TorrentFreak reports that iiNET has refused to cooperate with rights holders with identifying those who illegally download content. The reasons for not cooperating are twofold – iiNET wants rights holders to start offering their content in a timely and inexpensive manner, and the ISP refuses to store identifying information on its customers.

On the first point, it’s no secret that consumers in Australia get screwed over more often than any other country. Not only do they have to wait almost a year after the films come out overseas, but the prices for said content, even digitally, is exorbitantly high. Speaking to TorrentFreak, iiNET’s Chief Regulatory Office, Steve Dalby, had this to say:

“The rights holders are still insisting ISPs should perform work on their behalf instead of addressing what we have always said is the root cause of the infringements – the limited accessibility to desirable content and the discriminatory and high cost of content in Australia. Infringements are a symptom – access is the problem.”

As for the proposal that iiNET track its customers data, Dalby said that its not their responsibility to do so:

“iiNet won’t support any scheme that forces ISPs to retain data in order to allow for the tracking of customer behaviour and the status of any alleged infringements against them. Collecting and retaining additional customer data at this level is inappropriate, expensive and most importantly, not our responsibility.

It’s not iiNet’s job to play online police. The High Court spoke loud and clear in their verdict when they ruled categorically that ISPs have no obligation to protect the rights of third parties, and we’re not prepared to harass our customers when the industry has no clear obligation to do so.”

The arguments for a six-strike system in the U.S. makes a little more sense than in Australia. U.S. consumers do have more choice when it comes to accessing inexpensive digital content for film and music. iiNET would probably be more willing to engage in talks with rights holders if Australian consumers were given access to new content at the same time, and same price, as other countries. There’s plenty of business to be had if ISPs and rights holders worked together to provide easy and cheap access to content, but rights holders aren’t exactly in the business of making it easy for consumers.

Across the Atlantic, a similar case in which copyright holders have demanded the identity of an alleged pirate be forfeited by a Swedish ISP wherein the European Court of Justice has decided that, yes, the ISP could be required to hand over the IP “which was allegedly used in an infringement.” This doesn’t mean that the ISP must now hand it over, per se, but rather that the case will return to Sweden’s Supreme Court in order to determine if the IP address will indeed have to be shared with the copyright holders.

While this case is a suit to obtain the identity of one person who stored 2,000 audio books on his server whereas the California case was about ninety BitTorrent users, the same concerns cited by Judge Howard R. Lloyd in the BitTorrent case still persist, namely that the process of identifying the user via IP address is no guarantee of identifying the culpable person.

Since the EU case is focused on only one user, it creates a dilemma between how courts should arbitrate when an ISP handing over IP addresses associated with illegal file-sharing. If it’s one, the thinking seems to be that the risk of misidentifying the copyright infringer is low; but if multiple identities are being requested, however, the risk of misidentifying copyright infringers goes up.

Granted, these courts from country to country aren’t expected to rule in accordance.

In a response to a We the People petition in January that targeted the PIPA and SOPA, the White House released a statement then saying that while they it was committed to fighting online privacy, it would not do so in such a way that compromised an “open and innovative internet.” A few days after the White House’s statement, online opposition to the bills culminated with a widespread internet protest on January 18th in which several popular sites, including Wikipedia, reddit, Mozilla, craigslist, et al., commenced with a 24-hour blackout of their sites. Subsequently, the effort was enough to turn the political tide against PIPA/SOPA and the bills were eventually shelved although continue to linger in the shadows of Congress.

In today’s report, the White House cautiously reiterated its support for bills that target online piracy yet it “will not support legislation that reduces freedom of expression, increases cybersecurity risk (including authority to tamper with the DNS system), or undermines the dynamic, innovative global internet.” The statement continues to say that the Administration is open to the idea of working alongside Congress in order to make sure that these issues are “addressed in a manner that takes in account the challenges and opportunities of the Internet and that is consistent with the Administration’s goals and public policy principles.”

At this point, however, any further debate and talk about the inequity of PIPA and SOPA would appear to be moot since a day after the internet’s constituency drove back the bills, the federal government decided it didn’t need such legal implements in order to shut down websites. So really, the White House can say they oppose SOPA all they want – it doesn’t really mean anything anymore.

At any rate. Here’s the full Intellectual Property Enforcement report.

White House Annual Intellectual Property Report

[Via Mashable.]

In the MPAA’s suit against Hotfile, Google submitted an amicus brief and cited that part of its success has relied on the “safe-harbor” protections allowed by the Digital Millennium Copyright Act. Google previously used the “safe-harbor” provision in its successful defense against a lawsuit filed by Viacom. In that case, which was thrown out in 2010, a federal judge ruled that Google was protected by the DMCA and could not be found liable for providing an online service on which individual users uploaded copyrighted content.

Going against Viacom’s claim that Google permitted copyrighted material to exist on YouTube while simultaneously profiting from it, Judge Louis L. Stanton of United States District Court for the Southern District of New York wrote, “The present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent a mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.”

In the amicus brief, Google explains that the “safe-harbor” provision should be extended to protect Hotfile because, as evidenced in the Google’s Viacom case, the responsibility of policing the internet for copyright infringements should rest with the copyright owners and not with internet service providers.

The Hotfile case is slightly peculiar because Hotfile maintains that it doesn’t even support a search feature for its site, which distinguishes it from other file-sharing sites that have been successfully sued by copyright holders in the past.

That the courts retain a uniform interpretation of the DMCA’s “safe-harbor” provision is of utmost interest to Google’s case with Viacom, which is currently in appeal. Should a judge decide that the provision doesn’t provide legal protection to Hotwire, the ruling could open a nasty can of worms in Google’s defense against Viacom.

Google’s full amicus brief can be found below.

Google Amicus Brief PDF

So if you’ve been following the saga of SOPA, you are likely familiar with the author of the bill, Rep. Lamar Smith. He’s been a regular cast member in this epic struggle for Internet freedoms. If you’re short on time, though, here’s the abridged version: Lamar Smith believes the Internet is a wretched hive of scum and villainy when it comes to copyrighted material because he thinks people regard copyrights the same way they regard the newspaper you put in the bottom of a bird’s cage.

Turns out, however, that the copyright-violating apple doesn’t fall far from the tree for Mr. Smith.

VICE magazine writer Jamie Lee Curtis Taete took it upon herself today to check out Smith’s campaign website and make sure that all of the material on there was copyright-verified. Fair enough, I believe, to expect that the SOPA author should at least bear the standard (however terrible) that he’s trying to establish. Taete found a pre-SOPA’ed version of Smith’s site and discovered this image being used as the background:

Taete tracked the image back to the photographer who took the photo, DJ Schulte, and…. well, c’mon, you see where this is going…

And whaddya know? Looks like someone forgot to credit him.

I contacted DJ, to find out if Lamar had asked permission to use the image and he told me that he had no record of Lamar, or anyone from his organization, requesting permission to use it: “I switched my images from traditional copyright protection to be protected under the Creative Commons license a few years ago, which simply states that they can use my images as long as they attribute the image to me and do not use it for commercial purposes.

“I do not see anywhere on the screen capture that you have provided that the image was attributed to the source (me). So my conclusion would be that Lamar Smith’s organization did improperly use my image. So according to the SOPA bill, should it pass, maybe I could petition the court to take action against www.texansforlamarsmith.com.”

VICE said it contacted the office of Lamar Smith but, curiously, has not received a response.

And so, it is the end of the day and I have no ending for this astounding news so I will simply take a bow. See you tomorrow.

Due to what it claims is a failure to receive any royalty kickbacks, EMI Music Publishing has filed a lawsuit against Grooveshark’s parent company, Escape Media Group. The New York Times explains:

In the suit, filed in New York State Supreme Court in Manhattan, EMI seeks unspecified damages. But in a series of recent e-mails and legal correspondence included with the filing as evidence, EMI asks Grooveshark for at least $150,000 in royalties.

Grooveshark says its service is legal under the Digital Millennium Copyright Act, a federal law that protects Internet companies that host third-party material if they comply with take-down notices from copyright holders.

EMI is the fourth corner of the major music label square – the other three being Sony Music, Warner Music Group and Universal Music Group – that is suing Grooveshark over licensing and copyrighting issues.

According to a statement provided to The Times, Grooveshark believes that “this is a contract dispute that we expect to resolve.” While that’s an optimistic outlook, this latest legal action against Grooveshark leaves little to look forward to in the future as they’re now involved in litigation battles on four separate fronts. Personally, I don’t like this news and hope Grooveshark can resolve these issues because if they disappear I’m gonna be left without a dealer to get my Philip Glass fix. Having said that, it doesn’t look good for home team.

But given this government’s track record, an industry-friendly justice is good for both the entertainment business and the business of government. And unfortunately, there is no white knight remaining big enough or confident enough to take on both Big Content and a sympathetic federal government. 

Before she entered the judicial realm, Sotomayor was a litigator dealing in intellectual property at a major Manhattan law firm. She spent much of her tenure tracking down and rounding up counterfeiters on behalf of Fendi, and suing importers of counterfeit products.

As a Supreme Court judge, Sotomayor would join a justice system already stacked with former intellectual property attorneys. President Obama has already appointed five attorneys to the Department of Justice who made names for themselves bringing lawsuits against file-sharers for the Recording Industry Association of America.

Sotomayor by herself should yield little concern about how she would handle Web-related intellectual property cases destined for eventual appearances before the Supreme Court. But in conjunction with this administration’s obvious preference for Big Content IP skull-crackers—and Congress’s willingness to bend to the will of Big Content—should raise the volume of an already sounding alarm.

We need to know: Who’s side is Sotomayor on?

Those currently making, prosecuting, and interpreting intellectual property laws have a clear historical record of siding with Big Content. Sotomayor’s most notable decision as a judge regarding the digital copyright issue involved freelance writers versus Big Content publishers like the New York Times, Sports Illustrated, and Newsday. Freelance writers were peeved that their work, which was contracted for one-time print publishing, was being stored in online databases for use on publication websites.

Sotomayor sided with Big Content by interpreting the law in their favor. An appeals court would later overturn her decision, saying that the publications needed to negotiate for digital rights. The appellate decision was upheld by the Supreme Court. It might be unfair to say Sotomayor would bring a pro-Big Content viewpoint to the Supreme Court based on her anti-counterfeit work for Fendi, but her judicial history might suggest otherwise.

Despite Motion-Picture-Association-of-America-backed research spread worldwide to influence the creation of tougher international intellectual property law—research that equated pirating with counterfeiting and linked piracy to terrorism, drug trafficking, the sex trade, and Asian knife fights—two counter studies have surfaced recently illustrating how file-sharers and torrent users buy more music and DVDs, go to more movies, and buy more entertainment equipment.

Nevertheless, government agencies have a record of siding with recording and motion picture companies who pretend they are hemorrhaging money due to those same file-sharers and torrent users. They’d rather it not be pointed out that even though “Wolverine” was leaked onto the Internet a month in advance of its release, it still grossed $87 million opening weekend, or that Forbes’ Celebrity 100 list reveals Beyonce herself made $87 million last year, and Madonna made over $100 million.

The point is Big Content is not suffering as they pretend, but they sure have a lot of friends in government around the world. It’s not so much about what’s right and just, it’s not even so much about how much money Big Content isn’t really losing. It’s about ultimate control of a digital environment and squashing competition.

In the past ten years, Big Content has brought its business-is-war philosophy to the only real competition remaining: Internet upstarts and Internet users who don’t want to be corralled back into walled gardens with premium entry fees and anti-consumer, abusive pricing structures.

The assault on consumer rights and personal liberty is happening everywhere continuously, perpetrated in the name of intellectual property rights. The MPAA labeled RealDVD “StealDVD” because the motion picture organization doesn’t think even paying customers have a right to back up their own legally purchased discs for personal use.

Cable companies are putting caps on data, introducing tiered pricing, throttling torrents. Telecoms want to block unapproved video transfers. The Associated Press wants to rewrite fair use, revive “hot news” protections, and block out other forms of news distribution. The National Football Association wants to say football players names and stats are solely its own intellectual property. Big Content wants to snoop into and control everything Internet users do online. 

It goes on and on, and unfortunately there are few people’s champions remaining. The government is clearly on Big Content’s payroll. Google, which at one time was brassy enough to make grand shows of defiance, has now also fallen in line. All it took was a billion-dollar Viacom claim, and Google bent over to the AP, and now to the rest of Big Content by actively blocking torrents.

With all that in mind, it’s a good idea to quiz Sotomayor fairly heavily about her stances on intellectual property. If Big Content gets its own Supreme Court justice, the Internet as you’ve come to know it—the one where what you do is your business—is toast. There’ll be nobody left to fight for you.
   

For the most part, the study is fairly typical fear mongering, the kind used to justify calls for ISPs to police traffic on their networks on behalf of the government and entertainment companies. It goes a little farther than that, however, in that it directly calls for governments to share intelligence with entertainment companies in order to help them police piracy networks. The authors call on governments to have a “commitment to high level accountability for intellectual property protections” and “laws to grant investigators greater authority to sustain investigations, conduct surveillance, and obtain search warrants.”

In short, the study calls for a Patriot Act for the Entertainment Industry.

Studies like this in the past, including one from the MPAA that was outed for vastly inflating piracy numbers, have been used to convince legislators to pressure colleges to comply with the corporate copyright police, to pass DMCA legislation routinely abused by copyright holders as an affront to fair use, and, the least of them, to require awareness propaganda on legally purchased or rented DVDs in advance of the film—you know, those ones that treat law abiding citizens like criminals and can’t be skipped.

In addition, by linking piracy to terrorism, human trafficking, drugs, and other crime syndicates, the MPAA makes it easier for governments to use crime fighting as a mask for violations of digital privacy.

The new study in question uses “piracy” and “counterfeiting” interchangeably, though they are not the same thing, to bolster the cause. Counterfeiting is selling imposter merchandise, which would include ripped off DVDs, which there are already plenty of laws against. Piracy via download isn’t technically the same.

It begins with heavy handed tales of blood and guts horrors loosely connected with piracy: knife and spear fights in Malaysia; international slave trade in Britain (one slave master was found to have DVD counterfeiting operation going at the same time); South American Muslim terrorists writing piracy proceeds checks to Hezzbollah. The IRA, India’s D Company, the Russian mafia, all involved and making money lots of money from selling ripped off DVDs.

Here’s something from the report you probably didn’t know: DVD piracy has a higher profit margin than narcotics sales. You probably didn’t realize knock-off DVDs were selling at $150,000 per pound, did you?

The report lumps all organized crime together, which artificially boosts the impact and profitability of piracy by citing “combined” sales of illegal goods. Therefore a $100 worth of DVD sales plus a $5,000 coke sale have a combined price of $5,100, unevenly boosting the value of the DVDs.

And—shocker!—organized crime syndicates have various ways of making money, meaning that if they’re involved in one crime, they’re likely involved in other crimes, so if you track one aggressively you can track the others and nail the big crooks. While that’s true, this is where two worlds—the criminal world and the “regular guy” world—cross over, because this is how we get to a place where people’s Internet activity is carefully monitored on behalf of the copyright police.

Oh look, here’s an illegal download. Small fish, no payoff, but the download came from this person making that download and tons of others available. And that person is also a YouTube use and might be loosely related to a DVD counterfeiter, an intellectual property thief, a spammer, a hacker, a drug dealer, a money launderer, a human trafficker, and a terrorist supporter. Therefore a cabal of government, ISPs, and entertainment companies have every right to watch every move you make online so the entertainment company can protect its industry and the government can crack down on crime.

That’s unconstitutional in America, but so far legislators have sided with Big Entertainment instead of the citizens.  Big Entertainment also donates heavily to politicians, which might account for not only their acquiescence but also their apparent reluctance to enact Net Neutrality regulation that would prevent digital packet inspection.
 

Rep. Ed Markey (D-Mass), chair of the committee and sponsor of pro-Net Neutrality legislation, videoed the meeting, an historical first, and put up the video on YouTube.  At another time, Markey interviewed Hurley one-on-one about his sudden success, his hopes for YouTube, and what it’s like be goofy and a billionaire.

Okay, so the last question never happened.

In a video also posted on YouTube, Hurley expressed his desire that YouTube become the Internet’s Town Hall, and a bastion of democracy. Check out the video for more back-patting, ego-stroking, and grandiose delirium.

After all, getting your own audience in front of United States lawmakers, and your behind smooched by a Congressman – on video no less – is bound to inspire some dreamy grandiosity.

It wasn’t all spits and giggles for Hurley though. Cuban and others were present at the committee hearing to rain on his parade a little. Shortly after Markey’s introduction, Rep. Mike Ferguson (R-NJ) pressed the young executive about YouTube’s lax copyright enforcement.

Hurley offered up a DMCA defense, to which Cuban let out a terse balderdash! Cuban accused YouTube of ignoring infringements by hiding under a DMCA blanket.

On his blog, Cuban continued the criticism:

Which puts Youtube in a position of acting just like your typical big market radio station or music radio network.

Youtube immediately went from a small, but interesting community for its original content, to basically being just like Clear Channel. Responsible for programming its different "formats" with the "best" possible content that creates the greatest number of eyeballs and maximizes advertising revenue. Its big business, just like Clear Channel

Which leads to the question of who is going to do something about it? Who is going to take the responsibility of protecting that content that Youtube is paying for?

He ends sentences with prepositions because billionaires can do that, and he also doesn’t think any of the pervasive Net Neutrality fears will pan out, because billionaires can think outside the bandwidth. Cuban’s touted fiber as the key to mooting Net Neutrality points as the virtual world evolves beyond coaxial cable and telephone wires.

Both ArsTechnica and CNet have their own creative coverage of Mr. Hurley’s trip to Washington, be sure to check them out too.

In a press release Google says:

“Here there is a law which is specifically designed to give Web hosts such as us, or… bloggers or people that provide photo-album hosting online … the ’safe harbor’ we need in order to be able to do hosting online,” said Alexander Macgillivray, Google’s associate general counsel for products and intellectual property.

“We will never launch a product or acquire a company unless we are completely satisfied with its legal basis for operating,” Macgillivray told Reuters in an interview.

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