Apr 11

Android Marketplace Takedown Notices

A good chart from Chilling Effects about the 206 complaints filed by IP holders to get apps taken down from the Android app market in February 2011.

Chilling Effects - Android Takedown Notices - February 2011

And some discussion about why some of these takedowns are more questionable than others.

Unique among the copyright complaints in its indirection, the RIAA filed three complaints naming dozens of apps that allegedly “facilitate the unauthorized streaming and downloading of popular sound recordings, the vast majority of which are owned or controlled by RIAA members.” Its complaints, complete with screenshots, asked for the removal of apps for ringtone creation and MP3 listening. This is an attenuated claim. RIAA isn’t alleging that Google, or even the apps, are direct infringers of member copyrights. Rather, it claims that because Google hosts apps (or in some cases, serves ads inside them) that enable end-users to make infringing copies of music, Google should be held responsible for the users’ infringing conduct — a sort of once-removed contributory or vicarious liability claim. Is there a law of contributory inducement, after Grokster?

via Chilling Effects – Takedown Complaints in the Android Marketplace

Apr 11

Righthaven Table Pounding

A step in the right direction against Righthaven and for sanity.

Judge Hunt criticizes how Righthaven has attacked opposing counsel, writing: ‘There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here.’

via Paid Content – Righthaven’s Secret Contract Revealed: Will Its Strategy Collapse?

Mar 11

Music Piracy By The Numbers

Piracy also skews young…

Pirates vary by age group – Warner Music

The only way to properly advise those accused of infringement is to know the facts. Just from this graph one thing is clear: if thousands of internet subscribers are sued based solely on their IP address, it’s a good chance that that direct infringers aren’t the 26-50 year old parents whose name is on the internet bill, they’re the 13-17 minors who use the computers in the house.

Mar 11

Good predictions

Although I don’t totally agree with the EFF’s scorched-earth rhetoric, I do think that these two predictions about what would happen in the online legal/policy/business world were eerily accurate.

1. See the emergence of Righthaven:

Since 2000, the music industry has most spectacularly flailed (and failed) to combat the Net’s effect on its business model. Their plans to sue, lock-up and lobby their way out of their problem did nothing to turn the clock back, but did cause serious damage to free speech, innovation and fair use.

These days, the book and newspaper industries are similarly mourning the Internet’s effect on their bottom line. In 2009, Rupert Murdoch changed the tone of the debate when he called those who made fair use of his papers’ content “thieves”. We think 2010 and beyond will see others in the print world attempt to force that view, and break the fair use doctrine by lobbying to change accepted copyright law, challenging it in the courts, or by placing other pressures on intermediaries.

A cluster of similar battles around user control are also gathering around e-reader products like Kindle and Google Book Search, many of which rewrite the rules for book ownership and privacy wholesale.

So, in 2010, will the printed word step smartly into the digital future, or will it continue to stay stuck in the denial and bargaining phase that dominated digital music’s lost decade?

2. See the Copyright Office clarifying that DMCA does not prohibit cell phone jailbreaking

An increasingly active hobbyist community is figuring out how to make a range of devices more useful and open. They are learning how to install new software or make third-party parts, devices, and services work with proprietary high-tech products like video game consoles, printers, portable audio players, home entertainment devices, e-book readers, mobile phones, digital cameras, and even programmable calculators. And, oh yes, contending with restrictions on both cars and garage doors.

Frequently, indignant manufacturers are threatening these tinkerers with legal troubles. Often, these threats are legally baseless — but this hasn’t stopped manufacturers from bullying hobbyists into keeping quiet about their innovations…

In 2010, phone jailbreaking will become even more mainstream, and the concept will be routinely applied to other sorts of devices. EFF’s Coders Rights Project will have no shortage of work to do defending users and developers who want to make their hardware do more than it was designed for.

via the EFF

Feb 11

Indie Video Game Developers: The Clone Wars

For game developers copying isn’t black and white. “Inspired by” can sometimes rise to the level of wholesale theft. Copyright law expressly doesn’t protect scenes-a-faire, facts, phrases, concepts and ideas, but in practice, the “Total Concept and Feel” approach to analyzing infringement that some courts adopt essentially throws all of those restrictions on the law out of the window allowing courts to protect (or not protect) whatever they want.

So what is “gameplay” and is it protectable? Can copying that constitute infringement? Probably under the right facts. Young game developers learning their craft who want to make a game inspired by an old classic should do so at their own risk.

One carefully worded cease-and=desist letter could mean game over to your hard work.

It doesn’t take an eagle-eyed observer to point out the remarkable similarities between Gameloft’s top software and the most popular console games. The science fiction shooter N.O.V.A. is a thinly veiled knock-off of Bungie’s Halo, right down to the warthog-esque vehicle and blue AI chick. And Zombie Infection bears a striking resemblance to Resident Evil 5

Another sticky situation was Capcom’s recent iPhone game, MaXplosion, which reeked of Twisted Pixel’s ‘Splosion Man in a brazen clone that the original game’s programmer called “complete theft”. Both games feature frenetic red protagonists, confined to laboratories, that leap in the air by detonating their internal organs. Or something.

Feb 11

An IP address is not a person

Where I work, we often speak with plaintiffs in the various file-sharing/copyright infringement free-for-alls going on right now. The most troubling cases are the ones with accused plaintiffs with unsecured internet connections who clearly have no idea what BitTorrent is.

An IP address is not a person. Placing the blame for infringement that happens on an unsecured Internet connection on the person who pays the Internet bill isn’t just lazy legal practice, it totally subverts the way direct infringement should be analyzed.

Also keep in mind that the people who still use unsecured internet connections these days are probably amongst the least savvy of Internet users, so they’re probably the least likely people to be using services like BitTorrent for illegal downloading.

The legal question of who’s liable for file-sharing on an “unsecured” internet connection is still up for wild conjecture in the United States until some of these cases actually reach the courts, but it’s finally getting some clarification in the UK.

Wrapping up the last of the United Kingdom’s notorious copyright infringement “pay up” letter cases, a UK patent and copyright judge has had a major revelation. Just because some lawyer cites an Internet Protocol (IP) address where illegal file sharing may have taken place, that doesn’t mean that the subscriber living there necessarily did the dirty deed. Or is responsible for others who may have done it…

All this may seem rather obvious to Ars readers, but these are key principles that are only now finding their way in major judicial opinions. The revelations could have some serious implications for the UK’s Digital Economy Act, too. That law requires ISPs to forward P2P warning letters from copyright holders, and it opens the door to throttling and Internet disconnection for repeat infringement.

via ARS technica

Feb 11

A Harsh Word for Patent Trolls

Patent application for lego miner figure

Having interacted with a lot of lawyers in the past three years, I’ll go out on a limb most lawyers really do act nobly in this profession. Maybe I’ve just hung out in good neighborhoods, but the vast majority of lawyers that I’ve met are concerned with being professional, doing a thorough job, and being highly ethical.

If you’re around enough the law though, you also see some of the dark side. After all, the law is a business, and shady not-quite-ethical things happen all the time in any business.

Since I work at a non-profit where we’re unconcerned with making money from the people who contact us, we can advise people to act in a way that generally works toward the greater good. For the clients who have questionable agendas (which is a higher percentage than you’d think), we can tell them politely to find someone else to do their dirty work.

Most lawyers don’t have that privileged though. They have to pay their bills, so free from any sort of do-gooder-moral-compass, they do the economically rational thing and take the work given to them. Since lawyers are mostly just the arms, legs, and mouths of their clients, the general public might not realize that a scummy client can give an otherwise decent lawyer a bad name.

Patent and copyright trolling is part of that dark side of the law, and the companies that do the trolling are just that kind of scummy client who can pay a lawyer handsomely to help spread misery and ruin small businesses in the name of “protecting intellectual property.”

IP lawyers should make peace with what they do when they choose to work with trolls. Prey on the weak. Stifle innovation. Lose your soul. Cash your paycheck. Feed your family.


Trolls go after the smaller companies first. They pick on startups because undercapitalized small companies cannot afford to be ideological. When faced with the prospect of extensive legal fees and a huge distraction, they do the pragmatic thing – they settle. The troll can accept less from a startup because the troll can later argue the startup has a small market share and a limited ability to pay. A smaller settlement does not preclude larger settlements with bigger players later. In a side note, one troll accepted services from our portfolio company in lieu of cash because the troll could not technically do the thing that our company was accused of copying so we are providing them with the capability. The irony there kills me. It feels a little like being forced to dig your own grave before being shot.

The trolls then use the money extorted from young startups to fund the more expensive and ambitious cases against larger more established companies with deeper pockets. These folks have more to lose but they also have more resources to defend themselves. I don’t often think about the plight of large companies but this attack has a direct impact on young companies.

via Union Square Ventures

Feb 11

Viacom v. Youtube: Business as Usual

This article explaining why the Viacom v. Youtube ruling (1) didn’t change the law and (2) will have little to no effect on online entertainment industry business practices so well it doesn’t even need prefacing.

It’s a bit amusing watching the entertainment industry and copyright maximalists respond to the a judge’s ruling upholding the basics of the DMCA safe harbors. We already noted Viacom’s initial attempt to respond to the ruling by claiming that the case is about something entirely different than it’s actually about. Take for example, the article a few of you sent in from someone pretending that Viacom probably wanted to lose (uh… yeah). Some are raising some interesting questions however. For example, this article by THREsq questions whether or not user-generated content sites will drop their filters now that the judge said they’re not required. This question seems silly for a variety of reasons. First, I don’t think any company is going to act directly in any way based on this ruling — since everyone knows that there’s still an appeals process to go through. Second, there’s no reason why any company would change what they’re doing because everyone in the tech world already knew that the DMCA does not require filters, even though Hollywood wants to pretend it does. If Congress intended the DMCA to require filtering software, it would have included that in the law.

via Techdirt

Jan 11

Did you hear the joke about the comedian and copyright law?

Comedians don’t resort to courts when their material gets copied, instead the industry deals with thieves internally by blacklisting them. As copying whole acts became easier, the industry shifted. For modern comedians, it’s not about the “jokes” anymore, it’s about the people who tell them.

Comedians use social norms rather than law to enforce their joke rights, and these social IP norms have actually been part of the process that shifted comedy away from one-liners and “rim shot” jokes to today’s long-form observational comedy…

For instance, early twentieth century vaudeville featured plenty of joke and “bit” theft. Comedic ideas were common property; it was the performance that mattered. But as joke stealing became taboo in the 1950s and ’60s, thieves would find themselves blackballed from clubs or ostracized by their fellow comics.

As this protection proved itself to be effective in practice, it encouraged comics to spend more effort on their “text.” Jokes were no longer common property, so comics invested both time and money writing (and hiring others to write) new material in a way they rarely did before.

via ArsTechnica

As a law-student legal clerk at New Media Rights, Shaun Spalding provides pro-bono legal assistance to artists, filmmakers, entrepreneurs and anyone else who creates or shares their work online. If you have any legal questions, you can direct them to Shaun’s supervising attorney. You can tap into what he's thinking via Tumblr, or figure out what he's doing via Twitter: @SASpalding

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