18 May 2011

Who Wants To Dam Online Streaming?


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Image: Brownlee Dam by WaterArchives.org on Flickr

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Do you stream content from the Internet?
Could it be that you fall under the category of users involved in an illegal streaming? Well, if you do and are also identifiable as an US resident, this blog article may contain some bad news for you.
Why?
Because Victoria Espinel, Obama administration’s IP Enforcement Coordinator, has recently published a white paper on legislative recommendations that asks lawmakers to declare streaming a

Copyright Infringement

and hence a felony.
Not exactly the sort of good news blogs usually provide, huh?

When I first saw the story at Ars Technica, my first reaction was to ask

Who Needs A Change In Legislation?

Then I read the white paper and found that Ms Espinel’s recommendations very clear:

It is imperative that our laws account for changes in technology used by infringers. One recent technological change is the illegal streaming of content. Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work. Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws. To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.

It turns out that the current US copyright framework is to some extent ambiguous as to whether streaming should be considered a distribution or performance of a work. This ambiguity results in a loophole which Ms Espinel is now proposing to fill.

This is strange, because the US have ratified the

WIPO Copyright Treaty

(WCT) and implemented it by the Digital Millenium Copyright Act (DMCA). The US nevertheless omitted to introduce the so called “right of communication to the public” or also known as the “making available right” in their legislation. Ms Espinel would not have the problem now, had the Clinton administration taken care back in 1998.

Having said that, one might ask how the legislation of the

European Union

does classify streaming?

Well, the EU has also implemented the WCT and introduced the “making available right” in its Info Society Directive (2001/29/EC).
This means that the legislations of the single member states define streaming as either a broadcast (in the case of point to multipoint) or a communication to the public (in the case of point to point or the on demand use).

Either way and even though it is so popular among Internet users, (illegal) streaming falls foul of the law on copyright.

However, what is

Illegal Streaming

anyway supposed to mean?

Right holders speak of illegal streaming each time when their content is distributed, performed, broadcast or made available on the Internet without said right holders’ permission.

It seems, however, that streaming has become an important part of our online consumer behaviour. We consume content every day and the rise of new technologies has made this type of consumption quite convenient. The reason why some users are lured into illegal offerings basically lies in that they are not offered legally sound ones.

In that respect, right holders should reconsider their business models and keep pace with their “potential” customers and not attempt to dam the streaming instead.

What is your opinion on Ms Escivel’s recommendation? How is streaming regulated in your jurisdiction and what impact does this regulation have on illegal or lawful offerings?

4 January 2011

Warden calls DMCA for help against briskly Glider


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Blizzcon 2008photo © 2008 Oracio Alvarado | more info (via: Wylio)

I must take the chance to win World of Warcraft (WoW) players as readers of the Reguligence Weblog! Believe it or not, but in MDY Industries vs Blizzard Entertainment and Vivendi Games the US Court of Appeals for the ninth Circuit delivered an interesting decision that deals with some copyright aspect of this successful role-playing game. In particular, the Court had to determine whether MDY’s level-up enabling software called Glider infringed Blizzard’s copyright and other rights under DMCA’s sections 1201 et seq.

Everyone who has played either of Blizzard’s computer games knows that they are based on a so called “leveling-up“. The latter is both, desirous and quite time-consuming for players. Since Glider’s purpose is to play WoW for its owner and level him or her up, it represents an add-on computer game bot to WoW. On the grounds of their End User License Agreement (“EULA”) and Terms of Use (“ToU”) as well as on the introduction of Warden, an anti-bot technology, Blizzard served MDY with a cease-and-desist letter demanding that MDY immediately ceased selling Glider. As a response, MDY brought an action for declaratory judgment to establish that Glider does not infringe Blizzard’s copyright or other rights.

In the first instance the District Court for the District of Arizona found MDY liable for secondary copyright infringement, violations of DMCA §§ 1201(a)(2) and (b)(1), and tortious interference with contract.

However, the 9th Circuit reviewed de novo and found that

  • the ToU’s forbiddance against bots were covenants rather than copyright-enforceable conditions, hence MDY did not infringe Blizzard’s copyright, and
  • since Warden effectively controlled access to WoW’s dynamic non-literal elements, MDY was liable under § 1201(a)(2) with respect to WoW’s dynamic non-literal elements.

In spite of the above, the 9th Circuit denied MDY’s liability under § 1201(b)(1) for Glider’s circumvention of Warden since Warden did not effectively protect a right of Blizzard under the Copyright Act.

The Court reasoned this result with the textual differences between §§ 1201(a) and (b).

§ 1201(a)(2) prohibits the circumvention of a measure that “effectively controls access to a work protected under this title,” whereas § 1201(b)(1) concerns a measure that “effectively protects a right of a copyright owner under this title in a work or portion thereof.”

Accordingly, the 9th Circuit read § 1201 (a) as extending a new form of protection distinct from traditional copyright infringement, i.e., the right to prevent circumvention of access controls to copyrighted works.

Finally, why is this decision of a legal significance?

I suggest that we honour it for its clear-cut between § 1201’s two distinct types of claims.

Last but not least, it should read like a warning to all developers of computer game bots: creators of computer games are given an extra weapon to fight you!

 

Did you find this article informative, helpful or entertaining? If yes, do not forget to share it by pressing one of below buttons or to otherwise tell your friends about it!

16 December 2009

Would you still use Yahoo!, if you knew they sold your personal data at a fixed price?


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Have you got an e-mail account on Yahoo! or do you use any of the services, such as messenger, groups or Flickr, provided by the Sunnyvale company? You were certainly aware of Yahoo!’s privacy policy, weren’t you? What you most probably did not know is the fact that Yahoo! surveil your personal data and then offer them to law enforcement at a fixed price. Not bad, huh?

Cryptome, a website hosted in the US that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance got the ball rolling since it has obtained and made Yahoo!’s Compliance Guide for Law Enforcement available on its website. Seemingly, Yahoo! were not amused and served Cryptome with a takedown notice based on the US Digital Millenium Copyright Act (DMCA). Stretching copyright law for the purposes of preventing access to information is an interesting, albeit not novel, strategy.
By the way, this is the reason why the DMCA and, particularly, its Section 512 has come under criticism – it causes a so called chilling effect on free speech.

So long Cryptome has not complied with Yahoo!’s demand and is still hosting the document in suit. It starts to get exciting!