Easton on TPP and copyright

November 12th, 2015 at 10:00 am by David Farrar

Brian Easton writes at Pundit:

The stupidest thing said about the TPP deal – thus far – is the claim that it does not reduce New Zealand’s sovereignty. Of course it does. Agreeing to it will mean New Zealand will not be able to do things it currently can do. How important this reduction in sovereignty is is a proper matter for assessment for there are gains as well as losses.

Every international agreement is a loss of sovereignty, in that you agree to do something or not do something. An international agreement on climate change is a huge loss of sovereignty – it may partially dictate economic policy for the next 20 years or so. So the sovereignty argument is silly.

Does extending copyright to 70 years after death make sense? How many authors are mindful that their works of genius will be of benefit to their great-great-grandchildren whom they will never meet? Did the announcement of the twenty-year extension result in any writers getting onto writing that novel which previously they had not bothered with? (I don’t even agree with 50 years. There is a view, including among some prominent American economists, that the period should be no greater than 20 years after death; I think that is to deal with publisher stocks at the time of the demise.)

I’m one of those with think it should be life + 20.

Apparently New Zealand was opposed to the extension to 70 years, but Japan and the US already have domestically legislated it as a result of corporate pressures and they insisted. Our negotiators had to give in, in exchange for other benefits (that beef access is really valuable), although we got some phasing in of the extension.

So if we think the TPP deal is to our advantage we are going to have to adopt the 70 years. But we can adapt policies to improve access to free information. Here is the beginnings of a list:

* the government should stop privatising the information it holds; yes it has sold-off some valuable data bases and their owners are charging like wounded bulls for their use;

* the government should direct the agencies which manage its (publicly owned) data bases to stop profiting from them. They may charge for the costs of releasing the information, but only those costs. This would require some financial compensation to the agencies who may well be reluctantly charging but need the cash because of government meanness;

* the government should set up a fund to purchase private data bases putting them in the free public domain;

* the digitisation project – placing public records in the digital domain – needs more funding.


I like these ideas.

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Happy Birthday freed

September 25th, 2015 at 6:55 am by David Farrar

Stuff reports:

In a stunning reversal of decades of copyright claims, a federal judge in Los Angeles has ruled that Warner/Chappell Music does not hold a valid copyright claim to the Happy Birthday To You, song.

Warner had been enforcing its copyright claim since it paid US$15 million (NZ$23m) to buy Birch Tree Group, the successor to Clayton F. Summy Co., which owned the original copyright. Royalties on the song bring in about US$2 million (NZ$3.1m) a year for Warner, according to some estimates.

Judge George H. King ruled on Tuesday (Wednesday, NZ time) that a copyright filed by the Summy Co. in 1935 granted only the rights to specific arrangements of the music, not the actual song itself.

Tuesday’s ruling means that the song is now considered a public work and is free for everyone to use without fear of having to pay royalties, according to a statement from the plaintiffs’ attorneys.

A good example of the need to reform copyright law. The maximum term of copyright should be the life of the author + 20 years.


Crampton on copyright

July 22nd, 2015 at 9:00 am by David Farrar

Eric Crampton writes:

Australia National University’s Dr George Barker suggested this week that New Zealand could do well by strengthening its copyright legislation. He warned against the fair dealing exceptions that have crept into the law and asked, “Why not have copyright law like property law – i.e. it lasts forever?” 

That is a good question.

Eric is being generous. I think it is a stupid question. But it allows a good answer from Eric:

Five years ago, Larrikin Music, who bought the rights to an old Australian folk song, sued Men At Work for including an 11-note flute sequence from it in their 80s-hit, “Down Under”. Where Men At Work had intended homage in its celebration of all things Australian, Larrikin, and the law, saw copyright infringement. 

But does that really go far enough? If an 11-note sequence counts as infringement, how much do modern artists owe Pachelbel’s descendants? The four-chord sequence making up the core of his Canon in D has been repeated in dozens, if not hundreds, of subsequent songs. Should evidence produced by Australia’s Axis of Awesome be used in copyright lawsuits by anyone who can document that, ten generations back, Johann Pachelbel was a great-great- grandfather? It seems absurd.

Even from the perspective of a profit-seeking artist, copyright is a double-edged sword. Stronger copyright both increases the rewards from having produced a piece of work and increases the cost of creating new works. Artistic works feed off each other. New works build on older traditions, reinterpreting old folk tales and old folk tunes for new generations. The Brothers Grimm collected and published older folk tales like Cinderella and Sleeping Beauty in the 1800s. In the 1900s, Walt Disney brought those stories to life in a new form. In the 2000s, well, it is hard for new innovation to occur because copyright law, at least in the United States, has frozen the usage of most important works produced since 1923. 

Why should copyright be limited? Because current creators draw on a global commons in their artistic creations. And future generations of artists deserve a commons too.

A good answer indeed.

I think copyright should apply for the life of the creator plus 20 years. That gives an incentive to innovate, but provides a commons for our future.

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Some alternatives to global mode

July 2nd, 2015 at 12:00 pm by David Farrar

If you wish to be able to pay someone for the content you consume, and were reliant on global mode, here’s a few alternatives.

  1. UnoTelly has a one month free trial for NZers
  2. Hola – takes 30 seconds to install
  3. Fast VPN
  4. Hotspot Shield
  5. Unblockus

I use Hola – it is great, and free.

UPDATE: Read comments below about Hola. May be worth avoiding.

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Global Mode lawsuit settled

June 24th, 2015 at 12:00 pm by David Farrar

NBR reports:

The “Global Mode” case has been settled in favour of the big media companies.

A notice posted this morning to the NZX by Sky TV reads, in full: “The legal proceedings against “Global Mode” service providers have been settled. As a result, from 1 September 2015, the “Global Mode” service will not be available to any person for use in New Zealand.”

This is a pity, as it would have been great to have got a court ruling on whether circumventing geo-blocking technology is illegal. It would have had global ramifications.

My take: this is a victory for the old media companies but really only a moral one. Global Mode was unique worldwide in that it covered every CallPlus and Slingshot customer, without them having to do anything but there are still lots of easy ways for people to access geo-blocked sites. …

And perversely, had they lost, at least the big media companies would have had a legal decision confirming what everybody already knows: that in the age of streaming video services, there’s no such thing as an exclusive local license any more – and that the price Sky TV and others pay for local rights should reflect that.

I agree that this is not much of a victory for the broadcasters. It takes around 20 seconds to install a plugin to get around geoblocking, so people will still circumvent. And as Keall says, if they had lost in court, they could negotiate lower fees from rights holders. Now they will still pay inflated fees for theoretically exclusive content, but still have people directly accessing it from overseas sites.

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Copyright and the Internet

May 1st, 2015 at 4:19 pm by David Farrar

A very useful paper by Susan Chalmers on the issues around Copyright and the Internet. It covers:

  • temporary copy rights
  • text and data mining
  • APIs
  • Geoblocking
  • User-Generated Content

The Government is due to soon commence a review of the Copyright Act. I hope it will be a first principles review that will look at whether the law should focus on use rather than copying.


The geo-blocking lawsuit may be a good thing?

April 22nd, 2015 at 12:00 pm by David Farrar

The Herald reports:

For two years, before Netflix’s New Zealand launch and Sky’s Neon streaming offering, a clutch of internet service providers, including Slingshot and Orcon, have provided Global Mode – technology allowing customers to watch programmes on overseas video streaming sites, sometimes months before they are shown by New Zealand broadcasters.

In contrast to tech-savvy youngsters’ use of torrenting sites and other shady methods to “unblock” trending programmes in the United States or Britain, Global Mode came with at least a veneer of legitimacy. While the tool is offered free, viewers still must subscribe to the overseas screening site – such as US Netflix or BBC iPlayer – satisfying customers with scruples that the content creator isn’t losing out. Nor does it require technical smarts: there’s no software to download or configurations to change.

I don’t use Global Mode, but I do use Hola to allow me to subscribe to Netflix in the US, so that I am paying someone for the content I am watching.

Now, broadcasting behemoths TVNZ, MediaWorks and Sky have joined forces with Spark (which both supplies broadband and on-demand product Lightbox) in a bid to squash the upstart. On April 2, they sent “cease and desist” legal letters to BNS and its customers giving them until Wednesday to close the service down. Some smaller internet providers folded; BNS and Call Plus (owner of Slingshot and Orcon) stared them down. Court papers are due to be served and, to no one’s surprise, Hollywood studios are joining the action.

I an understand that the broadcasters are not happy that they pay global content providers for an exclusive licence for NZ, and they find out it isn’t that exclusive.

Big Media say the technology breaches exclusive rights licensing agreements between overseas content-holders and local broadcasters. They claim this breaches copyright law; that the streaming rights of offshore providers such as Netflix US, Hulu, Amazon Prime and BBC iPlayer do not extend to New Zealand.

It is far from clear it does break copyright law. The argument is that people who use global mode are just doing the equivalent of parallel importing – something the NZ Parliament has specifically legislated to be legal.

Slingshot chief executive Taryn Hamilton says internet viewing options make the broadcasting rights model of selling the same product multiple times in different territories “completely out-of-date. The music industry were kicking and screaming about this a decade ago; they wised-up and changed their business model and now there’s a thriving economy for music.

“The broadcasters need to go back to the rights-holders and say exclusive geographic content is a failed model.”

I agree.

And this is where the lawsuit may be useful. If the broadcasters lose the lawsuit, then it will have global reverberations. It will be a clear court ruling that someone with rights to one country can’t stop people dealing with people with right’s in another country. Just like Whitcoulls can’t stop you buying off Amazon.

If the broadcasters lose, then they can go back to the rights-holders and say our rights are no longer exclusive. You have no legal capacity to make them exclusive, so all we’re going to do is pay you for non-exclusive rights. And this could set off a global change in breaking down the idea of being able to make rights exclusive by country in an Internet connected world.

So the broadcasters may win, even if they lose.

What if the broadcasters win?

Probably not much. The ISPs who use global mode will stop offering it, but most of their customers will then either use individual services such as Hola, or VPNs, or just simply go from paying for content to torrenting it. The one thing they won’t do is say “Oh I’m going to wait four months to see my favourite TV show, once an exclusive holder in NZ decides I can see it”.

So I think a loss for the broadcasters will be even better for them than a win.

A win for the broadcasters will be bad for the ISPs, but not affect end users much.


A geo-blocking lawsuit?

April 4th, 2015 at 10:00 am by David Farrar

The Herald reports:

Entertainment and television players Spark, MediaWorks, SKY and TVNZ have fired a warning shot to Slingshot, Orcon and Bypass Network Services, saying they are breaching copyright and operating outside the law by providing customers access to otherwise blocked international TV and movie services.

In a joint statement issued today, the four companies say they have sent the two telcos and others requests to cease the operation of “Global Mode” or similar services that get around the blocks stopping people in New Zealand accessing certain services. …

Slingshot’s Global Mode, for instance, has long allowed New Zealanders access to the US-version of Netflix, which only launched here last month.

The country’s biggest media players and Spark’s Lightbox television streaming service said “companies who set out to profit by marketing and providing access to content they haven’t paid for are operating outside the law and in breach of copyright.”

“We pay considerable amounts of money for content rights, particularly exclusive content rights. These rights are being knowingly and illegally impinged which is a significant issue that may ultimately need to be resolved in court in order to provide future clarity for all parties involved,” the four companies said.

I have some sympathy for the media companies. They have paid for the exclusive rights to content for NZ, and of course they will not like people accessing that content through companies in other countries.

However it is far from clear that giving people a work around geo-blocking is illegal. It would be a fascinating court case, if one occurs.

The problem for the media companies also is that even if your ISP doesn’t help you get around geo-blocking, individuals can do it very easily themselves. The Hola plugin for Chrome allows me to appear to be from any country in the world – and even better different countries for different sites. And it is free and takes 30 seconds to install.

Ultimately business models based on artificial separation of content rights by country, will not work in a global Internet world. The future will be selling content rights to global companies, who will sell in all countries.

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Has NZ caved on copyright in the TPP?

February 9th, 2015 at 3:00 pm by David Farrar

The EFF report:

New reports indicate that Trans-Pacific Partnership (TPP) negotiators have agreed to language that would bind its 12 signatory nations to extend copyright terms to match the United States’ already excessive length of copyright. This provision expands the reach of the controversial US Sonny Bono Copyright Term Extension Act (or the “Mickey Mouse Act” as it was called due to Disney’s heavy lobbying) to countries of the Pacific region. Nations including Japan, New Zealand, Malaysia, and Canada would all be required to extend their terms and grant Big Content companies lengthy exclusive rights to works for no empirical reason. This means that all of the TPP’s extreme enforcement provisions would apply to creative works for upwards of 100 years. …

These are the terms of the proposal, revealed by several leaks of the TPP Intellectual Property chapter: If the copyright holder is an individual, the minimum copyright term would extend to the lifetime of the creator plus 70 years after her death.

It is unclear if NZ has caved on just the length of copyright, or also on all the other issues in the intellectual property chapter. If it is the latter, that is truly bad as the US proposed text would be severely detrimental to the Internet, ISPs and users.

If they have only caved on the length of copyright, that is less bad but still undesirable. The current NZ law is for copyright to apply for life plus 50 years, and an extension to life plus seventy is not justified.

The reason we have copyright is to protect and encourage innovation and creative works. If there was no copyright at all, then we’d have few authors and movies. However no author or creator is encouraged to produce creative works by the possibility royalties will still flow 70 years after they die.

You could make a principled case that copyright should only apply for the life of a creator. However that could set up an incentive to kill authors to make their works public domain, plus if they have young children it is fair that royalties from their works should continue while their children become adults.

So I think a copyright term of life plus 20 years is what we should have. We should not be always extending the life of copyright to benefit some US corporations. Think if you could never put on a Shakespearean play without having to pay a large fee to the great great great great grand children of Shakespeare.

Copyright is an invented right, which seeks to balance the rights of creators and the rights of users. It is not an natural right such as free speech. It is an important intellectual property right, but extending the term to life plus 70 years will not benefit creators (they will be long dead). It will benefit a few large corporations.

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Eminem suing National

September 16th, 2014 at 2:59 pm by David Farrar

Eminem’s publishers have announced:

In proceedings filed today in the Wellington Registry of the High Court of New Zealand, Eight Mile Style, LLC and Martin Affiliated, LLC, the Detroit-based publishers of Eminem’s copyrights, are seeking damages for copyright infringement against the New Zealand National Party. The proceedings stem from allegations that unauthorised use has been made of Eminem’s Grammy and Academy Award winning song, “Lose Yourself”, in election campaign advertising run by the National Party in the lead up to the 2014 New Zealand General Election which is to take place on 20 September 2014.

Joel Martin, speaking on behalf of the publishers, said: “The claim we have filed alleges copyright infringement. Eminem’s publishers were not approached for permission to use any of Eminem’s songs for this campaign advertisement. It is both disappointing and sadly ironic that the political party responsible for championing the rights of music publishers in New Zealand by the introduction of the 3 strikes copyright reforms should itself have so little regard for copyright. We do not hesitate to take immediate action to protect the integrity of Eminem’s works, particularly where a party, as here, has sought to associate itself with Eminem and his work.”

I guess it will come down to whether the song used by National was altered enough to be considered a new work.

Personally I think parties are best to avoid music that even slightly resembles an existing song.

UPDATE: The Herald reports:

In a statement, the National Party said it completely rejected the allegations the music used in its early campaign advertisements had infringed the copyright of any artist’s work.

“The National Party purchased the music in question from recognised production music supplier Beatbox, based in Australia and Singapore. The music was originally published by Spider Cues Music, a well-established Los Angeles-based provider of music to the film and entertainment industry.

“As with all works licensed by the Beatbox library music service, the National Party was assured the music in question did not infringe any copyright and was an original work.

“Furthermore, the music license and fee were arranged through the Australasian Performing Rights Association and Australasian Mechanical Copyright Owners Society (Apra/Amcos), who act as agents for Beatbox in Australia and New Zealand.

“These organisations exist to protect the rights of artists.

“Regardless, as our advertising was moving on to different material at the time of the complaint, over two weeks ago, we were able to accommodate the complaining artist and undertake not to continue using the track. However, this has not satisfied the complainant.”

The National Party said the song had been licensed multiple times both in Australia and New Zealand without issue or complaint.

That’s a pretty strong defence. Looks like it could be a beat up.

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Australian copyright reform fails

September 13th, 2014 at 7:01 am by David Farrar

Stuff reports:

“Unanimous” opposition to the Australian government’s proposed copyright law changes will force it back to the drawing board to tackle online piracy, Communications Minister Malcolm Turnbull says.

Representatives from both sides of the online piracy debate – including the telecommunications companies and rights holders – have warned the changes to copyright law outlined in the government’s discussion paper on online piracy are too broad and could have negative unintended consequences. 

Turnbull hosted a lively public forum in Sydney on Tuesday night that included panellists from the film and television sectors, internet service providers and consumer groups.

The government has proposed creating a new legal framework – known as “extended authorisation liability” – to make internet service providers more accountable for their customers’ illicit downloading.

A stupid idea.

Australian Performing Rights Association CEO Brett Cottle said that despite the availability of affordable online music streaming services such as Spotify an estimated 3 to 3.5 million Australians use torrent services at least once a month to download music without authorisation. 

But a study commissioned by Spotify, released on Tuesday, found music piracy had declined by 20 per cent in Australia thanks largely to the availability of legal streamings services. 

Good – heading in the right direction.


A fascinating copyright case

August 11th, 2014 at 12:00 pm by David Farrar


The Herald reports:

Staring straight into the camera, lips pulled back into a grin – it could be regarded as a perfect “selfie”.

The series of “self-portraits” of a crested black macaque monkey were shared around the world over the internet and on social media.

But the now famous images are at the centre of a bizarre dispute over who owns the pictures.

David Slater, the British nature photographer whose camera captured the picture, has asked Wikimedia, the organisation behind Wikipedia, to remove the image.

He claims its inclusion in a media library that allows other websites to use it free of charge is harming his ability to make a living.

But Wikimedia has rejected his request, claiming the macaque that pressed the shutter on the camera owns the copyright of the image, not Mr Slater, who now faces a legal bill estimated at 10,000 ($19,900) to take the matter to court.

He said: “If the monkey took it, it owns copyright, not me; that’s their basic argument. What they don’t realise is that it needs a court to decide that.

What a fascinating case. Copyright generally rests with the person who takes the photo, unless they are being paid by someone else to take it. So who owns the copyright when a non human takes the photo?

Does the fact the photo was taken on his camera give him some secondary claim to copyright?

Would it matter if he had encouraged the monkey to take the photo? Could he argue he had creative control?


Hollywood wants DIA child porn filter extended to copyright

July 4th, 2014 at 1:00 pm by David Farrar

3 News reports:

It has been revealed top Hollywood studios asked for access to a controversial government-run internet filter – so they could stop Kiwis accessing pirate and torrent websites.

RadioLIVE reported the Motion Pictures Distributors Association wanted access to the Internal Affairs child pornography filter, so they could block access to copyrighted material.

But they were knocked back by the Government and Internal Affairs Minister Peter Dunne says that it is partly because internet service providers refused.

“They were not prepared to agree to that extension and in any case it would have shifted the mandate somewhat from DIA’s primary focus on preventing sexual abuse of young children.”

The child pornography filter is a voluntary one.

It is good to see the Government knocked the request back. If I want a filtered Internet, I’d live in China.

When the voluntary DIA filter was introduced, many of us were nervous that one day other groups would try to extend it beyond the narrow remit of child abuse images, and try to have it block all material that different groups want blocked. As it is voluntary, that can’t happen easily – ISPs would stop using it. But beware the day when a political party proposes making it mandatory.

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A Mega lawsuit

April 9th, 2014 at 11:00 am by David Farrar

Stuff reports:

Internet Party leader Kim Dotcom is facing a new lawsuit in the United States from six Hollywood film studios.

They claim in their suit the Megaupload founder “facilitated, encouraged, and profited” from illegal file-sharing on the site.

The Motion Picture Association of America (MPAA) filed the suit on behalf of the studios this morning (NZ time).

The lawsuit was filed by Twentieth Century Fox Film Corporation, Disney Enterprises, Paramount Pictures Corporation, Universal City Studios Productions, Columbia Pictures Industries, and Warner Bros Entertainment in the US District Court for the Eastern District of Virginia.

The US Government is already seeking to extradite Dotcom to face charges of copyright conspiracy, racketeering and money-laundering allegedly carried out by his file-sharing company, Megaupload.

It’s an interesting move. Does that signify concern over whether the criminal case will succeed, or was this always planned?

Dotcom is specifically named in the suit, under his most famous name as well as Kim Schmitz and Kim Tim Jim Vestor.

Kim Tim Jim Vestor???

According to the Government’s indictment, the site reported more than $175 million (NZ$203.4m) in … proceeds and cost US copyright owners more than half a billion dollars.

The studios allege Megaupload paid users based on how many times the content was downloaded by others. But the studios allege the site didn’t pay at all until that content was downloaded 10,000 times.

This is a key detail in both the criminal and civil lawsuits. Other file-sharing websites do not pay people based on how many downloads they get for content they upload. This is how they allege they incentivised copyright infringement, rather than just provided a file sharing platform (such as the new Mega).

This does not mean the lawsuits will be successful. But it is a key factor in why Megaupload was targeted, and not other file-sharing sites. If someone can earn say $10,000 by uploading the latest movie release, well that is a pretty good incentive to do so.

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The Google Books Judgement

November 22nd, 2013 at 1:00 pm by David Farrar

Google recently won a court case the US Society of Authors brought against it for their Google Books service. The Society of Authors claimed that Google’s scanning in of 20 million or more books without the permission of the rights holders was a breach of copyright. Google argued that it was fair use as they didn’t allow anyone to download a copy of the book, just search for and quote extracts of up to quarter of a page.

The details of what Google does to protect a book i its entirety being copied is interesting, as are the reasons the Judge gave for his decision which was a strong argument for the benefits of fair use.

For books in “snippet view” (in contrast to “full view” books), Google divides each page into eighths — each of which is a “snippet,” a verbatim excerpt. …

Google takes security measures to prevent users from viewing a complete copy of a snippet-view book. For example, a user cannot cause the system to return different sets of snippets for the same search query; the position of each snippet is fixed within the page and does not “slide” around the search term; only the first responsive snippet available on any given page will be returned in response to a query; one of the snippets on each page is “black-listed,” meaning it will not be shown; and at least one out of ten entire pages in each book is black-listed.

So even if one went through an entire book trying to use words found in it, to get an electronic copy, you would end up with 10% of pages missing and 12.5% of the other 90% of pages missing. Anyone wanting an electronic copy would just scan a hard copy in themselves1

The Judge lists the benefits of Google Books:

  1. Google Books provides a new and efficient way for readers and researchers to find books.  It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears.
  2. Google Books has become an essential research tool, as it helps librarians identify and find research sources. Google Books has become such an important tool for researchers and librarians that it has been integrated into the educational system — it is taught as part of the information literacy curriculum to students at all levels
  3. Google Books greatly promotes a type of research referred to as “data mining” or “text mining.”  Google Books permits humanities scholars to analyze massive amounts of data — the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time.
  4. Google Books expands access to books. In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books. Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices.
  5. Google Books helps to preserve books and give them new life.
  6. By helping readers and researchers identify books, Google Books benefits authors and publishers.

These benefits are a great list of why fair use is so important in copyright.

Also worth quoting the judgement on whether Google Books may serve as a market replacement for books.

Here, plaintiffs argue that Google Books will negatively impact the market for books and that Google’s scans will serve as a “market replacement” for books. (Pl. Mem. at 41). It also argues that users could put in multiple searches, varying slightly the search terms, to access an entire book.  (9/23/13 Tr. at 6).

Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

The argument that someone could use Google Books to get a free electronic copy is basically nuts. It’s impossible and even if i was not, would be far more effort than just scanning one in yourself.

To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. (Harris Decl. ¶ 7 (Doc. No. 1039)). Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. (Id. at 14-15). Indeed, both librarians and their patrons use Google Books to identify books to purchase. (Br. of Amici Curiae American Library Ass’n at 8). Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences.  Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of  on-line shopping, there can be no doubt but that Google Books improves books sales.

You have to wonder why the Society of Authors took this case? I know many authors who did not support their action. They were arguing against a service that helps generates sales for them.

I think it is just being reactionary. I guess once upon a time the Society of Authors probably opposed allowing libraries to lend books out, as they saw it as a threat also.

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The movie import ban

October 19th, 2013 at 8:56 am by David Farrar

Aimee Gilliver at Stuff reports:

Cinema owners will benefit from the extended ban on parallel imports of movies, but in three years retailers will be able to sell a movie on DVD at the same time it is showing in cinemas, under new law.

The Copyright (Parallel Importing of Films) Amendment Bill passed its third reading in Parliament this week. It reduces the ban period on parallel importation of films for commercial use from nine months from the international release date to five months for the next three years.

The ban allows the New Zealand copyright holder of a film to control when retailers are allowed to access copies to provide to consumers – otherwise, a movie could be sold on DVD by a retailer who had imported it from a foreign right-holder at the same time it was being shown in cinemas here.

It was initially set to lapse on October 31 but has been extended for three years in a reduced form to give cinema owners time to adjust, and convert to digital exhibition. …

Blogger David Farrar said the difficulty in buying content legally has helped create a generation of people who download unauthorised copies because it is the only way they can view what they want to, when they want to, and in the form they want to.

“Ultimately New Zealanders want to be able to purchase movies the same day as they can read reviews about them online.

“Any law that makes it harder for New Zealanders to purchase movies legally is likely to be reasonably ineffectual as people won’t wait five months or nine months to be able to buy a copy for themselves.”

The three-year extension may prevent new business models emerging because it gave an exclusive period for movie theatres, Mr Farrar said.

“Many New Zealanders could well be happy to pay say $50 to view a movie at home the week it is released, but there is no legal way for them to do so.”

The three-year ban, with a shorter time period, is an advantage, Mr Farrar said.

“It gives movie theatres time to plan for an era where they’ll be competing with online delivery of content.

“Some may struggle, but some may adapt well to the competition and focus more on making going to the theatre part of a better experience and a fun night out.”

As I said, I think it would be great if we can buy content in the format we want it, when we want it.


Guest Post: Gareth Hughes on copyright

October 8th, 2013 at 3:00 pm by David Farrar

A guest post by Greens MP Gareth Hughes:

London School of Economics on copyright.

A new report out by the London School of Economics busts some of the myths around copyright infringement and the laws passed that try to punish online file-sharing. 

The London School of Economics Media Policy Project has published a report entitled “Copyright & Creation: A Case for Promoting Inclusive Online Sharing”, which argues ‘The creative industries are innovating to adapt to a changing digital culture and evidence does not support claims about overall revenue reduction due to individual copyright infringement,’ and that a punitive approach risks ‘incentives for innovation and growth will be weakened.’

It’s a timely report that challenges the claims the music industry is at mortal peril from online file-sharers and that graduated response regimes like our Copyright (Infringing File-Sharing) Amendment Act, or more popularly known as the ‘Skynet Law’ are the best way forward to address the challenge of copyright infringement.

I am a Spotify premium subscriber and I just love being able to access a lot of the world’s music conveniently, portably and legally for a small monthly charge. It is one example where the music industry is innovating and adapting to the digital world profitably. The report notes in 2013, for the first time UK revenues for online music was higher than for CDs and vinyl combined as part of overall revenue growth. The report recommends a review of the UKs stalled Skynet-style law, the Digital Economy Act and that ‘a copyright enforcement model that is out of touch with today’s online culture will only supress innovation and dampen growth.’

Another recent paper, this one published from Australia’s Monash University on copyright enforcement also found graduated response or three-strike laws internationally, including New Zealand’s own ‘Skynet Law’ were not working. In New Zealand’s case the report found the law was hardly acting as an effective deterrent to reduce online copyright infringement and people were simply switching from Peer-to-Peer (P2P) file-sharing sites to other methods such as cyber-lockers to obtain content

The New Zealand Government unfortunately has decided to delay the anticipated copyright review and with more reports published challenging the effectiveness of graduated response regimes to copyright infringement as seen in our Skynet Law it’s time the Government reopened the copyright debate and let evidence set policy. I would much rather the Government put their energy into promoting legal content over punitive laws that stifle innovation and plainly don’t work.

The London School of Economics report is a very good read at debunking the myth of revenues dropping.

I wouldn’t rush to judgement on how the NZ law is working. The level of fines have been reasonably modest, and what I will be interested in is how many infringement notices in total got issued over a year, how many went to a second and a third strike.

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Sky and copyright and Netflix

October 3rd, 2013 at 10:00 am by David Farrar

Eric Crampton blogs:

It seems that the lawyers at Sky didn’t like my post on Netflix. They’ve not been in touch with me about it, nor did they get in touch with the folks at SciBlogs about it when I syndicated it there.

But late last week, the National Business Review asked if they could run it as part of their Weekend Edition. I agreed, as I always do. Shortly after it went up at NBR, I received an email from NBR’s Head of Digital saying that they’d had to pull the piece after a legal threat from Sky TV. Sky’s lawyer wanted excised from the article the instructions on how to access Netflix from New Zealand. In my piece, I linked to an Australian website providing instructions on how to access Netflix. I also included a postscript noting that Hola seemed to work very well.

So it is there anything wrong with telling people how to get around geoblocking?

First, note that New Zealand generally allows “parallel importation”. The New Zealand Government, in general, does not think that it is its job to enforce whatever exclusive dealing arrangements that some overseas manufacturer wants to enter into with a domestic distributor. There is a minor exemption on DVDs and films where you cannot import films for commercial distribution for a period of five months from the date that the film is first made available to the public. This lets the theatres get a run where international windowing delays release here relative to the US. However, the ban specifically allows import of legitimate copies for personal non-commercial use. It would be reasonable to read accessing Netflix for personal use as falling into this category, though note that I am not a lawyer. I discussed the temporary ban here. …

But, by my read of 226b, the variety of mechanisms described at this Australian site simply work to circumvent a system controlling geographic market segmentation by preventing playback in New Zealand of a non-infringing copy of a work. Netflix’s catalogue of films and TV shows in the US is non-infringing in exactly the same way that a DVD on sale in the US is non-infringing. And buying a DVD there, bringing it here, and watching it on a region-free DVD player should be as protected as subscribing to Netflix via something like Hola or Unblock-us. Maybe it violates the Netflix terms of service in the US, and Netflix could be justified in cancelling somebody’s account if they deemed such use to be in violation of their Terms of Service. I expect that bringing a Region 1 DVD here and watching it on a region-free player might violate the DVD’s Terms of Service as well. But a take-down notice based simply on the use of the word Hola or a simple description stating that installing Hola was really easy? Again, I’m not a lawyer; hopefully I won’t have to consult one. I’ll rattle a tip-jar if I do and if it winds up being at all pricey.

Getting around geoblocking actually allows you to pay for a copyrighted work. I think we should resist all geoblocking. If you want less piracy, then allow us to buy the content we want.

Any lawyers have a view on whether Eric’s original blog post does fall foul of the Copyright Act?

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August 29th, 2013 at 10:00 am by David Farrar

Stuff reports:

Price gouging by international software companies is undermining New Zealand businesses and is unfair on consumers, the Green Party claims.

A survey by the party of more than 100 software and hardware products found prices were about 40 per cent higher on average here than in the United States.

It has called for an inquiry by Parliament’s commerce committee into the pricing gap, similar to one recently carried out in Australia.

That inquiry found evidence last month that Australians were commonly paying more than 50 per cent more than Americans for digital goods such as software, music and computer games bought online.

Multinationals can vary their country prices by detecting prospective customers’ internet protocol (IP) addresses and directing them to different online store fronts, in a process known as “geo-blocking”.

The Australian inquiry recommended that the government amend the Copyright Act to make it clear that it would not be illegal to circumvent geo-blocking by disguising IP addresses.

It also went further, by recommending the government consider banning geo-blocking if that did not have the desired effect.

Both excellent ideas. We are, or should be, one global market.

Victoria University economist Toby Daglish, who is also a director at the Institute for the Study of Competition and Regulation, said there were three main reasons why prices were higher in New Zealand.

The first was the cost of shipping physical items, and the second was the existence of robust consumer guarantee laws that protected customers.

Lastly, the “elasticity of demand” meant that, while countries with large populations could increase sales by lowering prices, those with a small population were less responsive to price change.

“The extent to which they can get away with that is linked to the extent of how they can stop people from buying things and shipping them here from other countries.”

They charge more, because they can! :-)

Technology journalist Bill Bennett said many pundits scoffed when the Australian Government launched its inquiry, but it had proved quite successful.

“A lot of people said they weren’t going to get a lot out of it because there’s bugger all a government can do . . . but what happened in Australia as a byproduct was the Australian Government managed to negotiate $100m off their bill with Microsoft.

“By getting this stuff out in the open in public, it puts a lot of pressure on.”

Information Technology Minister Amy Adams has instructed officials to work with their Australian counterparts to understand how the findings there may relate to New Zealand.

Not sure we need an inquiry per se as would find the same as in Australia, but anything that highlights the problem and puts pressure on for solutions is probably a good thing.

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Copyright and book availability

August 2nd, 2013 at 11:00 am by David Farrar



Rebecca Rosen writes:

Last year I wrote about some very interesting research being done by Paul J. Heald at the University of Illinois, based on software that crawled Amazon for a random selection of books. At the time, his results were only preliminary, but they were nevertheless startling: There were as many books available from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.

Heald has now finalized his research and the picture, though more detailed, is largely the same: “Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

This shows the importance of getting the balance right with copyright. Imagine if books never ever entered the public domain?

Absolutely books should be subject to copyright for a significant period of time, to allow the author to benefit from them.

But the current lengths of copyright are life plus 50 years in NZ and life plus 70 years in the United States. Both are far too long.

I’m tempted to say that copyright should expire upon the death of the author. However people might start shooting authors in order to get their books for free :-)

I think it is fair to say the the family of an author shouldn’t suddenly have their income disappear, the moment the author dies. But ridiculous to have to wait 50 to 70 years for a book to go public domain. I would think 20 years is about right – long enough for any young children to be supported as they become adults, if say their author parent died suddenly.

What do readers think should be the term of copyright? Comment below and/or vote in the sidebar poll.


France drops three strikes

July 12th, 2013 at 7:00 am by David Farrar

The BBC reports:

France has halted an anti-piracy policy that threatened persistent offenders with internet bans.

A law passed by the previous government had let local courts suspend copyright infringers’ connectivity for up to a month if they were caught three times.

It was supported by the entertainment industry, but France’s current culture minister had said that she thought the penalty was “disproportionate”.

File-sharers still face fines of up to 1,500 euros ($1,923; £1,292).

The government added that it would now focus its efforts on sites that made money from offering illegally copied content rather than individual users.

Suspension is disproportionate. Good to see France call a halt to it.

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The Copyright (Parallel Importing of Films) Amendment Bill

July 8th, 2013 at 12:00 pm by David Farrar

The House has referred to a select committee the The Copyright (Parallel Importing of Films) Amendment Bill.

The Copyright Act has a provision that bans the parallel importation of films into New Zealand for nine months. This provision expires on 31 October 2013.

The bill proposed extending the ban for a further three years, but reducing the period of the ban from nine months to five months.

I think this bill moves the law in the right direction (a shorter ban period) but I’m not convinced we should have a ban at all.

Craig Foss in moving the bill said:

The Copyright (Parallel Importing of Films) Amendment Bill imposes a temporary ban on the parallel importation of films for commercial purposes for a period of 5 months from the date of the film’s first release to the public. A ban on parallel importing is necessary to enable cinemas to exclusively screen films for a limited period, before copies of films on formats such as DVD and Blu-ray are brought to the New Zealand market. Although many films are released in New Zealand cinemas at the same time as international releases, many films are delayed for several weeks or months due to factors such as seasonality, screen availability, profitability assessments, and competition with other films. Without a ban in place, parallel-imported copies of films could potentially be sold in competition with screenings in cinemas. This could potentially affect the viability of cinemas.

Two things occur to me.

The first is I am far from convinced that allowing DVD sales immediately would threaten the viability of cinemas. People choose to go an see a film at the cinema for a number of reasons – the big screen, the larger capacity, the night out, the better sound etc.

The second is why should we protect cinemas as a medium. Do we protect supermarkets from dairies? Do we protect record stories from open air concerts? Let consumers choose how they want to watch a movie I say.

I think the future is, or should be, that upon release consumers can choose where and how they watch a new movie – so long as they are willing to pay for it.

It may be that a digital copy of a new movie costs $50 for the first month, then $30 for the first five months and say $20 thereafter.

Also the ban on parallel imports for a period encourages unauthorised copies. If you can’t legally buy a copy of a film, then you are more likely to acquire an unauthorised copy.

Labour also backs this bill so it will pass:

Jacinda Ardern: Just to go back to the beginning, in 2003, as I understand it, Labour introduced a 5-year temporary ban that prohibited the commercial import of a film for a period of 9 months from the film first being made available to the public. There is a very explicit reason for this and it is very much based around the motion picture industry—in particular, our small cinemas that many of us may have frequented over the years. I particularly want to highlight the ones in some of our smaller towns and provincial areas that really do rely on the ability to at least get a first foot in the door when it comes to a release. The staging of releases is pretty important to remember: something that is released in the United States, for instance, that is timed around a school holiday period, does not naturally coincide with that period within New Zealand. So having that little buffer period for that industry, as it claims, is the difference between 165 jobs existing or not. Let us be really clear on that. That is work that PricewaterhouseCoopers has done on behalf of the industry to demonstrate that a loss of that window would have that effect.

Let us be clear, though: the industry does have to move with the times. Things are changing, and rapidly. So that is why, as I understand, this bill will put an expiry date of 2016. It also reduces the window from a period of 9 months, which is what we currently have, down to 5 months. That is a compromise that we feel very comfortable with. This is a message, I guess, to the industry that this is unlikely to be a tenable, long-term way of maintaining its ability to stay in front of the game in a digital age. This is, as it were, extra time for the industry to try to develop where it goes next, in the same way that the music industry is doing—and has started doing a very good job of it, I must add. So too does this industry have to start looking at that, and much more rapidly, as well. This bill will allow it the time to do that. It will allow those jobs to be retained while the industry works on how it tries to ensure that it remains viable in the future.

I agree with Jacinda that this bill is not a tenable long-term way of comping with the digital age. My concern is will we just see it get extended time and time again every three years? This is the second temporary ban. MPs should make very clear that this will be the last one.

You can submit on this bill up until 25 July. What do readers think? Should cinemas be able to have an exclusive period where only they can show a film?


Go Slingshot

June 25th, 2013 at 11:00 am by David Farrar

Stuff reports:

The country’s third-largest internet provider, Slingshot, is likely to be on a collision course with Hollywood after launching the Global Mode service, the Telecommunications Users Association says.

The service disguises customers’ internet protocol addresses and can make it appear as if customers live in the United States or Britain. That means Slingshot customers can access online services that are not available in New Zealand, such as online television service Netflix and the US shopfronts of online stores such as iTunes.

Slingshot launched Global Mode as a free option for its broadband customers, promoting it as a service that they would use if they were hosting overseas visitors.

What a great idea. It is so frustrating that some online retailers refuse to sell you material based on your IP address. For example, there is no legal way to purchase the US House of Cards in new Zealand.

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NZ copyright review

June 18th, 2013 at 12:00 pm by David Farrar

Susan Chalmers writes at ADSL:

The Copyright Act was to be reviewed five years after the 2008 amendments. Today, such review would also extend to the more recent Copyright (Infringing File Sharing) Amendment Act 2011. …

The acceptance by some Governments of digital copyright policies advanced by the rightsholder community would go to suggest that anachronistic conceptualisations of copyright remain deeply entrenched in law and policymakers’ thinking, and that how the Internet actually works does not. A good example lies in the aforementioned temporary electronic copy language, which is present in nearly all US free trade agreements.

This language likens a physical copy to a virtual one, which, if actually recognised, would become a problem for Internet Service Providers of all stripes. This is because Internet traffic is transmitted from point A to point B by making “temporary copies”. We can think of copying as how the Internet “breathes”.

Strictly applied, the right would pretty much make the Internet illegal. Approaches like this indicate that the way we are thinking about adapting copyright to the Internet is, as Professor Rebecca Giblin has put it, applying “physical world assumptions” to “software world realities”.

Doing this ignores the complexities of the Internet, and policies formulated in this way usually generate bigger problems and greater costs than those they are meant to alleviate.

Copyright laws come from the age where copying was a physical act, and it is the physical act that is regulated. This does not work well in a digital world.

This is in no way arguing against copyright as a legitimate intellectual property right. I argue that laws and policy should focus on the use, not the copying.

As part of normal practice, jurisdictions develop principles that help organise and direct their legislative reviews. For example, in reviewing exceptions and limitations to copyright, Australia recently released its Copyright and the Digital Economy discussion paper. Listed therein are five framing principles for reform: “1) acknowledging and respecting authorship and creation, 2) maintaining incentives for creation of works and other subject matter, 3) promoting fair access to and wide dissemination of content, 4) providing rules that are flexible and adaptive to new technologies, and 5) providing rules consistent with Australia’s international obligations.” (Australian Law Reform Commission, “Copyright and the Digital Economy (DP 79)”, Discussion Paper, June 2013.)

They seem like good principles.

If we accept that there should be a review of New Zealand’s copyright law, then what should the guiding principles for that review be?

The principles listed above are all good and we would do well to use them as a base in developing our own set. Flexibility seems to be a highly desired characteristic of next generation copyright law. The traditional utilitarian principle behind copyright also remains relevant – that creators should be incentivised by reward in order to create works the public can consume. Copyright has always been a balance between the author and the public good.

Perhaps it is time to add another party to the balancing act: the Internet. Copyright policies, when they relate to online activities, are Internet policies too.

Given the importance of the Internet to modern society, it stands to reason that the impact on the Internet of copyright policies should factor into the equation. The best copyright laws and policies would work with the Internet, and not against it.

I look forward to the copyright review.

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The fair deal coalition

May 22nd, 2013 at 2:00 pm by David Farrar

Stuff reports:

Trade Me has joined 31 consumer and lobby groups from New Zealand and overseas in writing to Trade Minister Tim Groser to voice concerns about the Trans Pacific Partnership agreement.

The company is a member of the New Zealand-born umbrella group the Fair Deal Coalition, which was set up last year during the Auckland round of the negotiations to lobby against possible provisions in the yet-to-be-completed trade agreement.

The coalition fears the trade agreement could unduly strengthen intellectual property rights, for example by extending copyright by 20 years and introducing new controls on parallel imports. …

In its letter, the coalition asked Groser to reflect on the “variety of sectors” that stood to be adversely affected by such provisions. “As a group we are diverse, but we share one thing in common: we seek appropriately balanced intellectual property laws,” it said.

Trade Me spokesman Paul Ford said the firm backed the coalition because it was concerned the agreement could “result in a crappy deal for both Kiwi consumers and a decent chunk of the Trade Me community”.

“We reckon parallel importing is pretty important to New Zealanders as it means Kiwi sellers can source goods direct from licensed suppliers around the globe, so buyers get more choice and, with any luck, better prices too,” he said.

The Fair Deal Coalition has attracted support from advocates in six of the 12 countries which are party to the trade negotiations, including the United States, Canada and Australia.

The group’s founders include Consumer NZ, InternetNZ, the Royal NZ Foundation for the Blind and the Telecommunications Users Association.

I’m one of those involved in the Fair Deal coalition, and it is great to see it gain supporters in the major countries involved in the TPP.

I’m all for free trade deals, but that doesn’t mean I want a deal at any price, and I think the proposed US chapter on intellectual property is not balanced or a fair deal. I think the current NZ intellectual property laws are relatively well balanced and we should not agree to anything that would force a change to them. If enough countries stand firm on these issues, I am hopeful the US will modify its position. And to be fair to the US, they have already moved a considerable way by agreeing to writing exceptions to copyright restrictions into the text – a first for a free trade deal with them. But the current proposed wording is still not suitable.

Consumer NZ spokesman Hadyn Green said his group believed the trade deal’s documents had provisions “which may remove parallel importing in New Zealand”. That would mean retailers could no longer import copyright goods, from software to branded clothes, without the permission of the manufacturer, which Consumer NZ feared would push up prices for many products.

Bans on parallel importing work against free trade, and should not be in FTA.

A Foreign Affairs and Trade Ministry spokeswoman said last week that the parallel importing of copyright works had been raised in negotiations but there was no consensus among the negotiating parties on whether an agreement “should include specific provisions on this issue”.

Which hopefully means it won’t include such a provision.

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