The International Intellectual Property Alliance (IIPA) has issued its annual Special 301 Report to the United States Trade Representative (USTR) outlining its take on the state of international piracy.

IIPA members include the Entertainment Software Association (ESA), Motion Picture Association of America (MPAA), Business Software Alliance (BSA) and Recording Industry Association of America (RIAA).

The report identified 35 countries as hotspots for piracy, including Canada. It was recommended that Canada remain on the Priority Watch List as it “stands virtually alone among developed economies in the OECD (and far behind many developing countries) in failing to bring its laws into compliance with the global minimum world standards embodied in those Treaties.” It was also suggested that Mexico be added to the Priority List, as, "A mixture of legislative deficiencies and a lack of consistent, deterrent enforcement have made Canada and Mexico piracy havens."

Spain, which is already on the list, should be placed under “close scrutiny” according to the IIPA as “Enforcement in the online environment is made more difficult as a consequence of Spain’s Attorney General issuing a circular that decriminalizes infringements that occur via peer-to-peer (P2P) networks. “

Brazil was also a target of the report, with a recommendation that the country be kept on the Watch List due to increasing piracy and the “lack of an effective legal or practical framework for addressing it.”

Also mentioned in the report was a study done by the ESA into illegal downloading practices. In December of 2009 the group tracked 200 member-published titles across P2P. It was estimated that 9.78 million downloads of the games in question were completed over the timeframe.

The full list of countries on the Priority Watch List are: Argentina, Canada, Chile, Costa Rica, India, Indonesia, Mexico, China, Philippines and Russian Federation. Remaining lists, as well as individual reports for countries, can be viewed here.

Countries on the USTR Watch List risk being on the receiving end of sanctions imposed by the USTR.

In a setback for Hollywood, an Australian judge has ruled that an Internet Service Provider (ISP) is not liable for the illegal downloads of its customers.

The case was originally filed in 2008 by the Australian Federation Against Copyright Theft (AFACT) on behalf of 34 movie studios, including Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney. The suit, as noted on the Sydney Morning Herald website, alleged that ISP iiNet, Australia's third-largest, was liable for authorizing copyright infringement on its network because it did nothing to warn or disconnect users downloading illegal goods, despite repeated notifications from the movie studios.

iiNet, for its part, argued that it was not required to act upon “mere allegations” of copyright infringement and that customers were innocent until proven guilty. It likened the lawsuit to suing an electric company for things people might use electricity for.

The conclusion of an eight-week long trial saw Federal Court Justice Dennis Cowdroy issue a ruling in iiNet’s favor, in which he stated that the ISP was a legitimate communications company that was neither intended nor designed to infringe copyright.

Justice Cowdroy continued:

iiNet is not responsible if an iiNet user uses that system to bring about copyright infringement ... the law recognises no positive obligation on any person to protect the copyright of another.

AFACT’s Executive Director Neil Gane indicated that the decision would be reviewed before a decision on an appeal was decided.

He added:

…we believe this decision was based on a technical finding centred on the court’s interpretation of how infringements occur and the ISP's ability to control them.

Expect an appeal.


Thanks Grant and CMiner!

An story on BoingBoing cites a British Labour Government source that such a move may be underway.

The article, noticed by GPer DarkSaber, reports that changes could be introduced to the Digital Economy Bill, which would enable the Secretary of State to introduce legislation without debate in order to amend the Copyright, Designs and Patents Act and to introduce a Pirate-Finder General.

Current Secretary of State Peter Mandelson's is behind the proposal, which would feature the following measures:

1. The Secretary of State would get the power to create new remedies for online infringements.

2. The Secretary of State would get the power to create procedures to "confer rights" for the purposes of protecting rightsholders from online infringement.

3. The Secretary of State would get the power to "impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement."

The Electronic Freedom Foundation (EFF) was equally alarmed at the news and has introduced a form of action that urges UK citizens to call their MP.

The EFF labels the ability to to introduce legislation without debate “dangerous,” adding “This bill would grant the Secretary of State sweeping powers to mess with the very fundamentals of the UK copyright system law, ignoring the voices of UK citizens to meet the needs of one set of interest holders.”

The EFF further notes that Mandelson may also target “Cyberlocker” services like Amazon’s S3, Dropbox and YouSendIt, which allow users to swap and share large files.

As the Canadian government undertakes a public consultation on copyright issues, the head of game publishers lobbying group ESA Canada has penned an op-ed on the issue for Straight.com.

Not surprisingly, Danielle Parr argues for technological protection measures (TPM) and against mod chips (which are not currently illegal in Canada). Parr writes:

For the video-game industry, TPMs are not only used to prevent piracy and cheating (e.g. “modding” game code to give an unfair advantage over other players); they also enable access to a greater range of features and options that would otherwise be unavailable. Things like parental controls... “trial” or “demo” versions of games, and new digital distribution platforms like Valve’s Steam, Xbox Live Arcade, or the PlayStation Network, all provide greater choice and access for consumers...

By ensuring that consumers have a variety of digital offerings to choose from, legal protection for TPMs allows market forces to protect consumer interests, so if a consumer does not like the conditions of sale or terms of service for one digital product or service, they can simply take their business elsewhere. Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.

Those commenting on the Straight.com piece, however, don't seem to be buying Ms. Parr's arguments. As I post this, there are 15 comments, all of which are critical of the ESA Canada boss's op-ed.

GFOX: Danielle Parr, and the [ESA Canada] are completely out of touch on this issue. By failing to bend to an American lobby group such as the ESA I hardly think that the government of Canada can be seen as "dictating" any particular business model... The ESA's [penchant] for freely spewing unsubstantiated and exaggerated statistical data with the sole intention of striking fear into the hearts and minds of lawmakers is appalling...

NerdOfAllTrades: I agree that measures should be taken to prevent piracy, but punishing your loyal customers with TPM, which will only mildly inconvenience real pirates for the few hours it takes them to remove it... will only make people want to buy fewer PC games.
 
Sébastien Duquette: DRM is a failure... I really don't like Parr's fear-mongering tone. The industry of video game is flourishing, without DRM inforcement

Will: The video game industry has claimed to be on the brink of collapse due to piracy since the 1980s, and yet it somehow continues to grow bigger and more profitable... There will always be free riders who don't pay for their copy, but that isn't relevant. It's how many games you sell, not how many you don't sell that matters... This control-freak mentality... serves only to create hostility between the industry the customers...

AWJ: once you throw in an anti-circumvention law like the American DMCA, your platform monopoly becomes a state-enforced monopoly... Danielle is even arguing is that if the government doesn't give Microsoft and Nintendo and Sony the state-enforced monopolies they want, then it's "dictating the business model". If nothing else, I admire her chutzpah...

WayneB: Let me get this straight - [DRM] is an advantage to the consumer? What a bald faced lie.

Idle: This is a disgusting show of contempt for canadians brought to you by the ESA "of Canada".

GP: In the photo at left, Parr is seen at ESA Canada's Ottawa Day 2009 lobbying event.

The Associated Press reports that the Entertainment Software Association, which represents the interests of U.S. video game publishers, spent $1.2 million on government lobbying efforts during the period April-June, 2009.

Looking beneath the surface, GamePolitics has obtained an actual copy of the ESA's latest federal lobbying report. The document shows that Big Gaming has its fingers in a surprising number of legislative and governmental pies. The following are issues which the ESA reports that it lobbied on in Q2:

• Media regulation
• First Amendment protection
• Entertainment industry ratings
• Parental control technology
• Content/video game sale regulation
• Retailer enforcement of ratings
• Piracy
• Copyright Act (believed to be the DMCA)
• Anti-circumvention
• Patent modernization
• Intellectual property enforcement
• Customs reauthorization
• PRO-IP Act appropriations
• Dept. of Justice appropriations
• Dept. of State reauthorization
• Free Trade Agreements
• Special 301 Designated Countries
• Trade Policy Reform
• Domestic regulatory & administrative issues
• Trade enforcement
• Doha Round Proceedings (trade talks)
• Trade Promotion Authority
• Internet Governance
• Virtual worlds
• Online gaming
• Highly skilled workforce
• H1-B visas
• Green cards
• Immigration reform
• ISP management
• Copyright Enforcement
• Broadband deployment
• Broadband policy
• Consumer Product Safety Improvement Act implementation

Agencies lobbied by the ESA include some surprising entities. Here's the list:

• U.S. House of Representatives
• U.S. Senate
• Federal Communications Commission
• Federal Trade Commission
• National Telecommunications & Information Administration
• U.S. Copyright Office
• U.S. Customs & Border Protection
• U.S. Trade Representative
• Department of Commerce
• Department of Homeland Security
• Department of Justice
• Patent & Trademark Office
• FBI
• National Security Council

DOCUMENT DUMP: Grab your own copy of the ESA's lobbying report... (9-page PDF)

Anti-piracy marketing campaigns are sometimes creepy (such as this video which suggests that your mom will be manhandled by the police if you engage in file sharing).

But the Business Software Alliance, which primarily watches out for abuse of productivity-ware, has come up with an antipiracy ad that is actually fun to watch. The parody of Dateline's "To Catch a Predator" series features a would-be pirate humorously caught in a sting. BSA exec Peter Beruk commented on the video:

It uses comedy to convey what is a serious message. It’s experimental.

Via: Wired's Threat Level

A new plan being prepared by the British government would see drastic action implemented against individual file sharers, reports the Irish Independent.

Business Secretary Lord Mandelson (left) will call for a new law that would allow Internet access restrictions as well as fines of up to £50,000 for those found engaging in P2P.

However, former minister for digital engagement Tom Watson has criticized the plan:

Not only do the sanctions ultimately risk criminalising a large proportion of UK citizens, but they also attach an unbearable regulatory burden on an emerging technology that has the power to transform society, with no guarantees at the end that our artists and our culture will get any richer.

Working on the safe assumptions that (a) people like downloading music from the internet, and (b) most people would prefer not to break the law, we should aim to map a way forward for businesses to take financial advantage of the digital market.

The digital era has permanently altered the way media is controlled and distributed, resulting in a relationship between rights holders and the public that is often contentious. Against that backdrop, so-called Pirate Parties have sprung up recently on the European political scene.

Andrew Robinson, who heads the UK Pirate Party, spoke to PC Pro about his organization, its vision, and why the party's name is a problem:

There's approximately 7 million file sharers in this country - you're branding a huge percentage of this population criminals for doing something that doesn't have any proven implications. It's a ridiculous state of affairs... People who copy a movie are lumped in with people who steal cars.

 

Our copyright law is horribly outdated and its skewed one way because all the lobbying is on the side of big businesses...

Competing with the Conservatives while wearing an eye patch isn't going to do us any favours. We've had the [Pirate Party] name foisted on us by the Swedish party, but it's difficult. We need to point out that we're saying very sensible things, while the industry lobby is labelling us as pirates... We're trying to have a proper debate and when people actually listen to what we've got to say they'll realise we're being serious...

Given the recent history of consumer-unfriendly DRM fiascos surrounding Spore and other high-profile PC titles, it's refreshing to hear from a vendor of copy protection software who is actively seeking gamer input.

While we will confess to knowing very little about a DRM product called Byteshield, we note that CEO Jan Samzelius posted in the GamePolitics/ECA forums last night:

We pride ourselves on listening to gamers and try to configure our solution accordingly... We are trying to convince game publishers and developers to put gamers first and organize everything else around it. I want to hear from everybody about what you do not like and then see if you like what our solution does.

Byteshield appears to have received positive reviews from the anti-DRM crowd at The Prism.

GP: This is certainly not an endorsement of Byteshield as I haven't tested it myself. But as a game consumer, I'm always pleased when company execs keep gamers in mind.

If you illegally download software or music, your mom will be wrestled to the ground and arrested by a SWAT team - for cooking pasta.

That's just one of the apparent messages in a modern-day update of 1992's Don't Copy That Floppy.

The Software & Information Industry Association, which created the video, explains (sort of) in its YouTube description of the video:

Check out the trailer...anti-piracy hero MC Double Def DP will return in the summer of 2009 to drop some more knowledge on would-be pirates in the sequel to 1992's "Don't Copy That Floppy! Brought to you by SIIA (formerly SPA)

Via: ZeroPaid

The Pirate Bay going legit?

It would seem so, following the site's acquisition by Global Gaming Factory X. As reported by gamesindustry.biz, GGFX paid USD 7.8 million for what was once the web's top destination for illegal file sharing. That all came to an end, of course, with the recent copyright violation convictions of the site's operators in a Swedish court.

Hans Pandeya, CEO of GGF, explained the deal:

We would like to introduce models which entail that content providers and copyright owners get paid for content that is downloaded via the site.  The Pirate Bay is a site that is among the top 100 most visited internet sites in the world. However, in order to live on, The Pirate Bay requires a new business model, which satisfies the requirements and needs of all parties, content providers, broadband operators, end users, and the judiciary.

Content creators and providers need to control their content and get paid for it. File-sharers need faster downloads and better quality.

Business Wire reports that half of the purchase price is in cash with the rest in stock.

The man who brought Mortal Kombat to the big screen has sued Midway in U.S. Bankruptcy Court over what he claims are his intellectual property interests in the franchise. The suit may interfere with a proposed  $33 million sale of Midway assets to Warner Bros.

In a complaint filed yesteday, Lawrence Kasanoff, through his company, Threshold Entertainment, asked the Court to preserve his IP rights including copyrights to certain MK series characters. Kasanoff also wants to retain the right to create derivative film and television projects based on the popular fighting game franchise.

Kasanoff claims that it was he who made Mortal Kombat more than just a video game:

In 1993, Kasanoff visited Midway... with an idea to launch the Mortal Kombat concept in a totally new direction. Specifically, Kasanoff proposed to develop... a full feature-length motion picture, a television series, and other productions. Midway was initially skeptical, as Kasanoff's idea was revolutionary at the time...

 

The Mortal Kombat series, as it stands today, is far more a creation of Threshold and Kasanoff than of Midway. Midway's creative input was almost entirely limited to the videogames. On their own, the videogames provided only minimal back-story and mythology, and only flat, "stock" characters... Kasanoff and Threshold were responsible for virtually all of the creative input that went into turning the videogame concept into a multimedia enterprise.

In his lawsuit, Kasanoff also claims credit for making MK characters like Liu Kang, Sonya Blade and Scorpion into recognizable names. The suit estimates that the franchise has grossed more than $4 billion over the years.

In petitioning the Bankruptcy Court, Kasanoff seeks to block the proposed sale of Mortal Kombat assets to Warner Bros.

DOCUMENT DUMP: Grab a copy of Kasanoff's complaint here.

We've got DRM in our games, the RIAA continues to sue small-fry, individual file sharers, the consumer-unfriendly Digital Millenium Copyright Act is the law of the land, the IP industry is trying to push DMCA-like legislation in Canada, and the secret ACTA copyright negotiations are ongoing.

But the copyright lobby would like to be in your kid's school, too.

The Copyright Alliance, a lobbying group which includes game publishers trade association the Entertainment Software Association among its members, has just launched the Copyright Alliance Education Foundation, which it bills as a non-profit, charitable organization:

Its mission as of now is K-12 schools, and... we are already working with many schools across the country... The focus of our curricula is student empowerment; communicating how the U.S. Constitution gives each and every one of us rights and ownership over our creations.

Taking classroom time away from the 3R's is not a new idea for those in the IP protection business, however. As GamePolitics reported in 2007, the ESA's top enforcement exec, Ric Hirsch, told attendees at an anti-piracy conference:

In the 15- to 24-year-old (range), reaching that demographic with morality-based messages is an impossible proposition... which is why we have really focused our efforts on elementary school children. At those ages, children are open to receiving messages, guidelines, rules of the road, if you will, with respect to intellectual property.

The Obama administration slammed Canada last week, adding our northern neighbor to a list of what the office of the U.S. Trade Representative says are nations which fail badly at copyright protection. U.S. media rights holders, including video game publishers' lobbying group ESA, lauded the USTR's addition of Canada to its Priority Watch List.

Some Canadians reacted with anger, claiming the action was driven by America's corporate IP lobby and arguing that Canada should not bow to such consumer-unfriendly pressure.

Via boingboing, we've gotten a look at C-61, a mini-documentary which addresses the Canadian government's so far unsuccessful attempt to pass DMCA-style copyright law.

boingboing's Cory Doctorow, who provided some narration to the film, comments:

A group of Canadian copyfighters produced this mini-documentary, "C-61," about the proposed new Canadian copyright law, which the US government is pressuring Canada to pass (that's why the USA added Canada to a nonsensical list of pirate nations).

 

Previous attempts to pass this bill have been a disgrace -- famously, former Industry Minister Jim Prentice refused to discuss the bill with Canadian record labels, artists, tech firms, or telcos, but did meet with American and multinational entertainment and software giants to allow them to give their input. In the bill's earlier incarnation as C-60, its sponsor, Sam Bulte, was caught taking campaign contributions from the same US and multinational entertainment companies...

A day after U.S. Trade Representative Ron Kirk added Canada to the USTR's "Priority Watch List" of copyright offenders, Canadians are beginning to fire back.

University of Ottawa law prof Michael Geist writes:

The move is not unexpected, given recent comments from Vice President Joe Biden and U.S. Congressional panels as well as the demands from U.S. lobby groups...  (never mind that Canada enacted anti-camcording laws in 2007, introduced C-61 last year, is an original negotiating partner in the ACTA negotiations, joined the U.S. as a third party in the WTO copyright complaint against China, etc.).

Geist also cites the Canadian government's 2007 objection to pressure applied by the USTR:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

In a separate post, Geist calls the Priority Watch List designation absurd, noting figures which show Canada's piracy rate to be quite low compared to other nations:

The IIPA, the lead U.S. lobbyist on international IP matters, has issued a press release on the USTR Special 301 report, welcoming the inclusion of Canada on the Priority Watch List.  Yet the release inadvertently demonstrates why the designation is so absurd...

 

compare Canada to the remainder of the list.  Canada comes in at 32%... Not only is Canada not even remotely close to any other country on the list, it has the lowest software piracy rate of any of the 46 countries in the entire Special 301 Report... 

Those pesky Canadians have finally pushed the U.S. Government to the brink.

If the Bushies were still in power we might now be glued to CNN, watching the 82nd Airborne para-dropping into Ottawa. But as it is, the Obama administration has settled for delivering a nasty slap via the office of U.S. Trade Representative Ron Kirk (left).

The issue is copyright protection and the USTR, a cabinet-level post, has been making unpleasant noises in Canada's direction for several years. Today Kirk dropped the hammer, placing Canada on the "Priority Watch List" along with China, Russia, Algeria, Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand, and Venezuela. From the USTR report:

Canada is being elevated to the Priority Watch List for the first time, reflecting increasing concern about the continuing need for copyright reform, as well as continuing concern about weak border enforcement.

The Entertainment Software Association, which lobbies on behalf of U.S. video game publishers, was quick to applaud the action in a press release. No surprise there, as the ESA has been pushing hard in recent years for Canada to outlaw mod chips and adopt its own version of the consumer-unfriendly Digital Millenium Copyright Act.

In fact, with DMCA-like legislation an issue that Canada's Parliament will soon be considering, a cynic might be forgiven for thinking that the USTR's action was timed for its persuasive value as much as anything else.

Of today's announcement, ESA CEO Michael Gallagher commented:

Putting Canada on the ‘Priority Watch List’ is a signal of the Obama Administration’s commitment to strengthening global intellectual property protection, and its intent to address this issue firmly with the Canadian government. Canada’s weak laws and enforcement practices foster game piracy in the Canadian market and pave the way for unlawful imports into the U.S.

So what does the ESA want from Canada? They have a laundry list:

• Enact legislation outlawing game circumvention devices, such as “mod chips” and “game copiers,” in line with Canada’s international treaty obligations
• Create adequate legal incentives for internet service providers (ISPs) to work with copyright owners in combating online piracy
• Provide Customs officials with adequate authority to make ex officio seizures of counterfeit and pirate product at the border; and,
• Provide adequate resources to anti-piracy enforcement efforts and make prosecution of intellectual property crimes a high priority.

On several recent occasions, GamePolitics has reported on ACTA, the international copyright treaty being negotiated in secret by various governments, including the United States.

Here in the U.S., IP rights holders - including the video game industry - have been granted access to information concerning ACTA negotiations. John Q. Public has been shut out, however.

But the Obama administration's promised commitment to open government appears to be pulling back the curtain on ACTA, at least a bit.

IDG reports that the Office of the U.S. Trade Representative has released a six-page summary of ACTA negotiations, which have been going on behind the scenes since 2006. Gigi Sohn, President of Consumer rights group Public Knowledge praised the info release:

The dissemination of the six-page summary will help to some degree to clarify what is being discussed. At the same time, however, this release can only be seen as a first step forward. It would have been helpful had the USTR elaborated more clearly the goals the United States wants to pursue in the treaty and what proposals our government has made, particularly in the area of intellectual property rights in a digital environment.

As GamePolitics has reported previously (see: Digital Rights Groups Go To Court Over Secret Anti-Piracy Treaty), secret negotiations are taking place between the United States, Japan, Canada, the European Union and others governments. Representatives of the various nations are attempting to broker a mysterious treaty known as the Anti-Counterfeiting Trade Agreement (ACTA).

Under discussion are intellectual property and copyright protection, important issues, to be sure. But while the Bush - and now, Obama - administrations have claimed that national security interests prevent consumer access to information about ACTA, Knowledge Ecology Notes reports that dozens of corporate lobbyists have been cleared for ACTA documents.

Included among these, according to the site, are Stevan Mitchell, VP of IP Policy for the Entertainment Software Association. The ESA is a trade association which represents U.S. video game publishers.

Also represented are the Motion Picture Association of America, the Recording Industry Association of America and the International Intellectual Property Alliance, of which the ESA is a member.

Hal Halpin, president of the Entertainment Consumers Association (ECA) has previously expressed concerns about ACTA:

Because ECA supports the balance that must exist between the rights of copyright owners and the right of copyrighted material consumers, we do not think it wise to include any portions of the Digital Millennium Copyright Act (DMCA) in the Anti-Counterfeiting Trade Agreement (ACTA) currently being discussed...    

We are concerned that any DMCA language in ACTA may cause enormous, unforeseen negative implications in US law.  That is why ECA, together with the Consumer Electronics Association, the US Internet Industry Association, Intel, Yahoo, Verizon and others, sent a memo asking the USTR to carefully consider that any discussions of “Internet issues” in ACTA be carefully circumscribed, consistent with U.S. law, and not include any portions of the DMCA.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

Western Europe is a hotbed of P2P piracy, said the Entertainment Software Association in a press release earlier today.

The trade group, which represents the interests of U.S. video game publishers, included its findings as part of a report to the U.S. Trade Representative by the International Intellectual Property Alliance.

The ESA says that it studied P2P sharing of 13 popular game titles in December, and logged nearly 6.5 million illegal downloads. Italy was the leading offender, followed by Spain, France, Germany and Poland.

The ESA also indicated that it found "high demand" for console and handheld titles, which it says translates to "widespread availability of circumvention devices and game copiers in many leading markets."

Here's what the ESA had to say about Italy:

For a popular AAA racing title alone, Italy had close to 590,000 downloads... Telecom Italia’s networks were implicated in 11.6% of the completed downloads observed globally, making it the world’s most heavily utilized ISP in the course of the industry’s study... It was also found that with greater incidence of video game piracy through P2P networks, there appeared to be a corresponding and dramatic decrease in legitimate sales of entertainment software. Individual member company online monitoring confirms these trends.

 

The industry is also plagued by the easy availability online of circumvention devices, such as mod chips. This situation was exacerbated by a court decision in Bolzano, Italy, holding that mod chips were not illegal under Italian legislation implementing the EU Copyright Directive. Fortunately, the Supreme Court in 2006 reversed this court decision and found that circumvention devices are illegal under Italian law, but the damage was done and continues.

As GamePolitics noted yesterday, the operators of notorious torrent site The Pirate Bay are on trial in Stockholm where they face copyright claims levied by the video game, music and film industries.

But Ars Technica reports that the TPB defendants won an early victory as the Swedish prosecutor dismissed half of the charges earlier today:

The [new] focus is solely on how The Pirate Bay made it simple for others to make copyrighted material available. As Swedish Pirate Party leader Richard Falkvinge noted on Twitter, the case now turns on "the Jammie Thomas Q[uestion]: Is making available enough to breach copyright?"

That case, heard in Minnesota, is the only one of the RIAA's file-sharing lawsuits to make it to trial and a verdict—and the judge eventually set the verdict aside over doubts that making a file available to others infringed on copyright unless an actual distribution could be shown.

The Pirate Bay backers have always claimed that their site, which does not directly host files, is the same as any user-generated content site...

The Jammie Thomas case, however, is not binding on the Swedish court. Music industry legal consultant Peter Danowsky downplayed the significance of the prosecutor's move:

It's a largely technical issue that changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay. In fact it simplifies the prosecutor's case by allowing him to focus on the main issue, which is the making available of copyrighted works.

Those pesky Canadians!

Copyright lobbying group the International Intellectual Property Association has once again called upon the U.S government to add neighboring Canada to a list of copyright-violating rogue nations, reports the Los Angeles Times.

The Entertainment Software Association, which lobbies on behalf of U.S. video game publishers, is an IIPA member. Indeed, much of the IIPA's angst with our friends to the north seems to revolve around Canada's more tolerant attitude toward mod chips. From the L.A. Times:

Specifically, [the IIPA is] asking the Obama administration to add Canada to the "Priority Watch List" alongside Mexico (hey, it's a NAFTA reunion!), Russia, China and other countries with a reputation for disregarding copyrights, patents and trademarks...

In particular, the IIPA wants Canada to do more to block the manufacture and sale of video game "mod" chips and other equipment to circumvent electronic locks; raise the statutory penalties for unauthorized copying, even when it's done for personal use; crack down on the manufacture and sale of bootlegged DVDs; and require ISPs to take down infringing material upon request, rather than simply passing a notice of infringement on to the customer responsible for it.

The Bush administration essentially blew off the IIPA's previous entreaties to target Canada. It's doubtful that the group will have any better luck with the Obama team.

Meanwhile, as we were preparing this story, the ESA dropped a press release on the topic with the obligatory doom-and-gloom piracy quote from CEO Mike Gallagher:

Piracy is the single greatest threat to the innovation, artistic commitment and technological advancements enjoyed by millions of consumers worldwide. Piracy is a job killer that the world economy cannot afford in these difficult economic times. Countries that skirt obligations to combat piracy need to understand the unacceptable damage they are facilitating —and those countries that invest  in protecting intellectual property rights and ensure that piracy is not tolerated at any level should be lauded.

The ESA also cited what it termed "alarmingly high volumes of illegal game downloads" on P2P networks BitTorrent and eDonkey.

Four Swedish men who founded the popular torrent site The Pirate Bay face criminal accusations today in a Stockholm courtroom.

As reported by afterdawn, Fredrik Neij, Gottfrid Svartholm, Peter Sunde and Carl Lundstroem are charged with "promoting violations by other people of laws protecting royalties." The quartet is also being sued for US$17.6 million by the video game, movie and music industries.

Meanwhile the Guardian reports that The Pirate Bay crew has worked to create a festive air around the court case:

The Pirate Bay team held a press conference on Sunday complete with a small brass band, which they have posted on mobile video site Bambuser. In fact, there is a 'spectrial' channel on Bambuser to follow breaking developments...

While the hashtag is useful, some of the best Twitter coverage is coming from Sofia, a Swede in San Francisco. Due to the 140-character limit on Twitter, she is using a abbreviations, which she explains on her blog. Blogger Zondron also has a good list of links for live audio feeds and blogger coverage of the trial.

However, a lawyer for the film biz isn't buying into the fun. Monique Wadsted said:

It's not a political trial, it's not the trial that has as its purpose to shut down some kind of people's library or to prohibit any file-sharing technique. It's a trial that regards four persons that have conducted the commercial activity, earning a lot of money in providing the possibility for others to make pirate copies of big commercial productions, movies, music and popular computer games.

The operators of The Pirate Bay face up to two years in prison as well as large fines if convicted.

Digital activist group the Electronic Frontier Foundation has called upon the Federal Trade Commission to mitigate the harm caused to consumers by digital rights management (DRM).

An EFF press release quotes staff attorney Corynne McSherry (left) on the DRM issue:

DRM does not prevent piracy.

 

At this point, DRM seems intended to accomplish a very different purpose: giving some industry leaders unprecedented power to influence the pace and nature of innovation and upsetting the traditional balance between the interests of copyright owners and the interests of the public.

 

The best way to fix the problem is to get rid of DRM on consumer products and reform the [Digital Millenium Copyright Act], but the steps we're suggesting will help protect technology users and future technology innovation in the meantime.

The EFF press release adds:

Industry leaders argue that DRM is necessary to protect sales of digital media, but DRM systems are consistently and routinely broken almost immediately upon their introduction.

The group filed public comments with the FTC in advance of the government agency's Town Hall on DRM, which is scheduled for March 25th in Seattle.

Gamasutra has posted a lengthy piece which examines the state of video game regulation and what we might expect from the Obama administration in regard to games.

Author Neils Clark interviewed me for the article, so I'll share my quote on Obama and games:

To be honest, I think that when politicians get around to legislating video games that will mean that they're feeling comfortable with some of the more important issues. Right now there's so much on President Obama's table: the economy, the wars in Iraq and Afghanistan, I can't see his administration prioritizing video game content legislation.

Let's be clear, though. While I don't think that Obama will be pushing game content legislation from the White House, that certainly doesn't preclude members of Congress from introducing their own bills, as we saw recently with Calfornia Rep. Joe Baca's push to include cigarette-like health warnings on games rated T and higher.

State-level efforts, of course, are unaffected by Obama's view on game legislation. Thus we will likely see a Jack Thompson-authored legislative proposal in Utah soon. California's contested law will almost certainly head to the U.S. Supreme Court, no matter how the 9th Circuit rules on the state's pending appeal.

Actually, as I told Neils, going forward I see the fight between consumers and media corporations over IP issues like DRM as even more of a threat to gamers than government legislation. On that score, however, I will qualify one comment I made regarding the feds' 2007 mod chip raid, which I blasted in the Gamasutra piece:

Yes, mod chips have applications for piracy, but possibly also for homebrew gaming. It seems heavy handed to me to have federal agents kicking down doors over mod chips.

What's fascinating is that we're more than a year beyond that [raid] and all of those cases are still sealed in federal court... This is America, what's going on here? You kick down 32 doors over mod chips more than a year ago and it's still a big secret?

I did the Gamasutra interview in mid-November, but that was before an investigative report on GamePolitics broke the news that at least one big fish was busted in those 2007 raids. So, while it's clear that not everyone whose door went down was a small timer, it's still pretty interesting that the case remains under wraps 18 months later.

Rep. Rick Boucher (D-VA) has been picked to lead an important Congressional subcommittee, and that's good news for game consumers.

As MediaPost reports, Boucher will chair the House Energy and Commerce Subcommittee on Telecommunications and the Internet. From MediaPost:

As a longtime proponent of consumers' rights to lawfully copy films, books and other material, Boucher is considered a likely opponent of any entertainment industry efforts to restrict the Web. Among other measures, he is likely to oppose attempts to require Internet service providers to filter networks for pirated material.

Boucher also has tried to revamp the Digital Millennium Copyright Act to make it more consumer-friendly... Boucher's bill would have specified that the anti-circumvention rules do not apply in certain situations, such as when the purpose of getting around the restrictions was to access a work in order to criticize it or report about it...

In 2002, Boucher authored a strident column extolling the benefits of fair use... Boucher also supports net neutrality initiatives, as does President-elect Barack Obama.

In 2007 the Entertainment Consumers Association endorsed Rep. Boucher's fair use legislation, although the bill ultimately failed to pass.

Full Disclosure Dept: The ECA is the parent company of GamePolitics. 

Last September's controversial release of Spore demonstrated the extent to which digital rights management (DRM) has become a wedge issue between game publishers and game consumers.

Might the government step in on the side of consumers?

That's difficult to say, but we note that the Federal Trade Commission will hold a town hall conference on DRM issues in Seattle on March 25th. The event will be co-hosted by the Technology Law and Public Policy Clinic at the University of Washington School of Law.

The FTC is currently recruiting panelists and hasn't yet finalized topics. Here's the preliminary agenda:

• Opening remarks
• Demonstrations of DRM-related technology
• Panel discussions regarding burdens on, and benefits for, consumers, and other market and legal issues involving DRM
• Review of industry best practices
• Consideration of the need for government involvement to better protect consumers.

That last bullet point is pretty interesting, especially in light of the FTC's mission:

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them.

Game consumers have been complaining loudly about DRM and lately even filing class-action lawsuits over the issue. Publishers who employ DRM routinely cite game software piracy as the reason.

Those interested in serving as panelists or suggesting topics for discussion should contact the FTC at drmtownhall@ftc.gov by January 30, 2009. An FTC press release offers these guidelines:

Interested parties should include both a statement detailing their expertise on the issues to be addressed at the Town Hall, and complete contact information. The Commission will select panelists based on their expertise and on the need to represent a range of views.

Those with a view may also submit written comments or original research until January 30, 2009 to this URL. The town hall meeting is free and open to the public. Pre-registration is not required. It will be webcast live on the FTC website.

Thanks to: GP reader Steve Augustino

Researchers at Sweden's Lund University are studying the ways in which interaction with file-sharing and social networking sites may affect how adolescents develop norms and values.

Swedish news outlet The Local reports that controversial file-sharing BitTorrent site ThePirateBay has been cooperating with researchers on the project.

Måns Svensson of the University’s department of sociology of law commented on the scope of the research, which will take four years to complete:

We’re going to try to see if there are social patterns which legislation and state powers normally don’t see and don’t address. We have a theory that there are processes for building norms on the internet which look different than those which take place in traditional society and that they are moving in a different direction than where the majority of society and legislation are headed.

This can be a problem for the law when you have a young, growing generation which creates its morals and norms through contact with these types of activities on the internet and a set of laws which doesn’t really comprehend what’s new and which risks heading off course in its attempt to regulate them.

Via: ZeroPaid

In July, toymaker Hasbro, which owns the rights to the venerable board game Scrabble, filed suit against the publishers of Scrabulous, a Scrabble knockoff accessible via Facebook.

Scrabulous disappeared immediately, thanks to a DMCA take-down order, and EA quickly launched an officially-licensed Scrabble version on the popular social networking site.

The Associated Press is now reporting that Hasbro has dropped its lawsuit against Calcutta-based Jayant and Rajat Agarwalla, the brothers who created Scrabulous. From the AP story:

Court documents did not specify a reason for the withdrawal of the case.

RJ Softwares, the Agarwalla brothers' company, said in a statement that it has agreed not to use the term "Scrabulous" and has made changes to different versions of the game it created after the lawsuit was filed...

"The agreement provides people in the U.S. and Canada with a choice of different games and also avoids potentially lengthy and costly litigations," the statement said.

Barack Obama does not take office until January 20th, but the video game industry is already lobbying the President-elect, via an intermediary.

The game industry's issue, at this point, is copyright protection. Along with the likes of the RIAA (music biz) and MMPA (movie biz), video game publishers trade group the Entertainment Software Association belongs to an organization known as the International Intellectual Property Alliance. It is the IIPA which is doing the actual lobbying.

Toward that end, the IIPA has provided the Obama team with its list of Copyright Industry Global Challenges for 2008, and is believed to have met with them as well. For its part, the Obama team, in an effort at greater government transparency, has listed all outside lobbying efforts - including the IIPA's - at its remarkable Change.gov website.

Among the game-related concerns cited in the document are:

• Internet-based piracy
• Optical disc piracy
• End-user piracy
• Cartridge-based video game piracy
• Open access to foreign markets

GP: There's nothing new or especially egregious in the IIPA document - unlike the MPAA's separate effort to convince Obama to adopt IP enforcement measures which would essentially throw consumers' due process rights under a bus.

A team from Harvard Law School will square off against the Recording Industry Association of America (RIAA) today in a Rhode Island Federal Court, according to a Harvard Law press release.

Prof. Charles Nesson (left) and a group of law students have taken up the case of Joel Tenenbaum, a Boston University grad student targeted by the RIAA. Alleging that Joel file-shared seven songs as a teenager, the RIAA is seeking more than one million dollars from Tenenbaum family. Odly enough, if the same music was purchased on iTunes, the total value would be all of $6.93.

Matt Sanchez, one of law students assisting Prof. Nesson, said:

The basic rules of evidence suggest that this invasion of privacy is both unnecessary and absurd. This hearing isn’t only about Joel’s parents.  It’s also about finally putting up a fight against the recording industry’s intimidation practices.

An except from a case document filed by the Harvard team explains their position:

The [RIAA] is in the process of bringing to bear upon the defendant, Joel Tenenbaum, the full might of its lobbying influence and litigating power. Joel Tenenbaum was a teenager at the time of the alleged copyright infringements, in every way representative of his born-digital generation. The plaintiffs and the RIAA are seeking to punish him beyond any rational measure of the damage he allegedly caused.

 

They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future

Check out Harvard Law's CyberOne blog for more info. There is also a Facebook group in support of Joel Tenenbaum.

GP: While not a video game story, Harvard Law's legal battle against the RIAA's IP ham-handed enforcement tactics have implications for game consumers as well.