Top 10 Copyright Law Scandals That Rocked the World in 2009
As we bring an end to the year 2009, we close the book not just on one of the most interesting years in copyright but also one of the most interesting decades.
When January 1, 2000 came about there was a great deal of uncertainty about the future of copyright. The DMCA had just became law a few years prior and the lawsuit between the RIAA and Napster was just starting to make headlines. There was clearly a war brewing but no one was sure where it would lead.
The 2000s were the decade of that war. From the opening bell to an ongoing conflict today, the Web grew up to a point where copyright industries could no longer ignore it and they began to fight back as well as embrace it.
It was a decade of copyright conflict, as well as new ideas and new technology. Looking back on it, it is almost impossible to pick the ten biggest stories, especially since history is yet to decide what is most important, but I decided to make a run at it nonetheless.
With that in mind, here is my top ten copyright stories of the past ten years…
10. Apple Sues Psystar
In July of 2008 Apple sued a small Florida-based company called Psystar for copyright infringement. Psystar was the maker of so-called Hackintosh systems, non-Apple computers with OSX pre-installed, which is against Apple’s user license for OSX. Psystar countersued claiming, among other things, copyright misuse.
The two sides engaged in a very bitter lawsuit (technically two lawsuits as there was a separate one for OSX Snow Leopard and Leopard) but the tide quickly turned against Psystar as temporary restraining order barred Psystar from selling its clones and that order was, in turn, recently made permanent.
Psystar and Apple did partially settle their differences but there are question surrounding Psystar’s latest product, Rebel EFI, which allows home users to install OSX on Psystar machines.
Apple hasn’t taken a real stance on this program yet, but other clone makers use a similar process without any intervention from Apple.
9. SCO Tries to Kill Linux
In 2003 SCO sued IBM for $1 billion claiming the company had infringed its copyrights by putting code from its Unix operating system into Linux. These claims, however, have remained largely unproven even after over six years of legal wrangling.
The case, however, has moved like a soap opera. SCO and IBM exchanged their lawsuits and SCO also filed suits against Autozone and DaimlerChrysler, two Linux users. However, Novell eventually jumped in and sued SCO claiming that SCO did not own the rights to the Unix code they were alleging was infringed. According to Novell, who sold SCO the code in a previous deal, SCO did not purchase the rights to the code in the contract.
The district court seemed to agree and, in August 2007, ruled that Novell owned the code in question. The next month, SCO filed for bankruptcy protection.
However, the case isn’t quite dead yet, an appeals court has ruled that the lower court was hasty in making the determination about Novell’s ownership without a trial. As such, that case has been revived and a win by SCO could, at least in theory, bring the other lawsuits back as well.
Confused? Here’s a great timeline of the events on Wikipedia.
8. UMG and Viacom Take On Veoh and YouTube
In 2007, Viacom captured some big headlines by suing Google and YouTube for $1 billion for copyright infringement. However, a similar suit had already been filed by the record label UMG against the much smaller Veoh and that case was much farther along.
The problem was simple. Though the DMCA was not even ten years old, it was already looking antiquated, meant for a Web that was very different, before sites such as YouTube existed. It was unclear if or how the law would apply to them and copyright holders, frustrated by infringement on video sharing sites, decided to sue and let the courts decide.
In UMG’s case though, the court ruled against them, UMG has promised a swift appeal but the case was made clear that the DMCA safe harbor protections, which protect hosts from being held liable for infringements by their users, apply to sites like Veoh.
However, the YouTube case still may turn out differently as Viacom claims to have found evidence that YouTube had actual knowledge of infringing material and may have even uploaded content themselves. As such, the two cases may provide good tests for how far the safe harbor protections go and, through that, could play a major role in determining the kinds of services that available on the Web in the future.
7. Perfect 10 Sues Google
In 2004, adult content producer Perfect 10 sued Google over its relatively new image search engine. At issue was Google’s indexing and creation of thumbnails of unauthorized copies of P10’s images. Though the district court ruled against Google on the issue of thumbnail creation, the Ninth Circuit Court of Appeals, to where the case was appealed, ruled that they were a fair use.
The decision has been a touchstone in recent copyright history and has been the basis for much of the advancements in search engines over the past few years. It is also one of the most-cited copyright rulings as it lays down much of the framework for how fair use applies to the Web and where many of the limits are.
Note: Commenter Åsk Dabitch reminded me I omitted the Kelly v. Arriba Soft in talking about the Perfect 10 Case. The Kelly case was a 2002/2003 one that had many of the same facts but dealt with a much smaller search engine. Though it was the first to rule that thumbnails in a search engine were a fair use, elements of the case, such as in-line linking of images, were batted back to the lower court, which was unable to take the case as Arriba Soft had gone out of business. As such, Perfect 10, which was handled by the same court, has really become the definitive fair use case on this topic.
6. The Google Book Search Saga
In 2005 both the Author’s Guild and the Association of American Publishers sued Google over its book search project, which scans and indexes books from various libraries to make them searchable on the Web and also to display relevant snippets.
However, where the Perfect 10 case highlighted Google’s willingness to fight for fair use for everyone, the Google Book Search lawsuit brought an end to the era of Google as the legal champion as Google sought out a controversial settlement that would give them, and only them, the rights to scan and display books.
The first draft of that settlement, which would allow Google to scan and display in copyright but out-of-print books in exchange for a slice of the revenue, was scuttled earlier this year after the Department of Justice filed objected to elements of it. A revised settlement, which offers greater protection for international authors and for authors who can’t be located, was granted preliminary approval and is being commented upon now.
5. The Pirate Bay Saga
Established in 2003, The Pirate Bay has become one of the decades most interesting and most important copyright stories.
Since their founding, they have been sued repeatedly, had their hosting cut several times, been forced to move the site repeatedly as well, they had their host raided and, most importantly, the four founders were convicted of criminal copyright infringement in a joint criminal and civil trial.
Other bittorrent trackers and file sharing services have come and gone but The Pirate Bay has managed to hang on and is still active today. Through a combination of regular relocations to friendly countries, a shadowy organizational structure and solid technology, The Pirate Bay has been able to repeatedly and deliberately thumb the eye of major content creators and still keep the lights on.
Perhaps even more importantly, The Pirate Bay was the inspiration for The Pirate Party, which recently won two seats in the EU Parliament.
4. Three Strikes
The decade saw the war against file sharing heat up and one of the tools that has been repeatedly mentioned as a possibility for curbing such sharing is “three strikes” laws, which would disconnect file sharers after they received two warnings.
France, in many ways, has been at the forefront of this debate, passing a three strikes law only to have it declared unconstitutional as it did not allow judicial oversight. However, the government quickly regrouped and passed a new version of the bill with judicial oversight that has a better chance of surviving constitutional challenges.
New Zealand was also in the middle of this debate beginning in late 2008 with its proposals for section 92a of its copyright code, which would have forced ISPs to ban alleged infringers. After a significant amount of protest, that bill was scrapped and a new draft of it offers more oversight.
However, the issue has been raised in countless countries over the years and may be a part of the ongoing ACTA treaty negotiations. Only time will tell on that front.
3. Grokster Sets a New Standard
One of the most-cited copyright cases of all time has been the 1984 case Sony Corp. v. Universal City Studios, better known as the Betamax case. The case found that Sony’s Betamax product, which allowed home users to record movies and TV shows, was infringing as it was “capable of substantial noninfringing uses.”
Many were interested to see how the ruling would apply to file sharing networks, including Grokster, which had been sued by movie studios. However, in its 2005 decision, the Supreme Court punted in the issue and created yet another new test, the inducement test, to see if a product or service “induces” users commit copyright infringement. The court ruled against Grokster, which in turn forced the final closure of the service.
The Grokster ruling is now almost always cited along with Betamax and it created another test that inventors, including Web developers, have to be aware of when creating new products that interact with copyrighted works.
2. The RIAA Lawsuits
In September of 2003 the RIAA sued over 250 alleged files sharers for copyright infringement, marking the first time that individual file sharers had been sued by the organization. Since then, the RIAA has filed tens of thousands of such lawsuits, the majority of which have been settled before ever reaching a courtroom, usually for a few thousand dollars (no such luck for Denise Barker), but two have made it all the way to a verdict, the Joel Tenenbaum case and the Jammie Thomas case.
Though all three of the trials (the Jammie Thomas case was tried twice) were major victories for the RIAA in the court, resulting in large damage awards, the effort has failed to curtail illegal file sharing at all. As a result, the RIAA announced it would stop suing individuals, though it has been finishing up cases already in progress, and focus instead on working with ISPs to cut off file sharers from the Web.
However, as of today, that effort has produced no significant fruit other than offers to pass on infringement notices.
1. Napster Shuts Down
In 2001, as part of a lawsuit by the RIAA (though the Metallica one was far more publicized), Napster was forced to close their doors, after an injunction was filed against them. The lawsuit, which began in 1999, marked the beginning of the public’s awareness of copyright issues on the Web, the shutdown, marked the beginning of the copyright fight.
Though Napster itself would be reincarnated many times, including most recently as a legitimate music service that was purchased by Best Buy, its mark as the first widely-known file sharing network, and first such closure, remains with us today.
Almost any story on this list or that took place in the 2000s can be traced back to this one incident. Its closure paved the way for the slew of file sharing services that came after it, including The Pirate Bay, as well as the new file sharing technologies that have replaced it, including bittorrent.
In many ways, this moment defined the decade.
Honorable Mentions
Really fast, here are a few stories I seriously considered for inclusion but decided against for one reason or another:
- Radiohead and Trent Reznor Give Away Music – Could be the beginning of new business models for music.
- Remote DVR Ruled Legal – Cablevision wins its fight to remotely host DVR content.
- iTunes Store Launches – Another critical business element (details on Apple iTunes Software License Agreement here).
- DRM Debacles/Death of DRM -Many stories to choose from.
- Many, Many More…
Bottom Line
The 2000s were a very busy decade for copyright news. The Web grew up a lot during the decade but copyright issues played a very critical role in many of the growing pains it encountered along the way.
My hope for the 10s is that it can be the decade where we stop the fighting and start working on solutions, where copyright holders, users and intermediaries work together to create sustainable business models for the new digital world.
Though it has been an ugly decade for the copyright wars, with the battle lines drawn, it may be easier to start negotiating and finding common ground. It’s obvious that this is an emotional issue that affects people personally and financially very deeply, that makes it all the more important we treat these issues with respect and work with one another to find good answers.
There is no magic bullet, any solution will need a combination of law, technology and business savvy to make it work, but if we are willing to work with one another, it can happen.
[thanks to johnathan bailey, aarongustafson, mecredis, matthurst, anniemole, jakobinac, jimbarter, topgold, ndeviltv, dannysullivan, and richardfx7676 via cc]
Viacom’s General Counsel Michael Fricklas Gives Lecture to Yale Law Class on DRM
Michael Fricklas, Viacom’s General Counsel, gave a lecture to a Yale Law class in which he confessed that suing people for copyright infringement felt “like terrorism.” He says that this was bad strategy on the entertainment industry’s part, as was “bad” DRM.
That’s the good part — an admission that suing customers is bad news. But lest you think that Fricklas has learned anything from this experience, consider the rest of his talk.
First, like a lot of people who got bitten on the ass by the magic DRM beans he bought a decade ago, he’s unable to resolve his cognitive dissonance around DRM. The problem isn’t DRM, he reasons, the problem is that he used the wrong DRM. He argues that there are “business models” that are enabled by DRM, and you just need to get it right.
I hear this all the time. It’s truly the mark of a magic-bean-buyer: someone who has failed to absorb the first principle of DRM, namely, “DRM is technically impossible.” There is no way that you can send someone a scrambled message, and the key to descramble the message, and then build a business on the foundational principle that no one will descramble the message except on the terms that you set.
And what’s more, the effort to preserve DRM involves laws that prohibit telling people about flaws in DRM (which doesn’t mean that the flaws won’t be discovered and shared and used to undermine DRM, of course — just because you cover your eyes, it doesn’t follow that the danger goes away). It involves laws that prohibit making products compatible with DRM without permission from the DRM maker, even if you’re doing something otherwise legal (so your customers can’t buy someone else’s music player, which means that you’re locked into that vendor who can dictate terms to you forever).
This often gets lost in the DRM discussion: we get bogged down in what the DRM “allows” and “prohibits” and forget that DRM doesn’t actually stop pirates from doing anydamnthing they want to do. And since most infringing users will “crack” the DRM by finding a copy that someone else took the DRM off of and uploaded, it doesn’t deter “casual” pirates either.
But if you’ve been buying magic beans for ten years, it’s hard to stop believing in magic beans — certainly harder than believing that you’ve just been buying the wrong beans.
And Fricklas’s wrongness doesn’t end there. He also believes in a “three strikes” approach to copyright enforcement, because it is “more proportional to the harm.” That is to say, he thinks that cutting an entire household off from the Internet (which supplies livelihood, civic engagement, publication, communications, education, and family) because one member stands accused (without conviction) of copyright infringement is less bad than merely bullying the family’s teenager out of ten or fifteen thousand dollars.
This really is the most telling part of the whole speech: to believe that issuing the digital death penalty for entire families’ information lives will somehow be less of a PR disaster than suing kids. It is the mark of a man who is so monumentally out of touch with reality that it’s easy to understand how he rose to a level of prominence and power in an industry that made history by suing 30,000 of its customers.
[thanks to james cridland and cory doctorow via cc]
How the Viacom and YouTube Lawsuits Target User Privacy
Yesterday’s top tech policy story was the copyright lawsuits filed by Viacom, the parent company of Comedy Central, MTV, and Paramount Pictures, against YouTube and its owner Google. Viacom’s complaint accuses YouTube of direct, contributory, and vicarious copyright infringement, and inducing infringement. The complaint tries to paint YouTube as a descendant of Napster and Grokster.
Viacom argues generally that YouTube should have done more to help it detect and stop infringement. Interestingly, Viacom points to the privacy features of YouTube as part of the problem, in paragraph 43 of the complaint:
In addition, YouTube is deliberately interfering with copyright owners’ ability to find infringing videos even after they are added to YouTube’s library. YouTube offers a feature that allows users to designate “friends” who are the only persons allowed to see videos they upload, preventing copyright owners from finding infringing videos with this limitation…. Thus, Plaintiffs cannot necessarily find all infringing videos to protect their rights through searching, even though that is the only avenue YouTube makes available to copyright owners. Moreover, YouTube still makes the hidden infringing videos available for viewing through YouTube features like the embed, share, and friends functions. For example, many users are sharing full-length copies of copyrighted works and stating plainly in the description “Add me as a friend to watch.”
Users have many good reasons to want to limit access to noninfringing uploaded videos, for example to make home movies available to family members but not to the general public. It would be a shame, and YouTube would be much less useful, if there were no way to limit access. Equivalently, if any copyright owner could override the limits, there would be no privacy anymore – remember that we’re all copyright owners.
Is Viacom really arguing that YouTube shouldn’t let people limit access to uploaded material? Viacom doesn’t say this directly, though it is one plausible reading of their argument. Another reading is that they think YouTube should have an extra obligation to police and/or filter material that isn’t viewable by the public.
Either way, it’s troubling to see YouTube’s privacy features used to attack the site’s legality, when we know those features have plenty of uses other than hiding infringement. Will future entrepreneurs shy away from providing private communication, out of fear that it will be used to brand them as infringers? If the courts aren’t careful, that will be one effect of Viacom’s suit.
