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Found 7 results

  1. Unlike the United States where 'fair use' exemptions are entrenched in law, Australia has only a limited "fair dealing" arrangement. As a result, Google's head of copyright William Patry says that Australia wouldn't be a safe place for his company to store certain data, a clear hindrance to innovation and productivity. With Fair Use Week now in full swing, people around the world are celebrating the freedom to use copyrighted content in certain contexts without fear of prosecution, thereby enabling creativity and inspiring innovation. The legal freedom offered by fair use is a cornerstone of criticism, research, teaching and news reporting, one that enables the activities of thousands of good causes and enriches the minds of millions. However, not all countries fully embrace the concept. Perhaps surprisingly, Australia is currently behind the times on this front, a point not lost on Google’s Senior Copyright Counsel, William Patry. Speaking with The Australian (paywall), Patry describes local copyright law as both arcane and not fit for purpose, while acting as a hindrance to innovation and productivity. “We think Australians are just as innovative as Americans, but the laws are different. And those laws dictate that commercially we act in a different way,” Patry told the publication. “Our search function, which is the basis of the entire company, is authorized in the US by fair use. You don’t have anything like that here.” Australia currently employs a more restrictive “fair dealing” approach, but it’s certainly possible that fair use could be introduced in the near future. Last year, Australia’s Productivity Commission released a draft report covering various aspects of the country’s intellectual property system. One of its key recommendations was to adopt fair use legislation. “The Australian Government should amend the Copyright Act 1968 to replace the current fair dealing exceptions with a broad exception for fair use,” the Commission wrote in its report. “The new exception should contain a clause outlining that the objective of the exception is to ensure Australia’s copyright system targets only those circumstances where infringement would undermine the ordinary exploitation of a work at the time of the infringement.” Unfortunately, the concept of fair use is not universally welcomed. Local anti-piracy and royalty organizations are opposing its introduction, claiming that it will undermine their ability to make money. Interestingly, broadcaster Foxtel says that the deployment of fair use would introduce “significant and unnecessary uncertainty into Australian law.” This is the exact opposite of Google’s position. The search giant says that Australia’s current exceptions fail to offer legal certainty and that a US-style fair use system would be much more predictable. “If you are a company like Google who wants to store information in the cloud, or internet searches or text and data mining, we can do that safely in the US. We can’t do it here,” Patry concludes. In its final inquiry paper, Australia’s Productivity Commission renewed its calls for the introduction of fair use, noting that in the US, where fair use is long established, “creative industries thrive.” Whether fair use will ever hit Aussie shores remains to be seen, but yet again there is a division between how technology companies and entertainment groups would like copyright law to develop. It’s a battle that’s set to continue well into the future. Source: TorrentFreak
  2. Oracle insinuates Google was “a plagiarist” that committed “classic unfair use.” Google successfully made its case to a jury last year that its use of Java APIs in Android was "fair use." A San Francisco federal jury rejected Oracle's claim that the mobile system infringed Oracle's copyrights. But Oracle isn't backing down. Late Friday, the company appealed the high-profile verdict to a federal appeals court. This is the latest stage of a seemingly never-ending legal battle over intellectual property that began in 2010. The conflict has meandered through two federal trials, in addition to multiple trips to the appellate courts and to the Supreme Court. Oracle opened its brief to the US Court of Appeals for the Federal Circuit right where it left off after losing its case. Among other things, Oracle is refusing to believe that the "fair use" defense to copyright-infringement allegations should have protected Google from having to pay billions of dollars in damages. "When a plagiarist takes the most recognizable portions of a novel and adapts them into a film, the plagiarist commits the 'classic' unfair use," Oracle said in its opening brief. Fair use is a defense to copyright infringement if certain elements are met. It's decided on a case-by-case basis. "There is no specific number of words, lines, or notes that may safely be taken without permission," according to the US Copyright Office. There are, however, at least four factors to be considered when deciding fair use: the purpose of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. Before going to the appeals court, Oracle asked US District Judge William Alsup to overturn the jury's verdict. Alsup, who presided over the second trial, ruled that Google's use cleared all four factors. Here's how we got to this point: Oracle purchased Sun Microsystems and acquired the rights to Java in 2009. Oracle then sued Google in 2010, saying that Google infringed copyrights and patents connected to Java. The case went to federal trial in 2012. Oracle initially lost. But part of its case was revived on appeal and another trial was ordered. The sole issue in the second trial, the one now being appealed, was whether Google infringed the APIs in Java, which the appeals court held were copyrighted. In May, a jury found in Google's favor after the second trial. The jury found that Google's use of the APIs was protected by "fair use"—a decision Alsup refused to disturb. Google declined to comment on the appeal. Google must file its response in the coming months. By David Kravets https://arstechnica.com/tech-policy/2017/02/oracle-refuses-to-accept-pro-google-fair-use-verdict-in-api-battle/
  3. A final inquiry report published by the Australian government's Productivity Commission is steadfastly maintaining the position that citizens should have the right to use VPNs to access geo-restricted content. The advisory body is also unmoved when it comes to delivering fair use exceptions, stating that rightsholder objections are based on flawed and "self-interested" assumptions. Earlier this year, Australia’s Productivity Commission released a draft report covering various aspects of the country’s intellectual property system. Among the Commission’s recommendations was advice to the government that it should allow citizens to access geo-blocked content in order for them to obtain the best deals on international content. “Geoblocking results in Australians paying higher prices (often for a lesser or later service) than consumers overseas,” the draft read. The report also urged the introduction of fair use provisions into local copyright law instead of the current “fair dealing” arrangement. “Australia’s copyright system has expanded over time, often with no transparent, evidence-based policy analysis demonstrating the need for, or quantum of, new rights. A new system of user rights, including the introduction of a broad, principles-based fair use exception, is needed to help address this imbalance,” the report said. During the summer, copyright holders fought back, claiming that fair use would have a negative effect on creation. Music group IFPI, for example, warned that fair use would threaten innovation and disadvantage creators while creating legal uncertainty. “Licensing, not exceptions to copyright, drives innovation. Innovation is best achieved through licensing agreements between content owners and users, including technological innovators,” IFPI said. In December, similar arguments were presented in a new campaign championed by local celebrities. But in a final inquiry report sent to the government in September and published this week, the Commission’s position remains unmoved. “Rights holders have argued against the adoption of fair use in Australia. They claim that by design, fair use is imprecise and would create significant legal uncertainty for both rightsholders and users. Initial uncertainty is not a compelling reason to eschew a fair use exception, especially if it serves to preserve poor policy outcomes,” the Commission writes. “Australia’s current exceptions are themselves subject to legal uncertainty, and evidence suggests that fair use cases, as shown in the US, are more predictable than rights holders argue. Moreover, courts routinely apply principles-based law to new cases, such as in consumer and employment law, updating case law when the circumstances warrant doing so.” The Commission says that over time, both rightsholders and users will become “increasingly comfortable” when making judgments over what is and is not fair use. In the event that Courts are called on to decide, four factors should be considered. • the purpose and character of the use • the nature of the copyright material • the amount and substantiality of the part used • the effect of the use upon the potential market for, or value of, the copyright material. “Rights holders also argued fair use would significantly reduce their incentives to create and invest in new works, holding up Canada as an example. Some have proclaimed that fair use will equate with ‘free use’, particularly by the education sector. But these concerns are ill-founded and premised on flawed (and self-interested) assumptions,” the Commission writes. “Indeed, rather than ignore the interests of rights holders, under fair use the effect on the rights holder is one of the factors to be considered. Where a use of copyright material harms a rights holder, the use is less likely to be considered fair. In the US, where fair use is long established, creative industries thrive.” Fair Use recommedation from the Commission And when it comes to allowing Australians unfettered access to legitimate content, the Commission remains equally unmoved. It notes that prompt access to reasonably priced content is vital in the fight against piracy and the government should change the law to make it clear to consumers that they have the right to obtain content from overseas, should that mean getting a better deal. “Research consistently demonstrates that timely and cost effective access to copyright-protected works is the best way for industry to reduce online copyright infringement. Therefore, in addition to implementing a new exception for fair use, the Commission is recommending making it easier for users to access legitimate copyright-protected content,” the inquiry report reads. “Studies show Australian consumers systematically pay higher prices for professional software, music, games and e-books than consumers in comparable overseas markets. While some digital savvy consumers are able to avoid these costs (such as through the use of proxy servers and Virtual Private Networks), most pay inflated prices for lower standard services and some will ultimately infringe. “The Australian Government should make clear that it is not an infringement of Australia’s copyright system for consumers to circumvent geoblocking technology and should avoid international obligations that would preclude such practices,” it adds. Anti-Geoblocking recommendation from the Commission The Intellectual Property Arrangements final inquiry report is available here. Note: An earlier version of this article referred to the Productivity Commission as an “agency”. That has been corrected to “advisory body”. Source: TorrentFreak
  4. The call for copyright reform in America have grown so loud that Congress has finally heard it. Lawmakers have ordered a slate of studies to look into how to fix what has become a broken system, and activists are cautiously optimistic that this could be the first step toward reform. The source of the fracture? The Digital Millennium Copyright Act. The DMCA was passed in 1998 as an anti-piracy statute effectively making it illegal to circumvent copy protections designed to prevent pirates from duplicating digital copyrighted works and selling or freely distributing them. It also makes it illegal to manufacture or distribute tools or techniques for circumventing copy controls. But in reality the controversial law’s effects have been much broader by allowing game developers, music and film companies and others to keep a tight control on how consumers use their copyrighted works, preventing them in some cases from making copies of their purchased products for their own use or from jailbreaking smartphones and other devices to use them in ways the manufacturers dislike. The DMCA has two problematic sections: section 1201, which deals with the circumvention of copy-protections and section 512, which allows a copyright holder to send a so-called takedown notice to web sites and others believed to be infringing a copyright. Both have been abused by companies for purposes unrelated to copyright protection, which has led civil liberties groups and others to call for reform of the law to clarify its scope. For example, companies have used it to thwart competitors and to stifle free speech and security research. How It’s Been Used to Hurt You Lexmark, the maker of laser printers, used the DMCA in 2002 to prevent third-party companies from selling refilled toner cartridges for its printers. Lexmark cartridges use authentication so that non-authenticated cartridges won’t work with its printers, but a company named Static Control Components figured out how the verification worked and produced chips to approve refilled cartridges sold by third-party companies. Lexmark sued but lost. Apple used the DMCA in 2009 to stifle the speech by members of the online forum BluWiki. When forum members engaged in a speculative discussion about ways they might unlock their iPods to sync music playlists between iPods and iPhones without having to use iTunes, Apple used the DMCA to strong-arm BluWiki into taking down the discussion. But the site pushed back, and Apple eventually backed down. A study released this year by researchers at UC Berkeley and Columbia University found that about a third of DMCA takedown notices are on shaky legal grounds, based on a sampling of some 108 million takedown notices issued over a six-month period. Bogus takedown notices fall into many categories, but one example involves a San Francisco news station that once used the DMCA to try to erase a reporting blunder. When one of its broadcasters was duped by a trickster into reading fake names of pilots allegedly involved in an air collision, the station sent YouTube DMCA takedown notices to remove videos of the blunder. Companies have also tried to use the DMCA as an anti-hacking law to sue for unauthorized computer access. In 2007, for example, Ticketmaster sued RMG Technologies under the DMCA for creating scripts that bypassed CAPTCHAS and ticket limits to rapidly purchase event tickets in bulk and re-sell them. Ticketmaster used the DMCA instead of the Computer Fraud and Abuse Act because the latter required them to show that the computer access resulted in $5,000 or more in system damages to Ticketmaster. And companies have used the DMCA to keep vehicle owners beholden to authorized dealers for service and repairs. The John Deere company, for example, has refused to unlock its proprietary tractor software to let farm owners repair their own vehicles. DMCA restrictions like this, however, don’t just make customers beholden to companies, they can also help hide wrongdoing. Last year, university researchers uncovered something fishy going on with Volkswagen emissions but couldn’t determine what exactly was causing it. Eventually, regulators learned that Volkswagen had embedded secret code in its software to help its vehicle cheat emissions tests. Critics pointed out that had researchers possessed the freedom to explore Volkswagen’s software without the threat of a DMCA violation, the code might have been uncovered sooner. How It Hurts Research The security community has long been at odds with companies that threaten legal action under the DMCA to prevent researchers from publicly disclosing software vulnerabilities they discover, particularly when those flaws are in the copy-protection mechanisms the companies craft. One of the first controversial uses of the DMCA occurred in 2001 when the FBI arrested Russian programmer Dmitry Sklyarov at the Def Con hacker conference in Las Vegas after he gave a presentation about bypassing the encryption code Adobe used for electronic books produced with Adobe Acrobat. The encryption prevented customers from making copies of their books to read on multiple systems, so Sklyarov produced a tool that bypassed this and handed out a trial version at the conference with information about how to purchase the full tool. Adobe urged the FBI to act but had to withdraw its complaint after the security community rose up in protest. That same year the Secure Digital Music Initiative (SDMI), a consortium of recording companies, consumer electronics firms and others, went after a group of researchers who discovered flaws in a digital watermarking technology the consortium developed to thwart piracy. The SDMI had actually invited hackers and researchers to try to defeat its technology, and a group of researchers led by Princeton University computer science professor Ed Felten succeeded in uncovering flaws. But when they sought to present their findings at a conference, the SDMIT threatened them with legal action under the DMCA. The researchers were eventually able to present some of their findings publicly but not until they filed a lawsuit asserting their First Amendment rights. In 2010 George Hotz, aka Geohot, devised and disclosed a hack that allowed him to play homemade games on his Sony PlayStation 3. The hack, unfortunately, also allowed anyone to play pirated games on the system, so Sony issued a forced firmware update to eliminate the flaw Hotz exploited. Hotz responded by releasing his own firmware for the system and disclosing the system’s root keys, allowing others to subvert PlayStation 3 systems in the ways he had hacked his own. Sony sued him under the DMCA and Computer Fraud and Abuse Act, though it eventually backed down after Hotz agreed not to hack any Sony products in the future or publicly discuss ways to do so. DMCA threats have also been made against researchers who discovered more serious security flaws in software. In 2002, Hewlett-Packard went after researchers with SnoSoft who found 22 vulnerabilities in Tru64, its Unix operating system. HP initially accused them of violating the DMCA after exploit code for one of the vulnerabilities appeared online. But the company backed down after HP employees and others warned then-CEO Carly Fiorina that the company’s aggressive stance would curb future vulnerability research that could help HP create more secure software. Exemptions to the Law It’s because of cases like this—any many others targeting researchers—that the security community has long sought exemptions to the DMCA that would allow them to reverse-engineer software and disclose vulnerabilities found in systems, without facing legal threats. This is a particularly critical issue with regard to devices and systems with life-threatening and public safety implications, such as the software used in vehicles and medical devices. Car owners and patients have been fighting for the right to get access to the proprietary software embedded in their vehicles and devices as well as the data these devices collect about them. The Librarian of Congress, along with the Copyright Office, is responsible for approving exemptions and over the years have done exactly this for various purposes. But the process of submitting exemptions is long and arduous and requires that those submitting exemption requests provide extensive evidence of a need. And when exemptions are granted they are generally very narrow in scope and only last for three years, after which they have to be renewed or they expire. In 2006, for example, the Librarian approved a long-sought exemption to allow smartphone owners to jailbreak their devices so they can switch carriers. That exemption got expanded in 2009 to include jailbreaking for any purpose. But in 2013, the jailbreaking exemption for smartphones expired and wasn’t renewed. Last year, in the wake of several disclosures about security problems in vehicle software, the Library of Congress approved an exemption for hacking car software for the purpose of doing good-faith security research and another exemption for the authorized owners of vehicles to bypass protections on vehicle software for diagnosis, repair or lawful modification purposes. An exemption for medical devices also allows patients to access data generated by an implanted device they own. But without reform of the DMCA, these exemptions will remain narrowly focused and have to go through the renewal process in three years. Luckily, researchers now have three years to uncover serious problems with these systems and gather evidence that such exemptions are needed. The Source
  5. Google has strengthened its stance towards wrongful DMCA notices that serve to intimidate YouTube users. Drawing a symbolic line in the sand, Google says it will cover legal costs associated with defending four videos which all use copyrighted content but are protected under 'fair use' legislation, should they be targeted by rightsholders. According to Google more than half a million hours of video are uploaded to YouTube every day. Although with ContentID the company tries, determining the copyright status of every single minute is an almost impossible task. While identifying copyrighted movies, TV shows and music are all within the company’s abilities, when used in certain ways all of those things can be legally shown on YouTube, even without copyright holders’ permission. Under U.S. law the concept is known as "fair use’ and it enables copyrighted material to be used for purposes including criticism, news reporting, teaching and research. However, some copyright holders like to contest the use of their content on YouTube no matter what the context, issuing DMCA takedown notices and landing YouTube users with a "strike’ against their account. YouTube has been criticized in the past for not doing enough to protect its users against wrongful claims but now the company appears to be drawing a line in the sand, albeit a limited one, in defense of those legally using copyrighted content in transformative ways. In a blog post Google’s Copyright Legal Director says that YouTube will showcase several user-created videos in its Copyright Center and cover all legal costs should rightsholders challenge how each uses copyrighted content. “YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary,” Fred von Lohmann said. “We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.” The first four titles showcased can be found here and each presents a classic demonstration of fair use. For example, the first uses game clips for the purposes of review, while the second offers a critique of third-party UFO videos. Google hopes that by standing behind videos such as these, YouTubers and those seeking to take down content will become educated on what is and isn’t appropriate when it comes to using other people’s copyrighted content. “In addition to protecting the individual creator, this program could, over time, create a "demo reel’ that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community,” Google’s Copyright Legal Director adds. Perhaps needless to say, Google isn’t in a position to offer legal support to everyone uploading content to YouTube but it has pledged to “resist legally unsupported DMCA takedowns” as part of its normal processes. “We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem, ensuring YouTube remains a place where creativity and expression can be rewarded,” Fred von Lohmann concludes. Of course, it’s unlikely that any video showcased by Google will experience any legal problems so the defense offer from the company is largely symbolic. However, the overall gesture indicates that the company is paying attention to the fair use debate and is prepared to help its users stand up for their rights. That will be gratefully received. Source: TorrentFreak
  6. For some, getting a copyright claim on their YouTube video might be an inconvenience. For others, it’s a massive headache that ignores copyright law… in the name of enforcing copyright law. Day in and day out automated bots detect and report millions of alleged copyright infringements, which are then processed by the receiving site without a human ever looking at them. Needless to say, this process is far from flawless. In the past we’ve covered countless false, inaccurate, and just plain hilarious DMCA claims, but YouTube’s takedown process is particularly problematic. As we have noted previously, YouTube copyright claims are in a class of their own, thanks to a one-sided notification system that has no evidentiary requirement. Nowhere was this more apparent than the Mega song takedown of late 2011, but it’s a constant problem. The main issue is that automated bots don’t (or rather can’t) understand fair use, although to be fair, it’s an area of copyright law most labels seem to want to ignore when it suits them, and one that won’t be fixed until Lenz v Universal finishes its slow trip through the courts. But in the meantime, many artists are still stuck dealing with systems that ignore significant sections of copyright law in order to keep things under lock and key, artists like Dan Bull for example. Dan, as regular TorrentFreak readers will know, is an artist that relies heavily on fair use to create his music, and he recently gave fans an idea of just how much of a pain it can be. For his 2010 [NSFW] song “I’m not pissed”, he reveals a screen-grab showing 18 separate claims that have been made against it. While some of them were released after being disputed, two of them, BMG Rights Management and PRS, rejected the dispute and stand by their initial claim. “It is up to me to prove myself innocent by asking eighteen different publishing companies through an automated system to revoke the automated claims. Each publisher has a month to reply, with no obligation to even do so. If even one of the eighteen publishers says ‘nope’ then it’s back to square one,” Bull explains. “Any financial loss or restrictions on my channel are entirely on me, and will not be compensated for once the claim is lifted. This has been going on since last year with no end in sight,” he adds. It’s a situation that discourages new artists and stifles creativity. Despite the claims of the major labels, and until some actual consequences are introduced for false, inaccurate, or over-reaching claims, it’s going to harm the greater creative world, just to enable the big guys to profit. Meanwhile, Dan has expressed his ire at YouTube in the way he knows best, through [again NSFW] song. And yes, he’s pissed now. Source: TorrentFreak