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Re: Steal This Show S01E03: Solving Piracy?

Michael Masnick — Sun, 20 Dec 2015 10:22:33 -0000

First a disclaimer: David Newhoff is not a fan of anything I have to say and has written multiple long screeds attacking my ideas. So it's possible that the following may be seen as biased.

But... while this podcast involved an interesting overall discussion, Newhoff's explanation of the Cox/BMG case was woefully inaccurate and misleading, such that that whole discussion only served to misinform any listener. Newhoff suggested two things, both of which were incorrect (or at least misleading). First, that it's well established that internet access providers need to have a repeat infringer termination policy, and that the "problem" with Cox's is that it's a "14 strike" policy. Neither of those are entirely accurate.

The first issue -- which both of the others on the podcast simply accept as true -- is actually the crux of the case. The DMCA *does* require a repeat infringer termination policy for safe harbors, *but* almost all observers have believed that this requirement (512(i)) only applied to service providers who actually *hosted* material (specifically those described in 512(c) as "information residing on systems or networks at the direction of users.") There's a separate section of the DMCA for *access* providers, in 512(a) "transitory digital network communications."

So the real issue is whether 512(i) applies to 512(a). Newhoff states blankly that it does, but that's very much in dispute. And, tellingly, NO OTHER internet access provider has ANY such policy. Newhoff falsely compares the "six strikes" policy that most other major ISPs have to Cox's, comparing it to Cox's "14 strikes" police. But that's wrong as well. Under the six strikes policy -- which all involved, including the RIAA admitted was VOLUNTARY and not mandated by law (i.e., not because of the DMCA), termination never happens. They have mitigation events, such as slowing down your account or limiting your browsing. TorrentFreak, of course, has covered all of these in detail. But none of them involve a termination at all. Newhoff's claim that others have 6 strikes and Cox has 14 is misleading.

So, in many ways, Cox has the most stringent policy in that it will actually terminate some accounts. Yes, it's after 14 strikes, but no other ISP has any such policy at all. Once you pass six strikes, nothing happens.

It would have been much more interesting if there had been someone knowledgeable about the actual issues of the case to push back on Newhoff's misleading claims. He may turn out to be right that the law, as interpreted by the courts eventually means that all ISPs need a termination policy, but to breeze past that as if that's a known quantity is wrong.

Second, the issue the judge had with Cox's termination policy wasn't so much the 14 strikes, but rather the (rather damning) emails from Cox employees about how once they DID terminate users (again, they're the only company that does this), they would let them call back to sign up for a new account, erasing all the strikes. Of course, Cox didn't tell users this, but users could discover it if they called themselves and tried to sign up for a new account. It was that point that really set the judge off and said the policy was invalid.

Of course, the judge was so focused on this so called "bad behavior" that it clouded the issue of whether or not 512(i) even applies to access providers, rather than those who store content (hosting firms, youtube, etc.).

Re: Little Pork Chop coming back

Michael Masnick — Fri, 16 Jan 2015 10:02:53 -0000

Hey Dave, can I get whitelisted? Thanks so much... https://twitter.com/mmasnick

Re: Tumblr's Recently Fired Editorial Team Just Missed Out on a $371,000 Payday

Michael Masnick — Wed, 22 May 2013 04:18:24 -0000

This story doesn't make any sense. It notes that the editors were employed for over a year, which almost certainly means they had shares vested (1 year cliff is standard), and then it IGNORES those vested shares. Once the shares are vested, if they leave the company they get to buy those options. Did the fired editors buy their options? That seems like a likely bet, unless they thought Tumblr was going to collapse. So the editors still likely got their options and thus the payout as well.

Just because they no longer work there it doesn't mean their options disappeared. The only thing they would have likely "lost" is the options from the day they were fired until Monday when the deal was made. So, they lost one month's worth of vesting. Big whoop.

Seems odd that the author assumes that they lost all those vested options.

Re: So far, cellphone unlocking bills do little to nothing to fix the real problem of anti-circumvention restrictions

Michael Masnick — Tue, 12 Mar 2013 19:41:00 -0000

Oh lord, you made me read a Cleland post and I know I shouldn't do that. But, really, that one takes the cake for piling logical fallacy upon logical fallacy. If only it could be marked up with https://yourlogicalfallacyi... to warn others. My favorite is his claim that people who say if you can't open it you don't own it ALSO mean if you open it you own it. I mean, seriously? Just because b is one condition of a does not automatically mean that b automatically implies a. Didn't we all learn these things in junior high?

And, yes, to Jerry's larger point, I've seen no "hidden agenda" about getting rid of 1201. It's a big part of the very clear agenda. Lots of us have been fighting anti-circumvention clauses for years (and not just in the US) not because we want to end all enforcement (strawman!), but because anti-circumvention has tremendous unintended consequences that creates harm and slows down innovation like (for example) making cell phone unlocking illegal.

And, of course, what Cleland ignores is that you can have copyright enforcement without digital locks provisions: because it's already there. If you break DRM to infringe on something, you've already violated a section 106 right under copyright law. If you HAVE NOT violated a Section 106 right, then... what's the problem and how is it infringement?

That's the problem with 1201. It makes it "infringement" to do something that DOES NOT actually infringe on a single 106 right.

Re: Can a news org publish someone’s Twitter photo?

Michael Masnick — Fri, 15 Feb 2013 02:20:19 -0000

I think this piece could have been helped if you spoke to other copyright lawyers, who could explain why this sort of use weighs VERY heavily towards fair use. I understand that there is no black and white division for fair use, but taking the attitude Poynter takes is how fair use dies -- and that's a shame. Fair use is extremely important for journalism, and when journalism's leaders think that exercising basic fair use rights is the equivalent of needing to "establish precedent" is deeply troubling. I can understand finding a "mutually agreeable" situation with a source, but Buhl was the subject of the story, not the source. And that's the problem which isn't even addressed here.

Re: Intellectual Ventures: Why the Patent System Needs Intermediaries Like Us

Michael Masnick — Tue, 18 Dec 2012 10:34:01 -0000

Jeff, you're even being too kind in saying that IV is just "gaming a broken regulatory system." Most people would call it exploiting the system in order to do a legal shakedown, combined with arbitraging struggling, but over enthusiastic university tech transfer offices in need of a "win." Look at where IV got most of its patents and the story gets worse and worse. He complains about the names people call IV? Most people don't even understand half of the damage that IV does to the innovation economy. The company is a giant deadweight loss to society.

Re: Rebuttal: ‘The Patent System Works Fine Because… Hey Look Over There!’

Michael Masnick — Tue, 13 Nov 2012 21:24:48 -0000

Vic likes to do hit and run comments on pretty much everything I do about patents, so I'll just correct an obvious falsehood:

" Masnick does not believe inventors should be paid for their creative efforts but when it comes to Copyrights, why that's a different story and Masnick copyrights everything he does and then some."

Actually, I do believe that people should be paid, but it should be through selling something that someone wants and needs that benefits both parties -- not through legal threats and legal rulings.

And, the claim that I "copyright everything and then some" is 100% false and shows someone who does not actually read anything that I write other than a few patent stories. I have declared all of Techdirt's contents to be in the public domain and explicitly disavow the copyrights on it.

Also, I'd suggest that anyone curious about what actually happened in Switzerland and the Netherlands go out and read Eric Schiff's research which shows the exact opposite of what Kley claims here.

Re: Rebuttal: ‘The Patent System Works Fine Because… Hey Look Over There!’

Michael Masnick — Tue, 13 Nov 2012 19:04:06 -0000

Ben: I had nothing to do with the image. Wired apparently chose it. They did not tell me about it.

As for the cut & paste (repeated frequently by you on my blog), (1) I am not a reporter, nor have I claimed to be one (2) how the hell is it "unreported" when the information about the companies we have worked with is directly visible on my site and (3) we have never, ever done any work on patent issues for the companies you named, and we actually tend to disagree with many of the companies we work with concerning their patent policies.

Hell, even that little paragraph is unintentionally hilarious as you NAME IBM as one of the companies that we have done work for as an example of why I would be biased *TOWARDS* IBM. Yet this entire article is bashing IBM and its IP council.

Re: Rebuttal: ‘The Patent System Works Fine Because… Hey Look Over There!’

Michael Masnick — Tue, 13 Nov 2012 19:00:49 -0000

Sean: That assumes that "GDP = the economy." Many people disagree with that notion. GDP as a metric is being considered less and less relevant...

Re: Rebuttal: ‘The Patent System Works Fine Because… Hey Look Over There!’

Michael Masnick — Tue, 13 Nov 2012 18:59:15 -0000

For what it's worth, I wrote this for my blog, and not for Wired. Wired asked to reprint it and my specific response was that it was NOT written in the right tone for Wired, but they wanted to run it anyway...

Re: Do It for the Beer Money: Turning Your Car Into a Rolling Billboard

Michael Masnick — Fri, 02 Nov 2012 13:47:56 -0000

A bunch of companies have tried this in the past. http://www.time.com/time/ma... An article from 12 years ago talking about the same thing -- and noting there were already a few players in the space.

Re: Google Fixes Marissa Mayer’s Awkward Ratings System

Michael Masnick — Thu, 11 Oct 2012 21:05:42 -0000

Can someone explain what this story has to do with Marissa Mayer? Why is her name in the title? Why is there a picture of her? The story is about Google -- a company she has not worked at for months -- changing something about Zagat. Yes, Mayer may have driven the acquisition... but huh? What if part of her plan in buying Zagat was to change the rating system? What if it wasn't? Either way, after a company buys another, are they not allowed to change a feature that confused some people? And if they do that somehow reflects poorly on the person who bought it, but who no longer works at the company? I guess I don't see how this story has anything to do with Mayer at all.

Re: On Copyright and Business Models: Why ivi Deserved to Be Shut Down

Michael Masnick — Tue, 25 Sep 2012 02:09:20 -0000

Hi Ryan... you did need to post this the day before I headed out of town for a "partial" vacation, didn't you? I will try to get back to it at some other point, but I want to correct one blatant factual error regarding Techdirt. You claim: "That’s why I can read all the Techdirt articles I desire, but only on Techdirt’s website.
If copyright protection excluded content distributed freely to the
general public, creators of popular ad-supported content would soon find
others reproducing their content with fewer ads."

This is a common line of argument against us, and I've responded to it many times. Our content is public domain, it is freely copyable, and many blogs do copy it. And you know what? It doesn't hurt our traffic at all. I'd argue it likely helps it, because people come to Techdirt because we have that content first, they know we're the originator, and there's also value in the community that comments there. None of that has anything to do with copyright.

So, you can read Techdirt content on lots of other websites that copy it if you want. I'd like to think that we're moderately "popular" and we're "ad-supported," but if someone else reproduced our content with fewer ads or no ads at all, I doubt it would attract many people at all.

Re: Times says it should have credited Techdirt for breaking news about music website

Michael Masnick — Wed, 14 Dec 2011 12:50:02 -0000

To be clear: I was not saying that I deserved or needed credit. My point was merely to point out that the NYT has a history of whining about this exact thing. I thought it was amusing that they were then caught doing the same thing. Lots of other sites reported on the news -- some credited Techdirt and some didn't. I have no problem with either. The point was about the NYT's previously stated position, complaining about blogs doing the same kind of thing.

That said, I appreciate the correction and the apology.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Mon, 28 Nov 2011 01:05:40 -0000

"Michael, has anyone ever told you that your job description has changed, and you now have to do something you are not good at, and that you intensely dislike doing if you wish to be paid for the work you have already performed and for which according to the law and your contracts you are entitled to be paid?"

Yes. Welcome to real life, Rowena. Markets change. People change. I changed. Buggy whip makers changed. People who used to make their livings as human switchboard operators changed. Jobs change. Live with it. You don't pass laws to hold back innovation just because some people don't want their jobs to change.

As or "if you wish to be paid for work you have already performed." Most of us don't have the luxury of getting paid over and over again for something we did in the past. So, forgive me for not having much sympathy that you can't sit back and do nothing while money comes in. Sorry for suggesting you might actually have to work for a living like the rest of us.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Mon, 28 Nov 2011 01:02:53 -0000

Rowena, do not make accusations that are false. I have read it. It is you who have demonstrated throughout this discussion that you are unfamiliar with the bill, and yet you continue to comment on it as if you are knowledgeable about it. I would suggest that you cease from doing so.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Mon, 28 Nov 2011 01:01:32 -0000

Likewise, with the greatest respect, I would suggest, once again, that you LEARN WHAT THE BILL SAYS. The section referred to above is SOLELY in reference to section 201, which relates to changes to criminal copyright law for a public performance (adding a felony offense for a public performance). That has ABSOLUTELY NOTHING to do with section 103 and actions against rogue sites, the section we were discussing.

Again, with utmost respect, I suggest that you STOP SUPPORTING a bill you clearly do not understand. Using a phrase from Section 201 that has no bearing on section 103 does not help your case.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sun, 27 Nov 2011 17:12:08 -0000

You keep saying this, despite the fact I have pointed out the direct language in the bill that shows this is not true, and the bill DOES apply to YouTube, Twitter, eBay and Facebook.

"It does target sites that are “dedicated to theft of U.S. property” –
namely, sites that are “primarily designed or operated,” have “only
limited purpose or use other than” infringement, or are “marketed” for
infringement. In other words: rogue websites."
The text notes that to be "dedicated to theft of US property" your primary function need only "enable or facilitate" infringement. All of the sites listed above do that. Rowena, willfully ignoring what you have already been told in a blind desire to pass a bad bill is not smart.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sun, 27 Nov 2011 17:10:19 -0000

"The Coalition Against Counterfeiting and Piracy" is a front group for the US Chamber of Commerce, the world's largest lobbying organization, which has been hired by the MPAA to be the main lobbyists in charge of passing SOPA and PIPA. Look up the US Chamber of Commerce sometime. Is this a group you wish to be associated with?

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sun, 27 Nov 2011 17:08:16 -0000

Oh my goodness! I follow a well-respected copyright law professor among hundreds of people I follow on Twitter. What does that mean?

And someone described me as "copyleftist," a term whose meaning I don't know. Again, what does that have to do with anything. Should I take some supposed pejorative that someone has used to describe you and bring it up? What good would that do?

And yes, I have argued against COICA, as well as PROTECT IP and SOPA because *THEY ARE BAD BILLS* that will do SIGNIFICANT harm and won't help you or your friends. I have explained why here repeatedly. But it appears engaging you in discussion is not a particularly fruitful endeavor. I point out the problems of the bill and you ignore them. This is, to me, quite stunning.

One final suggestion before I stop following this thread: seriously, you might want to rethink your support of these bills. They will do more harm than good FOR YOU. They will kill off the platforms YOU NEED to succeed. You don't want that.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sun, 27 Nov 2011 16:58:44 -0000

The help that the authors your discuss "need" has nothing to do with infringement. The biggest problem they're facing is not infringement, but obscurity. You know what infringement does? It helps them get more widely known. What they "need" is to learn how to use that free marketing to their advantage

As for your claim that there is "plenty of precedent" of passing bad bills and tweaking them later, that's laughable. Congress is very bad at going back and fixing bad legislation until WAY way later. Just look at the current fight over ECPA -- a law that is 20 years out of date and won't get fixed for some time.

If you can't take the time to get the bill right ahead of time, it's CRAZY to suggest just passing it anyway.

Finally, Scribd's monitoring system is great. As is YouTube's ContentID system. Of couse, SOPA specifically states that nothing in the bill requires such monitoring. So... um... not sure why you feel the need to point that out in relation to SOPA.

More importantly, the fact that both YouTube and Scribd implemented some systems ANYWAY, without a legal requirement should give you pause on rushing in to regulation. The MARKET has made it valuable for YouTube and Scribd to set up such systems, because it makes content creators happy. So, let the market do its wonders, rather than killing off the next Scribd and the next YouTube before they can even afford to build such a system.

And good actosr are NOT at a competitive disadvantage to pirates. You seem to assume people are complete imbeciles, and don't want to support artists they like. Nothing is further from the truth. People PREFER to support artists they like, and thus sites that are legit and have good reputations are more likely to get business. Do you really think that "pirate sites" get more traffic than YouTube or Scribd?

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sun, 27 Nov 2011 16:50:02 -0000

So you concede all my other examples? That YouTube, Facebook and eBay are all "dedicated to theft" under this law? Good to know. And you're okay with that? Really?
"I am sorry. I thought that the primary purpose of Twitter was to share status updates in 140 characters or fewer. The majority of Twitter users tell their friends what they are doing, or "share" links to interesting news stories."

You are correct, that the primary purpose of Twitter is to share status updates. But, that "enables or facilitates" infringement. If you have any doubt of that, all you need to know is that Twitter receives the second most DMCA takedown notices (Google is first). Clearly, Twitter's main purpose "enables or facilitates" infringement -- and that's all you need under SOPA. Twitter is clearly dedicated to theft of US property under this law.

I find that problematic. You don't?

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sun, 27 Nov 2011 16:46:15 -0000

It's not a "fact sheet" when it comes from the primary lobbyist group in charge of getting this law approved. It's called propaganda.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sat, 26 Nov 2011 17:21:57 -0000

Send, if I came home and found myself robbed, I wouldn't have that stuff any more.

If someone makes a copy of everything in my house and uses it themselves, what difference does that make to me?

And, as I made clear to Rowena, I will make clear to you: I am a writer. I make my entire living off of my ability to write. My words are pirated daily. I don't bother to look very frequently, but when I do, I see my works all over the internet often entirely without attribution.

And I don't care. What difference does it make? Those sites tends not to get much traffic, and as long as my words are being spread, sooner or later most people who care will come back and figure out that I wrote them. And then maybe they'll give me money eventually. Or maybe not. The responsbility is mine to convince them to give me money. I've been pretty successful in doing that, in part because I tell them I don't care if they get my works from elsewhere. People trust me.

The people who fans seem to have a lot of trouble trusting are those who freak out at every unauthorized use.

What's funny is that some of my biggest fans (by far) are those who first came across my work elsewhere. They were driven to find out who wrote them, and from there they became committed fans who are happy to support me. That's pretty fantastic. That wouldn't have happened if these other sites didn't distribute my works.

Re: Legal Analysis of SOPA / PROTECT-IP: No, It's Not Censorship

Michael Masnick — Sat, 26 Nov 2011 17:16:13 -0000

Rowena, I find that incredibly offensive. I've dedicated a large portion of my life, my time and my resources towards helping artists thrive. For you to claim I "have no respect" for artists is downright insulting. I work with tons of artists.

Look I am a content creator myself. I live by my words. And my words are pirated. Daily. But rather than whine about it, I made a better business model that lets me profit.

I continue to spend countless hours helping other creators do the same. I've set up an entire platform whose sole purpose is to help creators better monetize their creations and build bigger fanbases.

For you to then claim that I have no respect for artists? Insulting and offensive. And patently not true.

And, no, my suggestion is not to add "vulgar" advertising to your works, though some have found that advertising works well. But in no way have I ever suggested that the best solution for everyone, or even most artists.

If you can't understand what I say, can't understand the bill we're debating, and can't understand basic economics or business models, might I suggest you take some time off and do some studying?

In the meantime, though, I think you owe me a rather large apology.