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U.S. Movie Studios Launch Lawsuit Against Online Media Locker Service

LOS ANGELES, February 8, 2011 — Five of the major motion picture studios in the United States on Tuesday launched the next phase of their industry’s ongoing campaign against online piracy by filing what will be a closely-watched copyright infringement lawsuit against Hotfile.com, a so-called cyberlocker service that allows its users to share and store large media files on its servers.

Broadband Breakfast Staff

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LOS ANGELES, February 8, 2011 — Five of the major motion picture studios in the United States on Tuesday launched the next phase of their industry’s ongoing campaign against online piracy by filing what will be a closely-watched copyright infringement lawsuit against Hotfile.com, a so-called cyberlocker service that allows its users to share and store large media files on its servers.

The lawsuit, filed in federal district court in the Southern District of Florida, seeks to basically shut the service down by hitting it with crippling damages of the maximum allowable amount of $150,000 per work infringed, as well as attorneys’ fees.

The studios — Columbia Pictures, Disney, Twentieth Centruy Fox, Universal City Studios, and Warner Brothers — charge that Hotfile’s business model is to goad people to upload as much copyrighted content as possible and then to make money off of downloaders by offering them memberships that would provide them faster downloads of the copyrighted material.

Uploaders are paid, and their compensation increases along with the number of downloads of the content they provided the site. The studios also say that Hotfile.com pays other sites to host links to all of this illegal content.

The site’s operator, Anton Titov of Florida, is responsible for the massive piracy of the studios’ copyrighted content because he has taken no action to disable or discourage users’ infringing activities, the studios charge.

Thus he and his company are directly infringing upon the studios’ copyrights by hosting the content, as well as inducing Hotfile’s users to infringe upon their copyrighted works. The studios are also charging Titov with contributory and vicarious infringement.

“In less than two years Hotfile has become one of the 100 most trafficked sites in the world.  That is a direct result of the massive digital theft that Hotfile promotes.  Everyday Hotfile is responsible for the theft of thousands of MPAA member companies’ movies and TV shows – including movies still playing in theaters – many of which are stolen repeatedly, thousands of times a day, every single day,” said Daniel Mandil, general counsel & chief content protection officer for the MPAA in a statement. “The theft taking place on Hotfile is unmistakable.  Their files are indeed ‘hot,’ as in ‘stolen.’ It’s wrong and it must stop.”

Hotfile.com is just one of a whole class of emerging web sites called cyberlockers that make the distribution of large media files easier and faster online. Cyberlockers are growing in popularity as an alternative to BitTorrent, another method of sharing large media files online that uses a specific protocol and requires users to download a program.

Unlike the cyberlocker service, the BitTorrent protocol transfers bits of files between peers or users, and the rate at which file transfers happen is correlated with how many people there are sharing the content — the more the better and faster the transfers.

A recent report commissioned by NBC Universal conducted by Envisional asserts that just over five percent of global internet traffic can be attributed to unauthorized transfers of content to and from cyberlockers.

Envisional says that BitTorrent is still the favorite method for illegally sharing files, making up almost a quarter of global internet traffic.  Its report shows that piracy of movies and television content is worst in areas of the world where access to legitimate forms of online content is limited.

The studios acknowledged in their complaint that there are legitimate uses for such services online, but said that Hotfile isn’t one of them because its promotional materials incentivize people to upload content that other people will want to download.

A search on filestube.com, one of the search sites that enables users to find access to the files on the cyberlocker services, turns up links to lots of popular television shows and movies.

The studios’ complaint contains dozens of examples of movies and television shows that are available without authorization on the site.

And Envisional’s recent analysis of a random sample of 2,000 cyberlocker links found that more than 90 percent of the linked-to material was copyrighted.

An e-mail to Hotfile.com wasn’t returned, but the site clearly displays its intention to abide by US copyright law with a prominent notice on its landing page that users are required to read and agree with before they upload any files.

Large tech firms such as Google will be watching the legal developments in this case closely since they’ve bet their future on providing consumers with services, information and entertainment in “the cloud.”

The standards, if any, developed in this case could establish the boundaries of acceptable business practices by companies offering such services.

An indication of Google’s concern over this subject area has manifested itself through another lawsuit over a music cyberlocker service called MP3Tunes, which allows users to upload, store and access their music in personal lockers in the cloud. The service has been sued by EMI for copyright infringement on behalf of its users.

Mp3tunes argues that it shouldn’t be liable for copyright infringement because it abides by the take-down rules as defined by the Digital Millennium Copyright Act. The law provides intermediaries with a “safe harbor” and shields them from liability if they respond to take-down requests promptly.

Google has filed a friend-of-the-court brief siding with MP3Tunes.com.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

Copyright

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

Derek Shumway

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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

Jericho Casper

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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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Copyright

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

Elijah Labby

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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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