view them as less than human. I heard a speech by Noam Chomsky who said that corporations are like super humans. They cannot be hurt like a human can and they never die. They are not susceptible to scrutiny or accountability. This makes them more profitable. If companies want to enjoy these benefits to some degree they have to live with what else comes with being not human. You miss out on compassion, forgiveness, camaraderie, empathy, trust all kinds of shit.
Copyright Transfer Terminations
Everyone who is even slightly into music is aware that the record industry has a reputation for really being tough on artists. This has changed in recent years, but only because artists have other options for distribution. However, an obscure section of US copyright law is causing waves, and might turn the tables in the relationship between artists and their labels.
Until very recently, record labels often forced very tough contracts on their artists. If they didn’t agree, fine you didn’t get your music out. Part of these contracts was an agreement that the artists would grant the copyright of their recording to the record label. Not just the right to distribute or promotion, but the entire right to the song. They did this in exchange for the right to use the studio, get an advance award of money, etc. The record label would spend a lot of money on the artist to record and promote, so they wanted the profit off of the song. Of course, these contracts were permanent. It wasn’t “you get the right to the song for 10 years”, it was for as long as copyright protects the song. This all meant the record labels were profiting from licensing the song in films, or for other public performances without having to compensate artists.
However, Section 203 of the Copyright Act might change that. Basically, copyright law allows for any permanent transfers of copyright to be cancelled by the artist after 35 years of the transfer has passed. There are some limitations, such as the artist has 5 years to file the claim to re-acquire, and they have to give 2 years notice. Most important though, is the qualifier that this right can’t be sold away in a contract. This means the record labels can’t claim their all-encompassing contracts probably doesn’t include the right of termination.
There is one more limitation that the record labels are grasping on to. “Works made for hire” don’t qualify. Works for hire would be songs made by an “employee”. The question of course, is whether these musicians are employees. The labels are going to argue that they gave the artists money and instructed them to record. The artists will counter that they were just given studio time and decided to assign their songs to the labels. It will be up to the courts to decide.
Does this affect you personally? Unless you recorded music in the 70s, probably not. However, record labels are already hurting. The industry would really be shaken up if they stop collecting royalties on old songs that get played. It will be interesting to see how this plays out.
PROTECT IP Act
The new version of COICA was unveiled today. This is a big overhaul of IP protections in the United States. A lot of analysis will come out in the next few days, but if you want to see the bill yourself you can read the announcement and summary here. If you want to read the actual text of the bill you can also see that here.
Some of the key protections:
The PROTECT IP Act will provide law enforcement with important tools to stop websites dedicated to online piracy and the sale of counterfeit goods, which range from new movie and music releases, to pharmaceuticals and consumer products. Key updates to the PROTECT IP Act include:
- A narrower definition of an Internet site “dedicated to infringing activities”;
- Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;
- Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is “dedicated to infringing activities,” but with remedies limited to eliminating the financial viability of the site, not blocking access;
- Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site “dedicated to infringing activities” before bringing an action against the domain name itself;
- Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site “dedicated to infringing activities,” where that site also “endangers the public health,” by offering controlled or non-controlled prescription medication.
Apple v Samsung
Apple is suing Samsung for various IP infringements. Basically they say Samsung’s android phones are too similar to the iPhone. Similar enough to look like they are probably confusing consumers.
If you want to read a great breakdown of the suit, Nilay Patel has a pretty thorough overview at This Is My Next.
Email Disclaimers Probably Pointless
I’m sure you’ve gotten one of those emails where the actual body of the email is maybe a two word response, e.g., “go ahead” but following the signature is a short novel of a disclaimer.
Most companies encourage their employees to add these signatures to the end of emails. The Economist published an opinion article that all of these wasted pixels are just that- a waste. They point out that there is no legal basis for mandating the use of the disclaimers.
They are mostly, legally speaking, pointless. Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic e-mail footer in America, the most litigious of rich countries.
Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable. And a footer stating that nothing in the e-mail should be used to break the law would be of no protection to a lawyer or financial adviser sending a message that did suggest something illegal.
I wonder how many billable hours attorneys have billed to create these useless paragraphs for companies? I also would point out that just because there has been no court case that indicates the importance of the disclaimer doesn’t mean they aren’t important.
