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Musician Wonders What It Would Take To Become An Open Source Musician

Mike Masnick — Wed, 16 May 2012 12:42:00 PDT

Kevin H alerts us to the news that electronic music/DJ artist The Polish Ambassador recently began musing on Facebook about what it would mean to be an "open source" musician:

According to Wikipedia, "Open Source" is a philosophy that promotes free redistribution and access to a project's design and implementation details. The end user who edits the program is then allowed to send his/her input to the author for possible inclusion in the project.

If an artist like The Polish Ambassador were to become an open sourced project what might that look like? Is there room/possibility for art/music/brands to become open source? Is it already happening? Could this ideology serve some purpose? Maybe a way to get other people's ideas out there? A way to collaborate? A way to merge efforts of like minded folks? A way to create art from art? A way to generate $ for end users/charities? It seems to me the possibilities are endless. We all use open sourced software every day. Linux, Firefox, etc, but I haven't heard of many artists that when I think of their name, I also think, "O yea, she/he's that open source artist." Maybe there's a reason for this, maybe not. With Twitter/Facebook and the web in general, technologically speaking, we have never been more connected. Would love to hear your thoughts and ideas. Could "open source artists" be an evolutionary step for art?

Of course, many folks in the "free culture" world would point to Creative Commons as the artistic equivalent of an open source offering. However, two interesting things strike me. First, as of the time I'm writing this post, no one in the dozens of comments posted to that story mentions CC at all. Second, the request actually goes a bit further than CC. It's not just about making the works free to distribute or use... but the second part: sending it back to the original creator for possible inclusion in the project. Now, again, we have seen some examples of this with various remix projects. In particular, I'm reminded of the experiment by K-OS, where rather than having fans remix an album, he pre-released all the stems, and let fans create their own original mixes, and then took the best for each song and released a combo album: one of his own mixes, and a second of the best fan mixes. In the hip-hop world, releasing instrumentals or acapellas for fans and other artists to remix (and building contests or other promotions around that) is fairly common—but only a few artists have gone further and offered up the individual bits and pieces. Perhaps that's along the lines of what The Polish Ambassador is looking for.

Either way, this has me wondering if there isn't something Creative Commons could include in their offerings, or if if this goes beyond that. It is an interesting point however. One of the thrills people get in working on open source software isn't the fact that they can do what they want with it, but that they can collaborate to make the project better. Open source developers feel well-earned pride when a contribution gets included in a larger project. Imagine the same situation with musicians. What if your favorite band released your remix of their song? That is, what if they effectively worked with you and said your version was one they really liked -- such that you got the official stamp of approval that had the work more widely distributed? Again, it appears that some artists are doing this on the margins, but it seems like the kind of thing that could be more clearly formalized and promoted as a cool way for artists to connect with fans and for fans to gain some form of validation for their own help with certain projects.

Oh, and in the meantime, it appears that The Polish Ambassador is currently offering up its entire discography for free -- 7 hours worth of music, all in FLAC format.

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Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Age

Mike Masnick — Wed, 16 May 2012 11:28:00 PDT

For many years I've been pointing out the basics of economics concerning concepts like "free" and the importance of marginal cost to pricing in an efficient market. After one such recent post, I got an angry email from a college professor who has worked in the entertainment industry for many years, telling me that clearly I had never taken an economics class. That, of course, is not true. I took a great many economics classes, and learned the economics I talk about here on the site from some of the best economists around. Either way, I do wonder what this same individual would say upon reading well known (and greatly respected) economist Dean Baker's latest column about how The Pirate Party has got it right on copyright:

Near the top of the list of the Pirate Party's demons is copyright protection, and rightly so. Copyright protection is an antiquated relic of the late Middle Ages that has no place in the digital era. It is debatable whether such government-granted monopolies were ever the best way to finance the production of creative and artistic work, but now that the internet will allow this material to be instantly transferred at zero cost anywhere in the world, copyrights are clearly a counter-productive restraint on technology.

As every graduate of an introductory economics class knows, the market works best when items sell at their marginal cost. That means we maximize efficiency when recorded music, movies, video games and software are available to users at zero cost. The fees that the government allows copyright holders to impose create economic distortions in the same way that tariffs on imported cars or clothes lead to economic distortions.

The major difference is that the distortions from copyright protection are much larger. While tariffs on cars or clothes would rarely exceed 20-30 per cent, the additional cost imposed by copyright protection is the price of the product. Movies that would be free in a world without copyright protection can cost $20-$30. The same is true of video games, and the price of copyrighted software can run into the thousands of dollars.

Baker goes on to suggest some alternative means to fund such creative works in a world without copyright, including ideas like "artistic freedom vouchers" that would give people a refundable tax credit on supporting creativity, on the condition that any of the creativity funded by such money would not be able to protect it with copyright for a period of time. I find such program interesting, though I do wonder if they'd even be necessary. As we've been seeing over and over again, all sorts of interesting new business models are springing up that have nothing to do with copyright. As there is demand for creativity, I fully expect more and more such models to continue to show up as well. What I fear is that the focus by those who benefit excessively from the monopoly rents and protectionism of copyright, will lead to cutting off innovation or killing off interesting and more efficient business models, before they have a chance to evolve.

Contrary to what some like to say about me, I am not convinced that copyright should be done away with completely. I do think that it needs significant reform. I just want that reform to be based on actual evidence and understanding of basic economics rather than faith and the demands of those who have benefited excessively from it, over those who have been held back because of it.

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Feds Tie Themselves In Legal Knots Arguing For Domain Forfeiture In Rojadirecta Case

Mike Masnick — Wed, 16 May 2012 10:22:00 PDT

If you don't recall, among the various domains that ICE and the DOJ seized last year were two domains -- rojadirecta.com and rojadirecta.org -- held by a Spanish company, Puerto 80. After extended negotiations to try to get the government to return the domain names, Puerto 80 finally sued the government to get them back. Almost immediately after, the government filed to forfeit the domains (seizing property is supposed to be a temporary thing -- if the owner wants it back, the government has to file for forfeiture to keep it permanently). Thus there are two semi-parallel issues going on here. Either way, the judge rejected the request to return the domains prior to the trial, and while the appeal on that process is ongoing, back in the district court, the fight over forfeiture has continued.

Last December (actually the same day that the government was handing back the Dajaz1 domain in a similar dispute), the lower court dismissed the forfeiture claim -- saying that the government failed to plead willful copyright infringement, which is necessary to show criminal copyright infringement. However, it allowed the government to refile, which it did. The two sides have filed their latest motions in the case, and once again, it appears that they're talking about two totally different things. In fact, reading through the government's filing, it appears that they either have no understanding of the law itself, or have twisted themselves into such a tight knot, that they're not sure how to get out of it.

The details are a bit tedious, but let's see if we can break it out. First off, the seizure and forfeiture are "in rem" -- meaning that the case is against the domains themselves, and not the owners of the domains. That can be an awkward distinction, obviously, but the government makes it much, much more awkward in that it seems to shift its argument back and forth constantly. For example, it repeatedly (in a rather mocking tone) rejects the arguments of Puerto 80 by noting that no one is accusing Puerto 80 of anything. The case is merely about how the Rojadirecta domains "facilitate" criminal copyright infringement. So the government argues that the court should ignore the (rather compelling) defenses for why Puerto 80 did not violate criminal copyright law.

Now, that part is fine... but where it gets weird is that the government immediately then tries to use Puerto 80s actions as proof of facilitating infringement. If you're playing along with the home game, the government is arguing both that Puerto 80s actions are meaningless to the case and that Puerto 80's actions are the key to facilitating criminal copyright infringement. Basically, whenever Puerto 80 points out that its actions do not meet the standard of criminal copyright infringement, the government waves its hands and says "doesn't matter, we're not charging you, just the URL." But then to prove that the URL "facilitated" the actions, it cites Puerto 80's actions, rather than the URL's actions. That's because the URL doesn't act. It's just a URL. See the following as an example:

Additionally, there can be no serious argument that the Government has alleged that the Rojadirecta Domain Names' facilitation of the underlying copyright offense was anything but substantial. See Amended Complaint... ("At all relevant times, the links displayed on the main homepage of the Rojadirecta Website were purposefully aggregated and organized by the owner(s) and/or operator(s) of the Rojadirecta Website. Moreover, more than half of the material available on the Rojadirecta Website at any given time during law enforcement's investigation appeared to be dedicated to making infringing content available to users of the Rojadirecta Website.")....

Puerto 80's arguments about its own conduct are irrelevant and misapprehend the nature of the inquiry

See that? First it's "here's all the evidence of things done by Puerto 80"... and then immediately, "Puerto 80's actions are irrelevant".

At times this reaches absolutely absurd levels, such as the part of the government's filing in which they assert that the domain itself had knowledge of infringement. The feds can't say Puerto 80 had knowledge, since (again) they admit that Puerto 80 is not being charged. So they switch and anthropomorphize the domain itself:

Indeed, the Rojadirecta Domain Names were repeatedly noticed that they were linking to copyright infringing content.

You see? It's not Puerto 80 who was noticed, but the domain name itself. It must have "known." Or something.

The government's argument gets even worse from there, because nowhere does it show where the criminal copyright infringement happened. In order for the government to claim that the Rojadirecta domains facilitated criminal copyright infringement, you would think the first step would have to be to show where it actually happened. Here, the government basically waves its hand and says, "of course it happened." First, it highlights the fact that because of links on the Rojadirecta sites, content could be streamed from third party sites. In fact, it straight out admits that Rojadirecta hosted no infringing content, but rather it was all on these other sites. It then notes that such streams likely violated the performance and reproductions rights under the Copyright Act. That may be true, but that, alone, does not make it a criminal offense. That requires willfulness -- which was the problem in the original filing.

But, here again, the feds run into a serious problem: how can they show willfulness on the part of the infringer when they never identify an infringer? The entire filing insists that the domains should be forfeited because they were used to facilitate a crime, but they never show that any crime was actually committed, because they never even attempt to identify who committed the crime. They admit that it's not Puerto 80 (even as they try to use Puerto 80's actions). It likely isn't the users of Rojadirecta (and the government doesn't even try to make that claim). Instead, it seems to hint at an imaginary party who willfully infringed, but is never actually identified! It's really amazing.

The implications here are staggering. Basically, the feds are arguing that they can seize and then forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process -- but they never have to actually prove anyone violated the specific law. In other words, if the government wanted to, under this definition, it could easily seize and forfeit any search engine domain or any website that allows public comments, merely by asserting that a link in a search result or a link in a comment led to infringing material. That's an insane interpretation of the law -- yet it appears to be the one that the feds are asserting.

One hopes that the judge actually understands the absolutely insanity of the feds' argument here. Puerto 80's lawyers lay it out nicely (pdf) in their response, but courts can be funny sometimes -- especially in copyright cases. Still, the argument made by Puerto 80's lawyers lay out just how ridiculous this interpretation would be:

Under the government’s construction of [the law], every domain name that pointed to a website containing links to infringing copies would “facilitate” and have a “substantial connection” to the offense of criminal copyright infringement, and would therefore be subject to forfeiture. The broad construction of the term “facilitation” the government seeks would give it the power to shut down google.com, yahoo.com, bing.com, or any of an array of other channels of communication that—like every site on the Internet—link to content provided by third parties that might or might not be infringing. The property in question is two domain names, which (in the government’s words) are merely “labels” that “resolve” to websites, and are distinct from the servers that host the website or any content of it....

The government’s theory would have allowed it to seize the New York Times issue that published the Pentagon Papers and destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of national security laws. And the Times would have had no opportunity to show that its speech was lawful. There is no reason to think Congress intended the forfeiture statute to extend so broadly. And even if it had, Congress lacks the power to confer such plenary control over speech on government agents acting without judicial sanction.

Of course, all of this doesn't even touch on two other important issues in the case. One is the First Amendment questions raised by seizing a domain and the second is the fact that US copyright law only matters in the US, not in Spain. In both cases, the government again comes back with wacky responses. On the First Amendment claim, it argues there's no First Amendment issue, relying incorrectly on the Arcara vs. Cloud Books case. But that ruling is clear that it only applies if the crime in question is not expressive. But copyright infringement is often absolutely expressive. It may not be protected expression but it is expression, and as such it requires First Amendment scrutiny to make that determination. The government flat out claims that copyright infringement (which it falsely calls "intellectual property theft") is "unrelated to speech." That's simply incorrect. Courts have long established that there is a balance between copyright and the First Amendment, and you can only establish infringement following a ruling by a court. Yet here the government wants to skip over that step entirely. As Puerto80 notes:

The government argues that the links on the Rojadirecta website are not protected speech because they constitute copyright infringement. But that argument exactly misses the point of the prior restraint doctrine. Unless and until there has been a final determination on the merits after an adversary hearing, there is no basis to find that criminal copyright infringement occurred on the third party sites to which the Rojadirecta website linked.

As for US law being applied outside the US, here the government just tries to wave this issue off again. It first admits that US law does not apply outside its borders, but then insists that it is "inconceivable" that some infringement didn't happen inside the US. But that's not how the law works. You have to actually show the infringement. You can't just insist that it happened somewhere in the US and move on...

The further this case goes, the worse and worse the government's arguments seem to get, and the less and less it seems to understand about the hole it has dug for itself.

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Church Sues Former Members For Posting A Negative Review Online

Mike Masnick — Wed, 16 May 2012 09:25:00 PDT

Nastybutler77 was the first of a few people to send over this story of a church pastor, Charles O'Neal, of the Beaverton Grace Bible Church in Oregon, suing a former church member, Julie Anne Smith, and her family, for posting a negative review of the church online. O'Neal claims that the review was defamation, and apparently responded to Smith's review on Google with a post about how Smith was lying and how he was planning to sue.

Some of the specifics argued in the lawsuit do seem to quite critical of the church, but it's not clear they rise to the level of defamation:
The original report also claims that part of the lawsuit claims that using the word "creepy" is defamatory. While the factual statements might be defamatory, opinion statements such as calling a place creepy are clearly not.

For what it's worth, Oregon appears to have a reasonably strong anti-SLAPP law, and I wonder if Smith will make use of that. It will depend on the details of her statements to see if they were truly defamatory, but the general descriptions provided certainly make it appear like a vindictive lawsuit to silence a vocal critic.

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Postal Service Could Be On The Hook For Millions For Daring To Memorialize The Korean War Memorial

Mike Masnick — Wed, 16 May 2012 08:14:00 PDT

A few years back, we wrote about how a sculptor who had been contracted by the US government to create the Korean War Memorial in Washington DC was suing the US Postal Service because it had released a stamp using a photograph of the Memorial. There were all sorts of issues with this, starting with the fact that the US government should never commission a monument in which it does not also get the copyright. Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a single ~~photographer~~ artist has control over it? Why would the government allow this? The second problem was that this seemed like a classic case of fair use. The photo was clearly transformative from the original work, where most of the power of the photo is in other elements beyond the statue (the snow, the lighting, etc.). Unfortunately, however, the appeals court for the federal circuit (CAFC) made one of its all too typical bizarre rulings and decided that the photo was infringing. As we noted at the time, it rejected the transformative nature of the photo by claiming those were "nature's choices," which would effectively eliminate all nature photography from being covered by copyright.

That said, the case has continued, as the follow up fight was about how much the sculptor, Frank Gaylord, should get. The district court looked at typical licensing deals from the US Postal Service and realized they usually pay a couple thousand dollars. The highest amount it could find was $5,000, so they awarded him that. Gaylord appealed, asking for 10% of all revenue from the stamp, which he estimated would be around $3 million on the $30.2 million in revenue made already. That's a pretty big difference. CAFC has once again sided with him saying that the lower court was wrong to just award him $5,000, without taking into consideration how much Gaylord might have wanted to license the work for in the first place. The lower court will now have to reconsider, and the US taxpayer may have to pay this guy a ton of money yet again.

So, can we convince the federal government of a rather simple idea going forward: if you have someone create a memorial or statue or piece of artwork for public display, part of the deal is they put the whole thing into the public domain. If they don't like it, find another artist. The fact that this work is not in the public domain is a travesty. The fact that the photo is not considered fair use on the sculpture in the first place is a travesty. The fact that he may end up getting another batch of money for this is a travesty. And all of it could have been avoided if someone (anyone) in the US government realized ahead of time that artwork created for public display should belong to the public.

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Pirate Bay Founder Takes Fight To EU, Argues Swedish Censorship Violates Human Rights

Mike Masnick — Wed, 16 May 2012 07:07:00 PDT

While The Pirate Bay has lost all of its appeals in Sweden, one of the founders, Fredrik Neij, is apparently going to take his case to the European Courts, arguing that shutting down a site like The Pirate Bay is a violation of Article 10 of the European Convention on Human Rights. As Neij's lawyers point out, since TPB does not host or transmit any material covered by copyright, shutting it down (or fining and jailing Neij based on its usage) rejects his rights "to receive and impart information."

While I understand where he's coming from, I do worry that courts to date have been particularly bad at comprehending the fact that The Pirate Bay neither hosts nor transmits any unauthorized information. While they are seeking to make analogies, the courts seem to zero in on the way many people use the tool, rather than separating the tool from the usage.

The lawyer also notes that since the torrent file information itself wasn’t illegal, the function should be covered by Article 10. He adds that he will also ask for further scrutiny as to whether it was indeed correct to hold Fredrik Neij responsible for what other people did when they used The Pirate Bay.

“In our opinion, it is like being held guilty in court because someone delivered a letter with illegal content. Another, and perhaps even more relevant analogy, would be if the founders of a buying and selling site were found guilty after someone sold a stolen bicycle after it was advertised on the site,” Nilsson explains.

Basically, it sounds like they're going with a typical secondary liability protection argument, which makes sense in theory. Once again, however, the courts have been pretty resistant to recognizing such an argument, especially when so much of the usage is for infringing purposes and (especially) when the operators of the site were quick to mock those who challenged how much of the usage was infringing. The courts just don't have very much sympathy there. Thus, I'm not confident this will turn out all that well -- and I actually worry that the end result may be a precedent that cuts of secondary liability protections for other sites as well.

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Wil Wheaton Reminds Us That Torrents Are Awesome, And Not Just For Pirated Movies

Leigh Beadon — Wed, 16 May 2012 05:06:00 PDT

The conflation of tools and technologies with the ways people use them is a big problem in the copyright debate. One of the many, many examples is the way the anti-piracy crowd treats "torrent" as a dirty word. Google endorsed this last year when they started dropping it from their search autocomplete results, and as Mike pointed out at the time, just imagine they had done the same with "mp3" a few years ago when that was supposedly synonymous with piracy. Defenders of this kind of filtering don't take such a forward-thinking stance, and their typical response in the torrent debate is to assert that the majority of BitTorrent traffic is likely infringing. Of course, that's not really the point: you don't look at the ratio of infringing use to legal use, but rather at the legal use by itself—if it's substantial and meaningful, then you have to go after the infringing users, not the technology as a whole.

Torrents have many legitimate uses. BitTorrent is simply a good protocol for sharing large files with large groups—they are perfect for films, video games, music and of course software. Linux distros are a commonly cited example, since they are always available by (perfectly legal) torrent, but this is often brushed off as if it's an excuse and torrents are not really necessary for this. Geek icon Wil Wheaton puts a bullet in this notion with a recent post on his blog, clearly demonstrating why he turned to BitTorrent for a copy of Ubuntu:

One of the things that drives me crazy is the belief in Hollywood that bittorrent exists solely for stealing things. Efforts to explain that this is not necessarily true are often met with hands clamped tightly over ears, accompanied by "I CAN'T HEAR YOU LA LA LA."

As an example of the usefulness of bittorrent for entirely legal purposes, I present the following comparitive images:

In case you can't see, the torrent is going about six times faster than a direct download, needing less than 10 minutes as compared to nearly 45. It's a simple example, but an effective one: P2P sharing is simply better sometimes. Google prides itself of directing people to the best possible information, but when their users start searching for the latest version of Ubuntu or the new Counting Crows album, they won't see autocomplete suggestions for this perfectly legal (and potentially superior) means of obtaining what they want. Seems like that runs directly counter to Google's mission. It may only be a minor annoyance, but it's also pointless, and it will only get worse as more and more people embrace torrents for legitimate distribution.

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Tenenbaum To Supreme Court: Let's Get This Constitutional Debate On Statutory Rates For Copyright Infringement Rolling

Mike Masnick — Wed, 16 May 2012 03:09:00 PDT

You may recall that, in the case of Joel Tenenbaum -- who is in a legal battle with some major lbels for file sharing -- a jury awarded the labels $675,000 for the sharing of just a few songs. The judge, Nancy Gertner, pointed out that this seemed unconstitutionally excessive and reduced the award to $67,500 -- knocking 90% off the jury's award. The appeals court in the case reinstated the original $675,000 on procedural grounds. It said that Judge Gertner jumped the gun in leaping to the constitutional question, rather than using remittitur, as had been done in the Jammie Thomas case. Remittitur would allow the RIAA to have the case happen all over again with a new jury. In the Jammie Thomas case there have already been three trials.

Tenenbaum, led by famed lawyer/law professor Charles Nesson, challenged the appeals court on all of this, but had that quickly rejected. As we noted at the time, Nesson seemed to (as he's done in the past) argue points unrelated to the specific legal questions at issue. This seemed like a bad way to go about things in a court of law, even if it may help in the court of public opinion.

The latest is that Tenenbaum/Nesson have filed to raise the issue with the Supreme Court. At least the argument here is a bit more focused on the requirement for remittitur, with Tenenbaum's team arguing that the statutory damages for non-commercial use is clearly a major Constitutional issue, and by forcing it through the remittitur process, all the courts are doing is pressuring people like Tenenbaum to settle, rather than ever allowing it to be judged on constitutionality. And that has consequences -- namely in enabling copyright trolls to shake people down, without ever allowing them to challenge the constitutionality of massive statutory damages.

I actually think this is a much more persuasive argument than I've seen from Team Tenenbaum in the past, but it seems unlikely that the Supreme Court will actually take the case on. I hope I'm wrong (and then, if I am wrong on that, I hope I'm wrong in my guess as to how it will come out, because this version of the Supreme Court doesn't appear to understand the issues around copyright law). Either way, we should find out soon enough.

I do think it's interesting that Nesson is using the copyright troll issue as part of the argument. Eventually, this or an issue like it will get to the Supreme Court, and hopefully the Justices realize just how damaging such practices can be:

They use the asymmetric cost of litigation to make defense by the individual economically irrational.

This Court should do everything it can to remedy this misuse of process. Its effects are not ended because the RIAA has ceased suing individuals. Others are using the legal structure and litigation tactics they have put in place.4 The weight of federal litigation is not a tool appropriately used to suppress legal challenge. The absence of cases pending in the federal courts highlights the problem: a deeply misshapen judicial architecture has been set in place. Without review, it is unfixable. The suppression of ability to challenge a process that is repeatedly producing appalling results, not circuit splits, is exactly why this case is worthy of this Court's present attention.

It's an interesting argument to get around the lack of a circuit split (conflicting rulings in different circuits, which is one of the key reasons why the Supreme Court agrees to hear certain cases). However, I just don't think the Court will think it's a big enough deal to jump on it, perhaps figuring that it can bounce back up eventually. Of course, that only underlines the point: for that to happen, it means years more of Tenenbaum's time wasted with this case. That seems unfortunate.

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The Sky Continues To Rise: EU Gross Box Office Returns And EU Film Production Both Hit Record Highs In 2011

Glyn Moody — Wed, 16 May 2012 00:38:00 PDT

Even though just about every objective statistic suggests otherwise, the copyright industries still take turns bemoaning the terrible toll that piracy is supposedly taking on their markets. So it's good to come across some official figures that suggest the contrary, particularly because in this case they come from the European Audiovisual Observatory—not a market research company, but a public service body. Here are the latest numbers for the European film industry:

2011 was a year of stabilisation at the European box office as the marked upward trend of GBO [gross box office] of the past two years slowed down significantly, resulting nevertheless in an overall year-on-year increase. Based on provisional data the European Audiovisual Observatory estimates that EU gross box office returns increased marginally by 0.7% from EUR 6.37 billion [$8.14 billion] to EUR 6.4 billion [$8.18 billion], still the highest level on record. Cinema attendance remained stable with an estimated 962 million tickets sold.

Note that this is no mere one-off -- the report speaks of a "marked upward trend" of the previous two years that has slowed down significantly, but is still there, leading to what it terms "the highest level on record". That's about box office sales, but maybe the European film industry itself is suffering under the onslaught of popular US movies? It seems not: 2011 saw European films claiming back market share which they had lost to US 3D blockbusters in 2009 and 2010. Based on provisional figures, estimated market share for European films in the EU climbed from 25.2% to 28.5% in 2011, back to the ‘pre-3D’ levels of 2007 and 2008. Market share for US films on the other hand fell from 68.5% to an estimated 61.4%. This would be lowest level since 2001.
The best result for a decade, then. Now, that's all very well, but might still be the result of a few anomalous European blockbusters that have distorted the figures. According to the European Audiovisual Observatory, that's not the case: EU production levels continued to grow to 1,285 feature films in 2011, 59 films more than in 2010 and a new record high.
In other words, in 2011, Europe note only saw record box office receipts at cinemas, but also record indigenous film production. It's a little hard to see how anyone could try to spin that as another "piracy is destroying the European film industry, we must bring in tougher copyright infringement laws" story, but I'm sure the usual suspects will try their darnedest.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Thank Twitter For Standing Up For User Rights

Mike Masnick — Tue, 15 May 2012 20:42:00 PDT

We recently wrote about Twitter's decision to stand up for a user in court, fighting against a court ruling that said that a user has no proprietary interest in their own tweets and info, such that those users cannot contest a government attempt to subpoena information from Twitter. This is not the first time that Twitter has aggressively stood up for its users' rights against government excess -- in a world where that's quite rare. When the government comes calling, most companies roll right over. In response to this, the folks over at Fight for the Future have put together a petition page, asking people to sign up to thank Twitter. If they get 50,000 people to sign, they'll present Twitter with a medal for defending the internet (these medals are awesome).

Given that internet petitions are often done in protest of something or against something, I really like this idea of effectively getting people to sign on for something positive and celebrate a company that does its best to protect the interests of its users. If you agree, head on over and sign up to thank Twitter.

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DailyDirt: What Do You Remember?

Michael Ho — Tue, 15 May 2012 17:00:00 PDT

Everybody at one time or another wishes they had a better memory. There are some techniques and memory exercises to help improve the way people memorize lists, but some things are just more memorable than others. Some research is starting to delve into why we remember some things but not others, and here are just a few interesting links that you might want to write down.

An analysis of IMDB's memorable movie quotes could help figure out what makes well-written dialogue so catchy. Not surprisingly, the most popular catchphrases have unusual combinations of words and often express some pearls of wisdom. "Do. Or Do not. There is no try." [url]
USA Memory Champ Ron White shows off how he memorizes the order of a deck of shuffled playing cards -- creating a unique sentence for each card that helps him remember how every card relates to its neighbors. He uses a spatial memory technique called method of loci, but it probably doesn't work for everyone (especially people who get lost a lot). [url]
Children remember more than adults think they do, but nobody remembers their second birthday party. A study on the memories of Disney World revealed that 3 year old kids remembered a lot about the happiest place on Earth (even 18 months after visiting). [url]
To discover more interesting articles on the human mind, check out what's currently floating around the StumbleUpon universe. [url]

By the way, StumbleUpon can recommend some good Techdirt articles, too.

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Darrell Issa Puts Old Leaked TPP IP Text Up For Discussion

Mike Masnick — Tue, 15 May 2012 15:59:00 PDT

We've written a few times now about Rep. Darrell Issa, and the Madison platform his office has set up to allow for crowdsourcing opinion on legislation and other government documents. He originally used it for his OPEN Act, but then later posted the text of ACTA as well. His latest move is to post the leaked text of the US's negotiating position on TPP. This is the same text that leaked out last year. It would be nice if the USTR did something like this itself with the latest text, but that's not how USTR Ron Kirk works. To him "transparency" is only sharing the text with big industry special interests, and declaring it a matter of "national security" if anyone else wants to see it.

Issa recognizes how this is dangerous to a functioning democracy, when our federal government is negotiating deals in back rooms, despite the fact they will have a massive impact on the public:

“At a time when the American people and Internet users all around the world are rightfully wary of any closed-door negotiations that could adversely impact their ability to freely and openly access the Internet, the Obama Administration continues to pursue a secretive, closed-door negotiating process for the Trans Pacific Partnership,” Issa said. “I have decided to publish the intellectual property rights chapter of TPP in Madison so that the public can provide input to those negotiating this agreement, and to push this Administration - and the federal government as a whole - to be open, transparent and inclusive when it comes to international intellectual property rights agreements that have potentially serious consequences for the Internet community.”

Again, it's great that he's added this text to the Madison platform, but it's disappointing that it's still the old leaked version, rather than anything more up to date. The version he posted is now 15 months old, and there have been a bunch of additional negotiations since then. Still, it's good to see others in the federal government trying to encourage discussion on this agreement, even if the USTR continues to hide in secrecy (unless you're a big corporate lobbyist, of course).

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In Which I Debate A Media Mogul Who Insists It's Crazy To Give Content Away For Free

Mike Masnick — Tue, 15 May 2012 14:53:00 PDT

Last week, I went on PBS Mediashift's podcast to debate media mogul Steven Brill about the power of paywalls. Brill runs Press+, one of the first companies that built a business around setting up paywalls for publications. They focus on NYT/FT-like "metered" paywalls, where you get some content for free, but if you hit a certain number of pages, you're locked out unless you pay. Brill, whose company had to sell out to a much larger player recently (suggesting it's not as successful as he makes it out to be), insists during the episode that there is no way to make money giving away journalism content for free, and insists that advertising is no way to make money. You can hear our debate starting at around 18:45 on the podcast:
There was a lot more that could have been said if we'd had the time, but I found a number of his arguments bizarre. The internet represents a huge opportunity to grow and expand a business -- yet he's celebrating the fact that the sites who agree to put up the giant padlock he's selling are "only" losing a little bit of their traffic? This is the time to be investing in and growing traffic, because as soon as free competitors come along, and people realize they don't need to pay any more, what will these sites have left? They'll have less traffic, less advertising and less subscription revenue. That's no way to invest in the future.

Separately, there was a nonsensical story about a journalism student who might get hired for a publication, but if that publication gives away its content for free, she can't pay her rent any more. I have no time for arguments like that. If she got hired, she has a salary. If a publication is giving away content for free that doesn't mean it makes no money or has no business model. Arguments like that suggest someone who has no real argument.

I am sure that the publications -- mostly regional newspapers -- that are using Press + are successful in slowing the rate of churn. Some paper subscribers probably agree to do a bundled package for the time being, getting paper and digital access. But it's not a long term solution. Perhaps for people of Brill's generation, it makes sense, but I don't know many people under 40 who subscribe to a local newspaper any more. There's more and more info available for free online. And there are growing opportunities to provide more such info.

Advertising is a tough way to make a living, but no one says it's the only way to make money online. There are lots of creative ways to make money online that don't involve pissing off your userbase and limiting what they can do. When you do that, you make the content that much less valuable, and that's no way to run a business.

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Dutch Judge's Anti-Piracy Activities Draw Accusations Of Corruption In Pirate Bay Censorship

Mike Masnick — Tue, 15 May 2012 13:55:00 PDT

We were a bit surprised last week to hear that a court in the Netherlands had ruled that the Dutch Pirate Party had to censor itself, when it came to explaining to people how to use proxies to get around The Pirate Bay block. At some point such censorship needs to be seen as a fundamental violation of human rights. If you are going to block a website, that's one thing. But blocking a political party from demonstrating the ridiculousness of such a block by ordering them not to talk about it? You're just asking for trouble.

However, we should have remembered that we've seen this kind of thing in the past in the Netherlands. A couple years ago, a court blocked the usenet community site FTD. FTD did not host any infringing content. It did not offer torrents of any infringing content. It was simply a community offering that some people used to post information on where you could find infringement. And for that, it was blocked. And yet... some people noticed at the time that the judge in that case taught "anti-piracy" classes, where the person running the events was the lawyer representing the entertainment industry in that same case.

Guess what? Turns out the judge in this case was that exact same judge, leading Pirate Party founder Rick Falkvinge to accuse him of beiing "not only corrupt, but textbook corrupt." Don't they have conflict of interest rules in the Netherlands?

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TV Network Execs Contemplate Going To Court To Say Skipping Commercials Is Illegal

Mike Masnick — Tue, 15 May 2012 12:56:00 PDT

Late last week Charlie Ergen and the folks at Dish Networks presented the TV networks with a bit of a conundrum. You see, the company decided to actually give consumers what they want: setting up a special DVR system, called Auto Hop, that would let viewers not just automatically DVR the entire primetime lineup of all the major networks with the single push of a button -- but also to automatically skip commercials when watching the playback, as long as it wasn't the same day the shows aired. This is something that consumers clearly want -- which Dish execs were pretty upfront about:

“Viewers love to skip commercials,” Vivek Khemka, vice president of DISH Product Management, said in a statement

But, of course, who is a consumer in this market gets complicated pretty fast. The TV networks, of course, make a fair bit of money from advertising on these shows, and they're not happy about any idea that means people might skip commercials. Those of you who have been around for a bit may recall a few relevant stories. First, there was Jamie Kellner, the former chair of Turner Broadcast Systems, who once claimed that walking away from your TV while commercials aired was a form of theft. Then, of course, there was the famous ReplayTV case. If you don't recall, ReplayTV was an early competitor to TiVo, and in many regards a better product. Among its features, it took an already considered legal feature from VCRs called "commercial skip" and added it to DVRs. The industry sued, in large part because of this feature, which they considered to be breaking the law.

Of course, the expense of the lawsuit resulted in Replay's parent company SonicBlue declaring bankruptcy. It then sold off the remains to D&M, who tried relaunching a version of the product without all the cool features people liked, and it went nowhere. Eventually, DirecTV bought the remnants. However, the basic lawsuit died out with the bankruptcy. A bunch of ReplayTV users, led by Craig Newmark from Craigslist, actually tried to continue the case on their own, to have those features declared legal, but after the networks promised not to sue those users for using the features, the judge tossed the case.

Left unresolved, of course, is whether or not features like commercial skip are actually legal.

As some are pointing out, the TV networks may have missed a golden opportunity by not continuing the fight against Craig and the other users, since they wouldn't be able to afford the bigtime lawyers that Ergen and Dish can easily toss out here. So the TV networks basically have to make the decision if this is really a battle worth fighting.

It does seem clear that the anti-consumer folks who run the TV networks would certainly like to slap Dish around for this move:

"I think this is an attack on our eco-system," said NBC Broadcasting chairman Ted Harbert on a conference call Monday. "I'm not for it."

Isn't it just like NBC to think that a tool that the public actually finds useful is an "attack" on their ecosystem? At some point, in the way, way distant future, perhaps we'll live in an age where companies like NBC Universal recognize that, when things are more efficient and easier for consumers, it is a good thing, rather than something to freak out about and declare evil?

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FBI Explores The Implications Of Bitcoin

Mike Masnick — Tue, 15 May 2012 11:56:00 PDT

Remember Bitcoin? The online cryptographic currency that got a lot of attention last year, but quickly faded? There was some political grandstanding against it, like when Senator Chuck Schumer declared that Bitcoin was a form of money laundering. And, now, the FBI is trying to understand Bitcoin, sending around a document warning that criminals might (*gasp*) use Bitcoin.

The report is pretty even-handed, actually. It notes that there's a reasonable likelihood that "malicious actors will exploit Bitcoin to launder money." However, it at least admits, noting that this is no different than cash, that users of Bitcoin "value the currency for many of the same reasons people trust Federal Reserve notes: they believe they can exchange the currency for goods, services or a national currency at a later date." It does highlight some "unique features" that make Bitcoin especially suited for illegal activity -- but most of those just seem to be examples of Bitcoin being used for questionable activity, rather than specific features of Bitcoin.

It also suggests that the FBI isn't that worried about the fact that some uses of Bitcoin can be anonymous -- noting (correctly) that it's not as anonymous as some people think, and good old fashioned detective work can often uncover the people:

Although Bitcoin does not have a centralized authority, the FBI assesses with medium confidence that law enforcement can discover more information about, and in some cases identify, malicious actors, if the actors convert their bitcoins into a fiat currency. Thirdparty bitcoin services may require customers to submit valid identification or bank information to complete transactions. Furthermore, any third-party service that qualifies as a money transmitter, and therefore a MSB, must register with the FinCEN and implement an anti-money laundering program.

All in all, I actually expected more hyperbole and fear mongering, but seeing as this was meant for internal use, rather than for political gain, it seems like the paper was pretty even-handed. Of course, none of that matters at all if no one is using Bitcoin any more...

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If You Meet A Censor, Ask Why They Haven't Become Moral Degenerates Themselves

Mike Masnick — Tue, 15 May 2012 10:46:00 PDT

Last year, we wrote about one of China's chief censors, the creator of the Great Firewall of China, who did an interview where he talked about how important censorship was to protect people -- while also noting that he, himself, had five VPN accounts to get around the Great Firewall... for research purpose only (he promised). I'm reminded of this while reading an interview with a Kuwaiti censor who seems quite proud of her role in keeping horrible content from being consumed by people in Kuwait -- while also talking about how much she gets to learn in reading all this content.

I found out about this interview from Adam Thierer, who has a simple question he thinks every censor should be asked:

But here’s where the reporter missed a golden opportunity to ask Dalal the one question that you must always ask a censor if you get to meet one: If the content you are censoring is so destructive to the human soul or psyche, how then is it that you are such a well-adjusted person? And Dalal certainly seems like a well-adjusted person. Although the reporter doesn’t tell us much about her personal life or circumstances, Dalal volunteers this much about herself and her fellow censors: “Many people consider the censor to be a fanatic and uneducated person, but this isn’t true. We are the most literate people as we have read much, almost every day. We receive a lot of information from different fields. We read books for children, religious books, political, philosophical, scientific ones and many others.” Well of course you do... because you are lucky enough to have access to all that content! But you are also taking steps to make sure the rest of your society doesn’t consume it on the theory that it would harm them or harm public morals in some fashion. But, again, how is it that you have not been utterly corrupted by it all, Ms. Dalal? After all, you get to consume all that impure, sacrilegious, and salacious stuff! Shouldn’t you be some kind of monster by now?

Thierer goes on to posit that the "Third-Person Effect Hypothesis" explains the issue. It says that "people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others," while assuming, however, that they are somewhat immune to those effects. It's an interesting post, and that question should be used whenever anyone has the pleasure of meeting (or better yet, interviewing) an official government censor.

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Who Needs SOPA When Courts Will Pretend SOPA Already Exists?

Mike Masnick — Tue, 15 May 2012 09:37:00 PDT

Back in November, we wrote about one of a series of cases we had seen where trademark holders were going to court with a list of domain names that they insisted were selling counterfeit goods and getting the courts to issue injunctions that appeared to be quite similar to what SOPA would have allowed had it passed. That is, basically upon request, a trademark holder was able to get domain registrars to kill domain names, while forcing search engines and social networks to put in place blockades barring such sites from being listed. It appears that more trademark holders are taking notice. Jeff Roberts has the story of (regular IP extremist) Louis Vuitton trying the same thing.

Basically, it lists out a bunch of websites that may or may not be involved in the sale of infringing works. Most, if not all of them, are foreign run. However, it is seeking a full injunction against those sites, not just to get them to stop selling any counterfeit goods, but to get the domains themselves turned off, and to block search engines from being able to find them:

Entry of an order requiring the Subject Domain Names, and any other domain names being used by Defendants to engage in the business of marketing, offering to sell and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to Louis Vuitton’s control so they may no longer be used for illegal purposes.

Entry of an Order that, upon Louis Vuitton’s request, the top level domain (TLD) Registries for the Subject Domain Names and their administrators place the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the Registries which link the Subject Domain Names to the IP addresses where the associated websites are hosted.

Entry of an Order that, upon Louis Vuitton’s request, those in privity with Defendants and those with notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars and domain-name registries or their administrators that are provided with notice of the injunction, cease facilitating access to any or all domain names and websites through which Defendants engage in the sale of counterfeit and infringing goods using the Louis Vuitton Marks.

Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsible for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court.

As we noted back in the fall, there are all sorts of problems with these kinds of rulings (assuming that the South Florida court in this case follows the lead of previous courts). First of all, it's not clear under what authority the courts can issue such broad injunctions. Second, there are serious jurisdictional questions. But the biggest issue of all is that the court seems to be requiring non-parties to the litigation to take pretty drastic action: requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse. Now, it's likely that most -- or perhaps all -- of the sites in question are selling counterfeit goods. But how long do you think it will be until others use these cases as precedent for taking down all sorts of sites -- even those that are perfectly legitimate?

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Fearmongering About Cyberwar And Cybersecurity Is Working: American Public Very, Very Afraid

Mike Masnick — Tue, 15 May 2012 08:31:00 PDT

Well, it looks like all the fearmongering about hackers shutting down electrical grids and making planes fall from the sky is working. No matter that there's no evidence of any actual risk, or that the only real issue is if anyone is stupid enough to actually connect such critical infrastructure to the internet (the proper response to which is: take it off the internet), fear is spreading. Of course, this is mostly due to the work of a neat combination of ex-politicians/now lobbyists working for defense contractors who stand to make a ton of money from the panic -- enabled by politicians who seem to have no shame in telling scary bedtime stories that have no basis in reality.

But it's all working. And, by working, I mean scaring the public unnecessarily. As reported by Wired, a new survey from Unisys finds that Americans are more worried about cybersecurity threats than terrorism, and they seem pretty worried about those threats. When asked about which security issues were the highest priority, survey respondents noted:

Protecting government computer systems against hackers and criminals (74 percent)
Protecting our electric power grid, water utilities and transportation systems against computer or terrorist attacks (73 percent)
Homeland security issues such as terrorism (68 percent)

Of course, it's likely that the vast majority of the American public has absolutely no idea what the actual risk is of any of these things happening. But they are familiar with computers, and there's been a lot of talk about cybersecurity lately, so "ooooooh, scary!" Now, here's where the mainstream press could come in and point out the lack of evidence for any real or significant cybersecurity threat and help people realize that they might be best off focusing their attention elsewhere. But talking about planes falling from the sky is much more fun.

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Very Few Companies Fight Back Against Patriot Act Gag Orders

Mike Masnick — Tue, 15 May 2012 07:19:00 PDT

A few years ago, when we wrote about Nicholas Merrill's successful fight to reveal that his ISP had been gagged by a "national security letter" (NSL) from the FBI, we noted that "For every Nicholas Merrill, you can bet that thousands of others just gave in and didn't put up a fight -- even if the requests were bogus." It appears that was absolutely true.

Wired reports that, in the past few years, since the FBI was told it needed to at least tell companies they could challenge the gag order on NSLs, only four challenges have been issued on over 50,000 NSLs. In two of the four cases, the FBI backed down and let the company notify the individual. As Wired notes, it had asked the FBI the same question a couple months ago, and the FBI claimed (incorrectly) that "there are no stats" and suggested that no one had challenged it other than Merrill.

Remember, NSLs are requests from the government (along with a gag order), but they are not subpoenas nor do they have any real oversight. Yet the FBI gets to issue tens of thousands of them, asking companies for information -- and imposing a strict gag order on them -- and most companies just roll over and do it.

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