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Karyn Temple Claggett is the new Associate Register of Copyright and Director of Policy & International Affairs for the Copyright Office. Her previous gig was litigating for the RIAA, shutting down technologies like Grokster, which had widespread, non-infringing uses (the standard in the law since the Betamax Supreme Court decision in 1982).
Last night the news came out that the US Copyright Office had now named Karyn Temple Claggett as the Associate Register of Copyright and Director of Policy & International Affairs. While Temple Claggett has actually been at the Copyright Office for a little while as Senior Counsel for Policy and International Affairs, not too long ago she was a hotshot litigator for... the RIAA. In fact, an old bio of hers, from when she was at the RIAA (as VP, Litigation and Legal Affairs), notes that she was instrumental in their ever-present legal campaign against pretty much any innovative technology that comes along:
While at the RIAA, Ms. Temple-Claggett has worked on some of the most high-profile copyright cases brought by copyright owners in recent years, including the Supreme Court Grokster litigation, as well as litigation against LimeWire, XM Satellite Radio and Usenet.com
Former RIAA VP Named 2nd In Command Of Copyright Office[Mike Masnick/Techdirt]
The UK Pirate Party abandoned its fight against the BPI -- Britain's answer to the RIAA -- over its proxy for reaching The Pirate Bay, which is blocked by court order in the UK. The Party's executive had been personally threatened with legal action by the BPI and couldn't afford to risk home and family fighting this fight. But other Pirate Parties took up the slack: new, unblocked Pirate Bay proxies have been established by Pirate Party Luxembourg and Pirate Party Argentina:
“Due to pressure from lobbyists, politicians all over Europe are incited to expand the censorship infrastructure to prevent freedom of expression, the right to information and the free exchange of culture. With our proxy, we help to circumvent the Internet censorship of European countries,” Luxembourg Pirate Party President Sven Clement says.
The Argentinian Pirate Party is sending a similar message, and invites those who can’t access The Pirate Bay due to blockades to use their proxy.
“We wish the UK Pirate Party best of luck in their continued fight for free access to culture and knowledge. We have put up our own Pirate Bay proxy which is accessible from anywhere in the world, including the UK and other places where it has been censored.”
Judge Beryl Howell used to work for the RIAA as a lobbyist. Or perhaps she still does. How else to explain her totally bizarre courtroom appearance in a copyright troll lawsuit -- where ISPs are arguing that they shouldn't have to turn over their customer data to discredited, laughable copyright troll John Steele, who can't get a break in any of the many other courtrooms where he's trying the stunt.
Mike Masnick has a highlight reel. The tl;dr is that Howell thinks that ISPs should bear responsibility for figuring out how to stop piracy on their networks (in the same breath in which she admits that the law says the opposite), and because they haven't taken this step, their customers have no right to privacy. Then she cites a GAO report on piracy (which actually says that all the RIAA's and MPAA's piracy numbers are total bullshit) and says it proves that piracy is a problem.
But apparently copyright trolls have found a friend in Judge Howell, who not only is welcoming them with open arms, but seems to be using these trolling cases to further the goals of her former employer. She's released her decision on the motion to quash the subpoenas, and it's basically a 42-page screed on the evils of infringement and how ISPs should be responsible for stopping piracy (much of which has absolutely nothing to do with the case at all). The only nod towards the other side seems to be a weak acknowledgement that "the Court recognizes that other Judges on this Court have reached different conclusions with respect to the legal questions posed by the ISPs" and thus she's agreed to stay her decision until the appeals court weighs in.
But she makes sure to get her arguments in for the appeals court to read, and it certainly feels like she reverted back to "lobbyist" mode, rather than "impartial judge."
She kicks off the polemic with a grand history of the DMCA, and how the task force that was created to write the DMCA originally wanted to pin liability on ISPs for actions done by their users. And while she admits that eventually the DMCA did include such liability protection, it seems clear she would have preferred it the other way. She then highlights the important court decisions from a decade ago, against the RIAA and in favor of Verizon and Charter, that ruled that the RIAA could not demand ISPs identify users without actually filing a lawsuit against them first. This, of course, was a basic recognition of basic privacy rights, and the fact that if you are going to expose someone's private info, you ought to at least file a lawsuit against them first. But, in the world of Judge Howell, apparently this was a bad decision. She approvingly cites the dissent in one of the key cases, claiming this somehow "unraveled" the balance struck in the DMCA. Nothing, of course, is further from the truth. That's a total rewrite of reality.
A post by Slashdot user Dangerous_Minds summarizes a series ZeroPaid's Drew Wilson, who has been examining 20 file-sharing studies from the decade-plus-long filesharing wars. Time and again, the studies show that the effect on markets is marginal, and that the big entertainment companies are opposed to file-sharing a means of suppressing competition and innovation:
While most writers would simply criticize the study and move on, Wilson took it a step further and looked in to what file-sharing studies have really been saying throughout the years. What he found was an impressive 19 of 20 studies not getting any coverage. He launched a large series detailing what these studies have to say on file-sharing. The first study suggests that file-sharing litigation was a failure. The second study said that p2p has no effect on music sales. The third study found that the RIAA suppresses innovation. The fourth study says that the MPAA has simply been trying to preserve its oligopoly. The fifth study says that even when one uses the methodology of one download means one lost sale, the losses amount to less than $2 per album. The studies, so far, are being posted on a daily basis and are certainly worth the read."
Mel from Dajaz1.com -- the hiphop blog that was seized for a year by the US government on the basis of a false and unsubstantiated copyright claim from the RIAA -- has posted the site's lawyer's memo, officially calling out the US government for its illegal participation in the RIAA's sloppy shakedown. Fenwick and West's Andrew P Bridges doesn't mince words, either:
The owner of Dajaz1.com appreciates the fact that the United States Government, on studying the matter further with all the information the RIAA could furnish, determined that there was in fact no probable cause to seek a forfeiture of the domain it had seized and held for a year.
That exoneration, however, did not remedy the harms caused by a full year of censorship and secret proceedings — a form of “digital Guantanamo” — that knocked out an important and popular blog devoted to hip hop music and has nearly killed it.
The original seizure was unjustified. The delay was unjustified. The secrecy in extensions of the forfeiture deadlines was unjustified.
Five details are notable here.
First, the seizure occurred pursuant to language the PRO-IP Act authorizing seizures of property used in connection with the making of, or trafficking in, “articles” in violation of copyright law. In that context, “articles” are physical items. The law does not authorize seizure of domains that link to other sites. So from the beginning this seizure was entirely legally unjustified, no matter what the allegations about infringement...
Second, seizing a blog for linking to four songs, even allegedly infringing ones, is equivalent to seizing the printing press of the New York Times because the newspaper, in its concert calendar, refers readers to four concerts where the promoters of those concerts have failed to pay ASCAP for the performance licenses.
Third, RIAA’s grand and sweeping attacks on dajaz1.com suggest that RIAA’s powers of demonization far exceed its ability to substantiate its malicious statements with specific and credible facts.
Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning.
Fifth, when discussing the secret extensions with the U.S. Attorney’s office in Los Angeles, I repeatedly asked the government attorney to inform the court that my client opposed any further extensions and asked for an opportunity to be heard. Not once did the government reveal those requests or positions to the court. The government should be embarrassed for keeping that information from the court.
This entire episode shows that neither the government nor the recording industry deserves any additional powers with new so-called “antipiracy” legislation, especially in the context where copyright law has been expanded and new anti-piracy remedies have been crafted ***16 times*** since 1982. This episode shows that the copyright establishment and the government are very much the “rogues” that deserve to be reined in.
Cary Sherman, CEO of the Recording Industry Association of America, has reminded the nation that at his instigation, the largest ISPs in the USA are set to disconnect their customers, and their customers' families, if the companies that Sherman represents makes a series of unsubstantiated accusations of copyright infringement against them. The ISPs came to the agreement after pressure from the Obama administration. This "five strikes" rule is the same system that has been decried around the world -- including in the EC and the UN -- as being a gross violation of human rights.
Sherman's role as Witchfinder General for the nation's Internet access kicks off on July 12. After that, if you get on his bad side, he can cost your children their ability to complete their education, he can cost you your job (if you are part of the growing proportion of people whose livelihood depends on the Internet), cut you off from civic and political engagement, lock you away from online access to your bank account and information about consumer rights, and, if you live remotely from your family, he can cost you your ability to stay in touch with them.
Oh, and if you have VOIP for your home phone service, Sherman will take away your 911 access too. Because burning to death is only too good a fate for people accused, without proof, of copyright infringement.
But of course, Sherman represents a sober-sided and cautious industry, the sort of people who claim that the Internet has cost them more jobs than they ever created and that an iPod's worth of songs is worth $8 billion, so they'll never abuse this power.
Thanks, ISPs, for capitulating to some of the worst companies in the world. Thanks, Obama administration, for turning America's attorney general's office into a revolving door career opportunity for entertainment industry lawyers. And thanks, RIAA, for making the case that your companies are too dangerous to peacefully co-exist with the Internet. SOPA was just the beginning, suckers.
Here's Greg Sandoval on CNet:
"Each ISP has to develop their infrastructure for automating the system," Sherman said. They need this "for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."
The program, commonly referred to as "graduated response," requires that ISPs send out one or two educational notices to those customers who are accused of downloading copyrighted content illegally. If the customer doesn't stop, the ISP is then asked to send out "confirmation notices" asking that they confirm they have received notice.
At that time, the accused customers will also be informed of the risks they incur if they don't stop pirating material. If the customer is flagged for pirating again, the ISP can then ratchet up the pressure. Participating ISPs can choose from a list of penalties, or what the RIAA calls "mitigation measures," which include throttling down the customer's connection speed and suspending Web access until the subscriber agrees to stop pirating.
Megaupload founder Kim Dotcom, a German national formerly known as Kim Schmitz, is seen at court in Auckland, New Zealand in this still image taken from video shot on January 23, 2012. The file-sharing website founder was ordered to be held in custody by a New Zealand court on Monday, as he denied charges of internet piracy and money laundering and said authorities were trying to portray the most negative picture of him. (REUTERS/TV3 via Reuters Tv)
Google claims that Universal had no basis for removing the "Mega Song" video posted in support of the MegaUpload service (which Universal is trying to drive off the Internet). Earlier this week, a court filing from Universal suggested that the company had negotiated the right to remove videos it doesn't own from YouTube as part of a private agreement with Google.
“Our partners do not have the right to take down videos from YT unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it,” Google-owned YouTube said...
Universal said Google’s private system doesn’t count as an official takedown notice under the Digital Millennium Copyright Act, and thus it was immune from legal liability. It’s a position that Ira Rothken, Megaupload’s attorney, said was preposterous.
The saga of Universal Music's war on the Mega Song (a song and video recorded by several major artists in support of the online service MegaUpload, which Universal is trying to have censored in the USA through its support of the Stop Online Piracy Act) just got weirder. Many of us were baffled that Universal kept telling YouTube to take down this video, even though it was clear they didn't hold a copyright to it -- a fact reinforced by artists like will.i.am, who insisted that he hadn't authorized Universal to send the takedown notice.
Now, a court filing in the matter from Universal claims that the takedown wasn't issued because Universal claims a copyright in the Mega Song, but rather, they claim that they have a private contract with Google giving them the power to take down videos they dislike, regardless of whether they are the rightsholder.
Your letter could be read to suggest that UMG's rights to use the YouTube "Content Management System" with respect to certain user-posted videos are limited to instances in which UMG asserts a claim that a user-posted video contains material that infringes a UMG copyright. As you know, UMG's rights in this regard are not limited to copyright infringement, as set forth more completely in the March 31, 2009 Video License Agreement for UGC Video Service Providers, including without limitation Paragraphs 1(b) and 1(g) thereof.
No one knows what Paragraphs 1(b) and (g) say (except Googlers and Universal), but the letter excerpted above implies that Universal has some sort of special deal to arbitrarily remove stuff it doesn't like from YouTube, even if that stuff is legal.
Michael Geist sez,
Universal Music Sues Insurer To Pay For Its Copyright Infringement
Earlier this year, the four primary members of the Canadian Recording Industry Association (now Music Canada) - Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada - settled the largest copyright class action lawsuit in Canadian history by agreeing to pay over $50 million to compensate for hundreds of thousands of infringing uses of sound recordings. While the record labels did not admit liability, the massive settlement spoke for itself.
The Canadian case has now settled, but Universal Music has filed its own lawsuit, this time against its insurer, who it expects to pay for the costs of the settlement. National Union Fire Insurance Company has refused, understandably taking the position that the liability reflects Universal Music's own use of copyright works for which it promised to set aside money for future payment.
“For example, there’s a set of data that shows that file sharing is actually good for artists. Not bad for artists. So maybe we shouldn’t be stopping it all the time. I don’t know,” Merrill said.Former Google CIO: LimeWire Pirates Were iTunes’ Best Customers
“Obviously, there is piracy that is quite destructive but again I think the data shows that in some cases file sharing might be okay. What we need to do is understand when is it good, when it is not good…Suing fans doesn’t feel like a winning strategy,” he concluded.