The Senate Judiciary Committee passed S. 3325, the Enforcement of Intellectual Property Act of 2008, a scary bill that will make the Justice Department a legal resource for media companies and copyright holders.

The law is the evolution of the PRO-IP Act, which the House passed in May, and the PIRATE Act in the Senate and remains just as one-sided to Big Content as before.  The Enforcement of Intellectual Property Act increases damages for infringement while adding an Intellectual Property Enforcement Coordinator to advise the president and oversee IP enforcement over various federal agencies.

The scariest aspect of this law is granting federal prosecutors the power to bring civil suits against copyright infringers.  This makes the Justice Department, normally in charge with protecting the U.S. and its citizens, will be protecting one industry’s obsolete business model in court, wasting taxpayer money and turning over any awards to those media companies.  What’s worse is if someone is falsely prosecuted, they cannot sue for legal fees like they can against non-government plaintiffs.

Several amendments were removed including raising penalties for circumventing DRM, but the worst still remain and will likely be passed by huge margins.  The reason: Big Copyright funds elections while consumers pay the price.

Information Week’s Mitch Wagner posts an excellent question to the internet community. Are there any examples of a company fighting piracy and launching lawsuits as a successful business strategy?

Wagner has several examples of the opposite; where lawsuits only alienate customers. He begins with Hasbro’s recent takedown of the popular Scrabulous game on Facebook to launched its own unpopular Scrabble game, coving the music industry and Garfield.  Matt Mason’s “The Pirate’s Dilemma” is a book length list of examples of lawsuits hurting businesses.

There are even examples of companies embracing piracy to improve their businesses.

So does anyone have an example of lawsuits helping companies?

[Via Techdirt]

Blizzard recently won its case against MDY, the makers of Glider, a program that played the World of Warcraft game by itself.  The court banned the distribution of Glider on the ludicrous claim of copyright violations.  Blizzard pointed to its EULA document (which can only be read after buying the game and are “enforced” once you open the package) that tries to limit what users can do with a product they legally purchased.  Blizzard says it sells you a limited license of the game, not the game itself thus negating your First Sale Doctrine rights.  Courts have been mixed on the power of EULA agreements since no one reads them or actually agrees to them.

Now that Blizzard won its summary judgement, it’s looking to push harder on Glider, asking the court to ban the source code from being open-sourced and preventing the developers from helping anyone else create a similar product.

I already have issue with the initial ruling, negating consumer’s first sale doctrine rights just because Blizzard says those don’t count because of a document no one read or agreed to.  The court believes this instance is copyright infringement, but now Blizzard wants the court to basically ban any future products just because.

This case already sets a bad precedent for future EULA and software modification cases.

My many issues with copyrights and patents stem from them being used for reasons beyond their intention.  These government granted monopolies are meant to encourage people to create new works of arts and inventions.

This is why I’m confused by the European Union’s decision to extend copyrights for musicians by 45 years.  If musicians made music before this extension, that means the original copyright deal worked - artists were rewarded with 50 years of control over their work.  But now all those musicians get another 45 years and what does the rest of Europe get? A copyright system used for welfare.

Irish EU commissioner Charlie McCreevy didn’t hide the fact.

I am not talking about featured artists like Cliff Richard or Charles Aznavour. I am talking about the thousands of anonymous session musicians who contributed to sound recordings in the late fifties and sixties. They will no longer get airplay royalties from their recordings. But these royalties are often their sole pension.

It’s not the government’s job to retroactively create a pension system specific to one field. What about the airline workers loosing their agreed upon pensions? I don’t see governments stepping into make airlines pay these workers for every plane they helped run.

The irony is the Gowers Report on Intellectual Property conducted in the United Kingdom found that extending copyrights would be more harmful. The writer of the report, Andrew Gowers, later added that he thought copyrights should be lessened.

The United States had its own copyright laws extended in the Copyright Term Extension Act of 1998.

Ralph Koster outlines the tangled web of patents covering the popular world of music-based video games.  A patent thicket describes when several patents cover a single product, owned by several different groups.  Music based video games like Guitar Hero and Rock Band are finding themselves mixed up in a web of lawsuits.  First Konami is suing Harmonix for patents on music games, even though Harmonix has its own assortment of music game patents (including a patent on a “game controller simulating a musical instrument”).  Konami previous made GuitarFreaks and is looking to get back into the music game genre since Harmonix help make it such a success (more than Konami ever did).

Let’s not forget Red Octane and Activision, the team still responsible for Guitar Hero (which Harmonix headlined before getting bought by MTV). They’ve been licensing patents from Konami while getting sued by Gibson who also has patents on music games even though they sold likeness rights to the game for toy Gibson guitars. And let’s not forget Harmonix had sued Activision over unpaid royalties (now bargaining instead).

All the lawsuits shows none of this is about innovation, but is about greed and strong arming bargaining positions for more licensing fees.  That’s not what the patent system is supposed to be for.  The more these companies fight over music game patents, the worse consumers will be as the games will be more expensive, if they can even afford to be made.

This week a french court ruled eBay had to pay $63 million to Louis Vuitton for not doing enough to prevent counterfeit goods on its website.  eBay is even liable for users selling legit products because Vuitton claims no one can resell its products.

This ruling makes eBay responsible for the actions of its users.  One of the only good parts of the United States’ DMCA are the Safe Harbors which means service providers, like eBay, cannot be held responsible for what its users do.  This allows websites and ISPs to focus on providing services and goods for users without worrying about legal responsibility if things are taken out of hand.  France doesn’t have the same protection.

The problem is somehow eBay is expected to know what’s counterfeit and what’s real.  A similar argument is being made against YouTube over copyright, claiming its too much work for copyright holders to police the site so YouTube should do it itself.  How is eBay supposed to know what’s allowed to be sold and what isn’t?

The upcoming G8 summit has many important issues to discuss - climate change, world poverty, and file-sharing. That’s about it. Everything else is fixed.

On topic for the G8 is the secret (yes, secret) Anti-Counterfeiting Trade Agreement (ACTA) that only became public knowledge after details were posted on WikiLeaks.  The ACTA is a new treaty being written completely in secret for the purpose of restricting international piracy, allegedly allowing border security to check your iPod for illegal downloads, bring criminal charges against file-sharers, and require ISPs to police their networks.  While the public and consumer groups have not been privy to the treaty negotiations, a RIAA got a chance to submit its wishlist.

Aside from the improprieties of privately writing legislation, why is the G8 taking the time to prop up one industry’s unwillingness to adapt to the internet.  As I’ve written before, the entertainment industry does not have a right to revenue.  It’s their job to find business models that work, not the government’s.

The entertainment industry has pushed many copyright requirements into trade agreements with other countries (often falsely referred to as free trade).  The argument is these laws are needed to encourage innovation and content creation when in reality, these laws only help current copyright holders, hampering development in other countries who now have to spend money policing their citizens.

While several countries around the world waste time spoon feeding copyright holders, I’d have hoped the G8 wanted to at least pretend it cared about helping solve the world’s important crisis, of which their are many. It’s even listed first on the official website, “protection of intellectual property rights.” Piracy is not a world issue, even if the revenue losses the entertainment industry makes up were true.  That’s because it’s not the government’s job make you money - that’s your job through innovation and competition.  The G8 should try dealing with the food crisis, climate control, oil prices, genocide, poverty, human rights, and terrorism to name a few.  Of course, the U.S. attorney general says piracy funds terrorism.  Yeah, that’s convincing.

[Via CustomPC]

The judge presiding over the Viacom vs. YouTube case has ruled Google must hand over IP addresses and user names of its users and a list of the videos they watched, whether on YouTube or embedded on other sites (an estimated 12 terabytes).  Viacom is asking for this information to prove YouTube deals the majority in infringing material.

The result of this ruling is a privacy nightmare.  The Electronic Frontier Foundation has argued the judge’s ruing violates, ironically, the Videotape Privacy Protection Act that says the government can’t snoop your rental history (library books are fair game).  Google, however, has argued before that IP addresses aren’t personal data because they aren’t attached to a single person, says Google “in most cases, an IP address without additional information cannot [identify a user].”

Unfortunately, the IP address can get you pretty close.  It identifies the computer and location, including households and laptops.  The result isn’t just embarrassing users who watched far too much Dog on Skateboard videos.  It’s what does Viacom, the RIAA, and MPAA do with this list once its public.  Most of their effort in suing customers was finding the IP addresses.  Now Google’s handing them over on a silver hard drive.

Viacom obviously wants to analyze Google’s data itself, ignoring a study by Vidmeter.com that found copyrighted materials accounting for a fraction of YouTube viewership.  Based on their sample of more than 1.5 billion views of 6,725 videos, 9.23 percent were taken down.  Those remove videos accounted for only 5.93 percent of views.  You can read the full study here.  Viacom itself accounted for 2.37 percent of of views, the highest of for all content owners.  How they monetize that to $1 billion would be magic.

[Via Mathew Ingram}

The Associated Press has been kind enough to give bloggers more a week’s worth of posts with all its antics bullying websites and charging people for quoting more than 4 words. After several instances have shown the A.P. quotes blogs (without links), the A.P. decided to quote another blog once more for old times sake. They decided to quote TechCrunch, for irony’s sake, in an article about all the brouhaha over their own anti-quoting policy.

TechCrunch’s Michael Arrington announced he sent the news wire a DMCA takedown notice and a bill for $12.50, according to the organization’s own pricing chart for quoting 22 words from his post. Arrington describe’s his actions:

Am I being ridiculous? Absolutely. But the point is to illustrate that the A.P. is taking an absurd and indefensible position, too. So I’ve called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50 with that letter, which is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles.

Kudos to Arrington for standing up for bloggers and fair use.

Update 11:48 a.m. - The A.P. released a statement this morning saying the matter between it and the Drudge Retort, the original target of DMCA takedown notices, is closed.  No details about what was actually discussed.  Just move on, nothing to see here.  Let’s see how that works for them.

As part of my now ongoing series picking on the Associated Press, numerous examples of the organizations hypocrisy are coming to a broil.

The Associated Press is demanding bloggers follow guidelines on how to cite A.P. articles, requiring payment if even 5 words are copied. Michelle Malkin offers some magic math to see how much the Associated Press owes her for plagiarizing her blog posts.

Malkin finds A.P. articles from April and May quoting her posts, without providing links back. Malkin also reports the A.P. quoted the blog Patterico on Monday, the same day they were outlining their pay-for-fair-use program.

And both times the A.P. didn’t provide links back (print mentality), unlike us generous bloggers. Both Malkin and Patterico are kind enough to link to the A.P. articles plagiarizing them. I’ll stick with linking to just the blogs.

One theory about the A.P.’s attack on bloggers is it’s posturing against its own customers; newspapers who might realize they don’t need the A.P. anymore. The A.P. was formed to help local papers share reporting resources to cover major, national stories, but on the internet, the A.P. has become competition to these same papers. Suddenly, one user can see the same A.P. story on a dozen websites. Dorian Benkoil writes:

[Cleveland Plain Dealer Editor Susan Goldberg] said she was no longer reliant on The Associated Press for her stories from the region but instead was getting the original versions direct from the other sources around the state rather than paying “a big chunk” of her budget, about $1 million for rewritten AP stories. Picking up directly, on the Web, and putting other papers’ stories directly in the newspaper was also better quality, she said, and readers were noticing:

“I mean, we’ve always had access to news from all over the state. It was just, you know, it went through the AP mill. I frankly think we’re getting better, more distinctively written stories because they’re not going through the AP mill.”

Steve Boriss writes how the A.P.’s stance against linking is a sideways attack to prevent newspapers from just summarizing and linking to A.P. stories instead of paying for them.

Newspaper trying to cut its costs could theoretically drop its AP membership, keep its exclusive content to itself, and start each big story “According to the AP,” lifting as many words as possible then paraphrasing the rest. By cracking down now to limit the number of lifted words, the AP is making the price for defecting members higher.

Basically, the Associated Press, a non-profit organization formed to benefit the United States’ newspapers, is worried about its solvency and longevity (as it should be) and doesn’t want to evolve - it wants to maintain its cushy position of power. Unfortunately, this short term thinking is going to backfire as newspapers and other wire services, like Reuters, pioneer new web-friendly business models leaving the A.P. where it is - obsolete.