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In U.S. Crackdown on “Pirate” Sites, It’s Sometimes Difficult To Determine Who’s a Pirate

Late into the night at the end of November, a text message woke up Waleed A. Gad El Kareem, an open-source web developer in Alexandria, Egypt. The 31-year-old developer had set up an alert to tell him whenever his site Torrent-Finder.com was inaccessible online.

“I waited for it to come back, and it didn’t so I called [domain name provider] GoDaddy,” he recalled in an interview. “They had no idea about it.”

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Waleed A. GadElKareem says Torrent-Finder.com is one of many search-related projects he's working on

Late into the night at the end of November, a text message woke up Waleed A. Gad El Kareem, an open-source web developer in Alexandria, Eygpt. The 31-year-old developer had set up an alert to tell him whenever his site Torrent-Finder.com was inaccessible online.

“I waited for it to come back, and it didn’t so I called [domain name provider] GoDaddy,” he recalled in an interview. “They had no idea about it.”

“After a few hours of the downtime, I saw that the domain name servers were being changed,” he continued. “I thought somebody was stealing my domain. I sent a complaint to ICANN, because I didn’t know what was going on.”

The next day, El Kareem found a seizure notice in place of where the front page of his web site used to be. He says he then started to read stories in the media about the domain name seizures and realized what was going on.

TorrentFinder had been fingered as one of 82 web sites by the U.S. Department of Homeland Security’s Immigrations and Customs Department as a web site whose purpose was dedicated to infringing upon copyrights.

But El Kareem, and the operators of four other music-related web sites whose domain names have been seized, dispute their unilaterally-designated status as “pirate sites,” a designation that the federal law enforcers in the Obama administration had arrived at after perusing the sites and talking to the Motion Picture Association of America and the Recording Industry Association of America.

The dispute is newsworthy because the law enforcement initiative marks a new, emerging prophylactic approach to enforcing copyrights online. Many legal observers and internet engineers worry that the legal cross-fire between the law enforcers and the scofflaws will put many web businesses on financial life-support.

It’s also an issue worth examining because Congress is likely to re-consider legislation next year that would reinforce and expand the reach of these kind of domain name crackdowns.

The Senate Judiciary Committee has already fast-tracked the legislation and approved it during the lame-duck session of congress. Sen. Ron Wyden, D-Oregon, has threatened to block it if it reached the senate floor.

In its affidavit for a seizure warrant, the U.S. Attorney’s office for the central district of California mentioned several searches its investigator performed for torrents of copyrighted movies through Torrent-Finder.com as evidence of the web site’s culpability under U.S. law.

The investigator found links to other sites that served as links to torrents for illegal free movies online. He also found torrents of camcorded versions of the movie “The Town.”

A search on Torrent-Finder.info, the alternative site that El Kareem quickly established a few hours after it became apparent that he wasn’t going to get the dot com domain back anytime soon, shows that torrents of Hollywood movies are still out there thriving on several people’s computers.

El Kareem freely admits that he makes his living income through the banner ads that appear on the web site: Nevertheless he is outraged by the seizure because he says that Torrent-Finder was part of an ongoing experiment in aggregated search he was conducting. The site can be used for many different kinds of searches, and the fact that people can find pirated content through Torrent-Finder doesn’t make the site one that is dedicated to piracy, he argues.

While many of the other 82 domains were sites selling counterfeit goods in overseas countries, Torrent-Finder.com is a search engine project that enables people to find torrents of movies, music, software and any other kind of media. El Kareem’s lawyer says that many people use the site to exchange files of large open source programs. The operators of the other music sites say that they were leaking pre-release music as a way of promoting artists’ new tunes.

David Snead, El Kareem’s lawyer in the United States, says that rights holders should use the take-down provisions of the Digital Millennium Copyright Act, which involves the notification of a web site’s owner of the infringing material, and which provides for a back-and-forth between the rights-holder and the web site operator about the allegedly infringing material.

Instead, under this process, and the more draconian domain-name blocking regime envisaged under the Combating Online Infringement and Counterfeits Act under consideration in congress, law enforcers get to decide which domain names get to be blocked on a temporary basis and the target has to fight the designation in court.

“Ultimately what I think we’re talking about is whether we should trust the government to be able to shoot first and ask questions later when it comes to technology they likely do not have the capabilities to understand,” said Christian Dawson, chief operating officer of ServInt, a U.S. web hosting company.

But Chun T. Wright, a Washington, D.C. attorney who has spent a lot of time hunting down intellectual property pirates online, says that the DMCA only applies to the United States, which is a problem since many of the pirates and their hosting companies are located outside of the U.S. In addition, the DMCA isn’t effective against file-sharing systems, she argues.

“Rightsholders and the government  have been playing whack-a-mole with their hands tied behind their back trying to shut down these rogue sites, and it’s not working,” she said.

The cases in point are the web sites whose domains ICE had seized on CyberMonday. Many of them, including Torrent Finder, have moved to other top level domains. Torrent-Finder has moved to Torrent-Finder.info, which is a domain administered by  Afilias in Ireland, and thus out of the reach of U.S. law enforcement authorities — for now.
Affidavit in Our Sites SACLA (1)

Sarah Lai Stirland was Contributing Editor for BroadbandBreakfast.com until April 2011. She has covered business, finance and legal affairs, telecommunications and tech policy for 15 years from New York, Washington and San Francisco. She has written for Red Herring, National Journal's Technology Daily, Portfolio.com and Wired.com. She's a native of London and Hong Kong, and is currently based in San Francisco.

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Copyright

Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights

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Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright

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Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee

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Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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