Unique collection of old TV culture put at risk by a heavy-handed copyright takedown system

Although copyright is mainly thought of as concerning books, music and films, it applies to other kinds of creativity in a fixed form. That includes apparently trivial material such as early commercial television programmes. These are important cultural artefacts, but unlike books, music or films, there are very few formal schemes for collecting and conserving them. This has led to members of the public undertaking the preservation of TV programmes on an ad hoc, unofficial basis. It’s great that they are doing so, but the informal nature of their collections means that they are exposed to serious threats from copyright, as the recent experience of The Museum of Classic Chicago Television makes clear. The Museum explains why it exists:

The Museum of Classic Chicago Television (FuzzyMemoriesTV) is constantly searching out vintage material on old videotapes saved in basements or attics, or sold at flea markets, garage sales, estate sales and everywhere in between. Some of it would be completely lost to history if it were not for our efforts. The local TV stations have, for the most part, regrettably done a poor job at preserving their history. Tapes were very expensive 25-30 years ago and there also was a lack of vision on the importance of preserving this material back then. If the material does not exist on a studio master tape, what is to be done? Do we simply disregard the thousands of off-air recordings that still exist holding precious “lost” material? We believe this would be a tragic mistake.

Dozens of TV professionals and private individuals have donated to the museum their personal copies of old TV programmes made in the 1970s and 1980s, many of which include rare and otherwise unavailable TV advertisements that were shown as part of the broadcasts. In addition to the main Museum of Classic Chicago Television site, there is also a YouTube channel with videos. However, as TorrentFreak recounts, the entire channel was under threat because of copyright takedown requests:

In a series of emails starting Friday and continuing over the weekend, [the museum’s president and lead curator] Klein began by explaining his team’s predicament, one that TorrentFreak has heard time and again over the past few years. Acting on behalf of a copyright owner, in this case Sony, India-based anti-piracy company Markscan hit the MCCTv channel with a flurry of copyright claims. If these cannot be resolved, the entire project may disappear.

One issue is that Klein was unable to contact Markscan to resolve the problem directly. He is quoted by TorrentFreak as saying: “I just need to reach a live human being to try to resolve this without copyright strikes. I am willing to remove the material manually to get the strikes reversed.”

Once the copyright enforcement machine is engaged, it can be hard to stop. As Walled Culture the book (free digital versions available) recounts, there are effectively no penalties for unreasonable or even outright false claims. The playing field is tipped entirely in the favour of the copyright world, and anyone that is targeted using one of the takedown mechanisms is unlikely to be able to do much to contest them, unless they have good lawyers and deep pockets. Fortunately, in this case, an Ars Technica article on the issue reported that:

Sony’s copyright office emailed Klein after this article was published, saying it would “inform MarkScan to request retractions for the notices issued in response to the 27 full-length episode postings of Bewitched” in exchange for “assurances from you that you or the Fuzzy Memories TV Channel will not post or re-post any infringing versions from Bewitched or other content owned or distributed by SPE [Sony Pictures Entertainment] companies.”

That “concession” by Sony highlights the main problem here: the fact that a group of public-spirited individuals trying to preserve unique digital artefacts must live with the constant threat of copyright companies taking action against them. Moreover, there is also the likelihood that some of their holdings will have to be deleted as a result of those legal threats, despite the material’s possible cultural value or the fact that it is the only surviving copy. No one wins in this situation, but the purity of copyright must be preserved at all costs, it seems.

Featured image by YouTube.

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Ebook pledge aims to protect libraries and authors from publishers’ growing abuse of copyright

There’s a whole chapter of Walled Culture the book (free digital versions available) devoted to the serious attack on libraries and their traditional functions that is being carried out by major publishers. The latter are using digital copyright law to take advantage of the shift to ebooks by moving from one-off sales to a recurrent licensing model. The Knowledge Rights 21 (KR21) group are also concerned by what is happening here:

As publishers have moved away from selling physical works outright to offering licences for access, exceptions and limitations in copyright law risk being overridden by licence terms.

Libraries have as a result lost their right to buy books, maintain their collections, and even undertake basic library functions such preservation and lending books between libraries. Issues such as publishers refusing to offer licenses, unsustainable prices many times higher than the that for the equivalent paper book or CD, titles not available digitally, and even loss of collection items purchased are not uncommon.

In order to combat this loss and protect libraries, KR21 has drawn up an ebook pledge:

calling on publishers to sign up and adopt a set of principles laid out therein, while of course continuing to support more user-friendly models, including open eBooks. We also call on libraries and consortia to adopt the eBook pledge principles when negotiating with publishers. By making these principles part of the agreements they sign, including the rights to acquire titles, engage in collection development, preserve collections, and lend to the public and other libraries, libraries can continue to be beacons for the dissemination of knowledge in the 21st Century.

The pledge itself consists of twelve elements, including:

To make all eBooks available to libraries to preserve and to lend to the public directly or via inter-library loan, as soon as they are available to the public.

To make all eBooks individually purchasable by libraries outside of bundles.

To offer pricing for the Digital File on a “one copy one user” basis that is the same or similar to the price of the paper copy of the book, where available.

To allow all registered users of the library to access eBooks onsite and off.

To not withdraw titles during the subscription period, and with at least 12 months prior notice to both libraries and authors, unless required due to an unforeseen legal reason.

To provide authors with appropriate remuneration for the lending of their works by libraries.

The last of these brings up an important point that I’ve not seen discussed elsewhere. Along with all the serious problems that many publishers are creating for libraries with the shift to ebooks, it turns out that authors too are suffering. As KR21 writes:

according to one study, many European authors of fiction and other trade titles are not paid royalties by their publishers for the licences sold to libraries.

Authors already get a pretty raw deal from publishers, and it’s unacceptable that the rise of ebooks seems to be exacerbating that. Any publisher that values authors and regards itself as helping to nurture culture, rather than simply feeding off it, should be signing up to the new Library eBook Pledge. Sadly, at the time of writing, few have.

Feature image by Knowledge Rights 21.

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Denmark’s new school course wants to brainwash children with the tired old lie that copying is theft

One of the copyright world’s key weapons is a constant barrage of propaganda about the alleged benefits of this intellectual monopoly, and of the supposed horrors of its infringement.  This is typically conducted through massive lobbying of politicians, funded using the copyright companies’ generous profits that could have been distributed to the poorly-paid creators that generate them.  There are also the general awareness campaigns, like the famously laughable “You wouldn’t steal a car” public service announcement and its parodies.  But such is the lack of any sense of proportion or decency in the copyright world, that it believes it also has the right to brainwash children with its dogma.  TorrentFreak has spotted another such effort, this time over in Denmark.  

There is an associated site, with the charming title “Are you a thief?” – an indication that this particular propaganda will be using scare tactics and attempts to frighten children with the prospect of being punished in the courts for downloading unauthorised copyright material.  Here is the central thesis of “Are you a thief” (all translations via DeepL):

Few people realize while consuming illegal content that it’s actually the same as stealing. It’s stealing directly from the people who produce TV, movies, series and sporting events for a living – and every time you do it, you’re breaking copyright law.

This is completely untrue, of course, even if the copyright industry parrots the idea endlessly.  Theft involves taking something from someone; downloading material involves making an additional copy – that is, not taking away, but adding.  Of course, there is then the argument that this is still stealing because the unauthorised version represents a lost sale.  But numerous pieces of research have debunked this simplistic claim.  Indeed, there is evidence that after downloading such unauthorised copies, people go on to buy official versions, thus boosting sales, rather than harming them.  Needless to say, none of these more subtle points are mentioned in the one-sided Danish presentation.  Instead, we get this weirdly moralistic take:

In the real world, we learn to control desire, postpone needs and resist temptation. This lesson also applies in the digital world. Stealing is wrong and punishable by law.

Again, the aim here seems to be frightening and shaming children by tapping into other frameworks of social control – what their parents tell them, what the church says etc. Alongside this tired old trope of “theft”, there’s a curious attempt at revisionism:

On the Internet, there are two kinds of Internet, one legal and one illegal.

We call the legal Internet the light web and the illegal Internet the dark web.

This is trying to conflate unauthorised downloads – something that the “Are you a thief?” site itself admits is common – with the much more obscure and dangerous “dark web” (aka Darknet).  Of course, most children will trust that equation, because they are taught to believe what they are told at school.  But it’s nonsense: downloading unauthorised material is nothing like navigating through the real Darknet.

What’s really depressing about the “Are you a thief?” site is not just its attempts to shame and frighten children into accepting unthinkingly copyright dogma, but the fact that the Danish state has allowed this, and is even supporting it financially.  It is deeply ironic – and sad – that the Danish Ministry of Culture is promulgating the copyright industry’s outdated and selfish views on creativity and sharing, when in fact they are the antithesis of modern, digital culture, as Walled Culture the book (free digital versions available) explains in detail.

Featured image by RettighedsAlliancen.

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Google’s “Web Environment Integrity” is an attack on the open Internet and user freedom

Back in July, Walled Culture wrote about a terrible proposal from the French government to force browsers to incorporate a list of banned Web sites at the software level, so that they simply do not open.  Now Google has a similarly awful plan to block certain browsers from being able to access a Web site, explained here by the Free Software Foundation (FSF):

Before serving a web page, a server can ask a third-party “verification” service to make sure that the user’s browsing environment has not been “tampered” with. A translation of the policy’s terminology will help us here: this Google-owned server will be asked to make sure that the browser does not deviate in any way from Google’s accepted browser configuration

That is, Google will get to decide whether your browser configuration is “worthy” of accessing a site.  If it isn’t, the site will simply refuse to send you pages.  Of course, Google dresses this up as being good for the digital world in all sorts of ways, including the following:

Users like visiting websites that are expensive to create and maintain, but they often want or need to do it without paying directly. These websites fund themselves with ads, but the advertisers can only afford to pay for humans to see the ads, rather than robots. This creates a need for human users to prove to websites that they’re human, sometimes through tasks like challenges or logins.

By an amazing coincidence, most of Google’s revenue comes from advertising…  However, the FSF points out other uses, one of which will be of particular interest to Walled Culture readers:

It will be used by governments to ensure that only their officially “approved” (read: backdoored) browsers are able to access the Internet; it will be used by corporations like Netflix to [enforce] further Digital Restrictions Management (DRM); it will be used by Google to deny access to their services unless you are using a browser that gels with their profit margin.

Copyright companies will gladly make use of this capability to enforce their DRM lockdowns.  Currently, they have no way to do that, however much they might want to.  Google’s idea of “Web Environment Integrity” is nothing of the sort: it is an attack on the freedom of the Web and all who use it.  It must be stopped and dropped.

Featured image by Stable Diffusion.

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After publishers, now recording companies want to stop the Internet Archive from sharing culture

Back in March, Walled Culture wrote about the terrible ruling by US Judge John G. Koeltl that the Internet Archive’s Controlled Digital Lending programme was not a fair use. The Internet Archive has said that it will appeal against the ruling, but in the meantime it has jointly proposed with the publishers involved an agreement for what limitations should be imposed on its ebook lending service. Under this agreement, the involved publishers’ commercially available books will be removed from lending. The Internet Archive reflects on the impact of the agreement:

Broadly, this injunction will result in a significant loss of access to valuable knowledge for the public. It means that people who are not part of an elite institution or who do not live near a well-funded public library will lose access to books they cannot read otherwise. It is a sad day for the Internet Archive, our patrons, and for all libraries.

However, in a small but important legal victory for common sense, Judge Koeltl has agreed to follow the Internet Archive’s reasoning in his consent judgment that the definition of a ‘covered book’ is limited to only “those books published by the four publisher plaintiffs that are available in ebook form”, as the Authors Alliance explains.

But as if to confirm that enough is never enough for the copyright industry, the world’s largest record labels have now filed their own lawsuit against the Internet Archive and others for the Great 78 Project, which:

has been in operation since 2006 to bring free public access to a largely forgotten but culturally important medium [78 rpm records that are 70 to 120 years old]. Through the efforts of dedicated librarians, archivists and sound engineers, we have preserved hundreds of thousands of recordings that are stored on shellac resin, an obsolete and brittle medium. The resulting preserved recordings retain the scratch and pop sounds that are present in the analog artifacts; noise that modern remastering techniques remove.

The details of the lawsuit hinge on a slightly obscure aspect of US copyright law.  Over on Techdirt, Mike Masnick provides a good explanation of the recording companies’ argument.  The key point is that the Great 78 Project is preserving culture that is at risk of being lost because of the fragile nature of 78 rpm records.  It is not trying to produce perfect copies for casual listening – the digital versions include all the pops and hisses that are typical of old shellac records.  As Brewster Kahle, who set up the Internet Archive (and whose Kahle/Austin Foundation supports this blog) is quoted as saying:

When people want to listen to music they go to Spotify. When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.

Indeed, it seems highly likely that the Great 78 Project will encourage people to sign up to commercial streaming services in order to hear cleaned-up versions of records.  But the fact that this research project will help drive sales is irrelevant to the copyright world.  The latter’s key concern is control: it must always have the final say about how material is accessed.  A central theme of Walled Culture the book (free digital versions available) is that the copyright world has always preferred to harm itself commercially rather than to allow people to access and use copyright works as they wish, not as the companies have decreed.

If, as is sadly possible, the Internet Archive loses this lawsuit as it took a first hit in the one brought by publishers, there will be a number of serious consequences.  The most obvious ones: people won’t be able to listen to digital versions of rare recordings, which may be lost forever if the physical 78 rpm records break before they are digitised, and scholars won’t be able to study them.

Perhaps most worryingly, it’s possible that the recording companies will demand a massive payment from the Internet Archive for daring to share the joy of scratchy old recordings in this way.  At best, that would mean that the uniquely valuable services and activities of the Internet Archive would be curtailed.  At worst, it might even mean that what Mike Masnick rightly calls “the world’s greatest library”, and whose stated mission is providing “Universal Access to All Knowledge”, would be forced to close down completely.  If ever that terrible event came to pass – and let’s hope it doesn’t – it would stand as the selfish copyright world’s ultimate crime against culture and creativity.

Featured image by Internet Archive.

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China fully embraces Western copyright, and inevitably suffers from its ills

Modern copyright was invented in the West, with England’s 1710 Statute of Anne. But in the last few decades, the US and other Western nations have pushed for other parts of the world to bring in similarly restrictive laws.  This was purely out of self-interest, to allow Western copyright companies to extract their monopoly rents in non-Western markets as well as at home.  One country in particular has been pressured to bring in strong “protections” for both copyright and patents: China.  This was because it was perceived as a hotbed of intellectual “piracy” that needed to be tamed through the “civilising” influence of Western-style laws.

The export of the West’s obsession with enforcing copyright monopolies has brought with it the inevitable rise of copyright madness.  Here’s a good example of that, reported on the Sixth Tone site.  It involves a professional Chinese astrophotographer, Dai Jianfeng, and Visual China Group (VCG), China’s largest stock photo provider.  The latter demanded that Dai should pay compensation to VCG for publishing his own photos:

[Dai] posted on microblogging platform Weibo that VCG had accused his company of publishing 173 photos on its WeChat public account, in violation of copyright law. In its email, VCG demanded Dai either pay 51,900 yuan [about 6,600 euros]  as compensation, or pay 86,500 yuan [about 11,000 euros] as a “usage fee” for the 173 photos.

Dai expressed outrage in his Weibo post. “I’ve neither collaborated with VCG on any of these photos nor uploaded the photos to VCG, so how did VCG get the copyright?” 

VCG explained that it held the rights to the photos because it had licensed them from Stocktrek Images in the US, which in turn had licensed them from Getty Images.  But Dai claimed that he had received confirmation from Stocktrek Images that VCG does not hold rights to his photos.  Leaving aside the messy details of this situation, a Shanghai Zhenghan law firm that specialises in such copyright disputes confirmed that in theory a creator like Dai might have to pay to use their own works:

“The photographer would indeed need to pay the fee if VCG secured the licensing (of the photos) from their creator or copyright owner, and the licensing excludes the use (of the photos) by the creator or anyone else — meaning it was an ‘exclusive license’ under copyright law,” said Chen Shuyuan, a lawyer at the firm.

The Sixth Tone article provides further evidence that the copyright world in China is fast becoming as litigious as that in the West:

China has seen a growing number of intellectual property cases in recent years, with the Supreme People’s Court reporting last year an average increase of 24.5% each year since 2013. The government has rolled out measures to strengthen copyright protection, including the passage of the Civil Code in 2021, which increased punishments for copyright infringement.

The reality of that “strengthened copyright protection”, be it in China or in the West, is more time and money wasted on legal battles, and demands from companies that creators should pay for the privilege of using their own work.

Featured image by Visual China Group.

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The copyright industry’s obsession with pursuing alleged infringements borders on the pathological

As Walled Culture the book (free digital versions) details, for decades the copyright industry has lobbied consistently (and successfully) for more and harsher laws targeting alleged infringement. Against that background, it is hardly uprising that these laws are used on a massive scale every day. But some companies take this to extremes. Here, for example, is a story on Ars Technica from earlier this year:

In an attempt to prove that RCN (now known as Astound Broadband) turned a blind eye to customers illegally downloading copyrighted movies, the [film] studios subpoenaed Reddit seeking identifying information for specific users who commented in piracy-related threads. While some of the comments were posted in 2022, other comments were made in 2009 and 2014.

The lawsuit was originally filed in 2021, which means that the studios were demanding the names of people for posting a comment anonymously more than a decade ago. Fortunately, the judge quashed the subpoena, for reasons discussed in the Ars Technica post. Despite that clear defeat, the same film studios are back demanding:

“Basic account information including IP address registration and logs from 1/1/2016 to present, name, email address and other account registration information” for six users who wrote comments on Reddit threads in 2011 and 2018.

Once again, the film studios are obsessing about something somebody wrote 12 years ago. Aside from the fact that the studios are repeating an argument they have already lost before, it is absurd for them to be wasting people’s time and money on something that was written this long ago, that may or may not have some tenuous connection to alleged copyright infringement.

This level of obsession with a tiny and most likely irrelevant post that took a few seconds to write over a decade ago, borders on the pathological. It is another demonstration of how copyright not only distorts technology, markets and the law, but has also warped the minds of some people.

Featured image created with Stable Diffusion.

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Another reminder that what copyright destroys, unauthorised copying can save

There’s an interesting post on TorrentFreak that concerns so-called “pirate” subtitles for films. It’s absurd that anyone could consider subtitles to be piracy in any way. They are a good example of how ordinary people can add value by generously helping others enjoy films and TV programmes in languages they don’t understand. In no sense do “pirate” subtitles “steal” from those films and programmes, they manifestly enhance them. And yet the ownership-obsessed copyright world actively pursues people who dare to spread joy in this way. In discussing these subtitles, TorrentFreak mentions a site that I’ve not heard of before, Karagarga:

an illustrious BitTorrent tracker that’s been around for more than 18 years. Becoming a member of the private community isn’t easy but those inside gain access to a wealth of film obscurities.

The site focuses on archiving rare classic and cult movies, as well as other film-related content. Blockbusters and other popular Hollywood releases can’t be found on the site as uploading them is strictly forbidden.

TorrentFreak links to an article about Karagarga published some years ago by the Canadian newspaper National Post. Here’s a key point it makes:

It’s difficult to overstate the significance of such a resource. Movies of unflagging historical merit are otherwise lost to changes in technology and time every year: film prints are damaged or lost, musty VHS tapes aren’t upgraded, DVDs fall out of print without reissue, back catalogues never make the transition to digital. But should even a single copy of the film exist, however tenuously, it can survive on Karagarga: one person uploads a rarity and dozens more continue to share.

Although that mentions things like film prints being lost, or back catalogues that aren’t converted to digital formats, the underlying cause of films being lost is copyright. It is copyright that prevents people from making backups of films, whether analogue or digital. Even though people are painfully aware of the vulnerability of films that exist in a few copies or even just one copy, it is generally illegal for them to do anything about it, because of copyright. Instead, they must often sit by as cinematic masterpieces are lost forever.

Unless, of course, sites like Karagarga make unauthorised digital copies. It’s a great demonstration of the fact that copyright, far from preserving culture, often leads to its permanent loss. And that supposedly “evil” sites like Karagarga are the ones that save it for posterity.

Featured image by dimitriwittmann.

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The copyright world’s obsession with ownership will throttle AI innovation and boost today’s tech giants

Generative AI is still one of the hot topics in technology, even if the initial, rather breathless excitement has cooled down somewhat. It clearly represents an interesting new approach to finding and creating textual, visual and audio material. Unfortunately, the copyright world’s obsession with ownership threatens to throw an 18th-century legalistic spanner in these 21st-century works. Here, for example, is The Hollywood Reporter writing about a lawsuit brought by two authors who claim that ChatGPT infringes on copyrights to their novels:

The proposed class action filed in San Francisco federal court on Wednesday alleges that OpenAI “relied on harvesting mass quantities” of copyright-protected works “without consent, without credit, and without compensation.” It seeks a court order that the company infringed on writers’ works when it illegally downloaded copies of novels to train its AI system and that ChatGPT’s answers constitute infringement.

As evidence of that alleged infringement, the lawsuit notes that ChatGPT is able to generate summaries of the authors’ novels when prompted. They argue that is only possible if ChatGPT was trained on their copyrighted works. Even accepting that logic, the next step – using this to “prove” infringement – is based on a misunderstanding of how generative AI works.

What ChatGPT and other generative AI systems do is similar to what Web search systems do: they ingest huge amounts of data, extract certain information, and then use that to respond to user queries. In the case of Web search engines, they create a map of online material in the form of an index of words – which words are found on which sites. This allows users to find sites that contain particular combinations of keywords. Generative AI goes further, and creates a map of all the training material it analyses in the form of a complex probabilistic representation of the relationships between elements found in that material, whether textual, visual or auditory. This allows users to create new material by using prompts as a way of drawing on the overall abstract patterns encapsulated in these representations.

Despite what the lawsuit claims, the result of using a generative AI system is not a derivative work “made without Plaintiffs’ permission and in violation of their exclusive rights under the Copyright Act”. It is not derived from, or based on, any copyright work, but generated using complex computational processes drawing on the mathematical representations of the aggregated probabilistic relationships between elements found across all the training material (if you want to find out more about how ChatGPT does that, Stephen Wolfram’s very long post “What Is ChatGPT Doing … and Why Does It Work?” is probably the best introduction.)

The richness of the training material is key to the power of the generative AI systems, as the larger and more powerful models demonstrate. But that is an argument to allow them to ingest as much material as possible, not least to avoid biases that are often present in smaller training sets. In fact, the bigger the training set, the smaller the importance of any specific material, since its probabilistic information is combined with and subsumed by trillions of other data points.

The current spate of lawsuits alleging “infringement” of particular works not only misunderstand how generative AI systems work. They also threaten to stymie the continued improvement of the technology towards tools that are even further removed from the training materials that copyright-obsessed creators are worried about. The Hollywood Reporter article quotes Ashley Irwin, president of the Society of Composers and Lyricists, as saying back in May:

that AI firms should be required to secure consent by creators for the use of their works to train AI programs and compensate them at fair market rates for any subsequent new work that’s created, on top of providing the proper credit.

The only companies that could even attempt that would be giant ones with deep pockets. Pursuing this quixotic idea that creators have some kind of “ownership” of the aggregated probabilistic data that lies at the heart of generative AI, and what they produce, will not only seriously hobble innovation. It will also guarantee that small startups won’t be able to participate in this exciting new sector. That, in turn, will cement the dominance of today’s biggest technology companies – the very players that the copyright industry regards as its worst enemies.

Featured image created with Stable Diffusion.

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How long before all browsers are required by law to prevent users from opening allegedly infringing sites?

Mozilla’s Open Policy & Advocacy blog has news about a worrying proposal from the French government:

In a well-intentioned yet dangerous move to fight online fraud, France is on the verge of forcing browsers to create a dystopian technical capability. Article 6 (para II and III) of the SREN Bill would force browser providers to create the means to mandatorily block websites present on a government provided list.

The post explains why this is an extremely dangerous approach:

A world in which browsers can be forced to incorporate a list of banned websites at the software-level that simply do not open, either in a region or globally, is a worrying prospect that raises serious concerns around freedom of expression. If it successfully passes into law, the precedent this would set would make it much harder for browsers to reject such requests from other governments.

If a capability to block any site on a government blacklist were required by law to be built in to all browsers, then repressive governments would be given an enormously powerful tool. There would be no way around that censorship, short of hacking the browser code. That might be an option for open source coders, but it certainly won’t be for the vast majority of ordinary users. As the Mozilla post points out:

Such a move will overturn decades of established content moderation norms and provide a playbook for authoritarian governments that will easily negate the existence of censorship circumvention tools.

It is even worse than that. If such a capability to block any site were built in to browsers, it’s not just authoritarian governments that would be rubbing their hands with glee: the copyright industry would doubtless push for allegedly infringing sites to be included on the block list too. We know this, because it has already done it in the past, as discussed in Walled Culture the book (free digital versions).

Not many people now remember, but in 2004, BT (British Telecom) caused something of a storm when it created CleanFeed:

British Telecom has taken the unprecedented step of blocking all illegal child pornography websites in a crackdown on abuse online. The decision by Britain’s largest high-speed internet provider will lead to the first mass censorship of the web attempted in a Western democracy.

Here’s how it worked:

Subscribers to British Telecom’s internet services such as BTYahoo and BTInternet who attempt to access illegal sites will receive an error message as if the page was unavailable. BT will register the number of attempts but will not be able to record details of those accessing the sites.

The key justification for what the Guardian called “the first mass censorship of the web attempted in a Western democracy” was that it only blocked illegal child sexual abuse material Web sites. It was therefore an extreme situation requiring an exceptional solution. But seven years later, the copyright industry were able to convince a High Court judge to ignore that justification, and to take advantage of CleanFeed to block a site, Newzbin 2, that had nothing to do with child sexual abuse material, and therefore did not require exceptional solutions:

Justice Arnold ruled that BT must use its blocking technology CleanFeed – which is currently used to prevent access to websites featuring child sexual abuse – to block Newzbin 2.

Exactly the logic used by copyright companies to subvert CleanFeed could be used to co-opt the censorship capabilities of browsers with built-in Web blocking lists. As with CleanFeed, the copyright industry would doubtless argue that since the technology already exists, why not to apply it to tackling copyright infringement too?

That very real threat is another reason to fight this pernicious, misguided French proposal. Because if it is implemented, it will be very hard to stop it becoming yet another technology that the copyright world demands should be bent to its own selfish purposes.

Featured image by Stanley Kubrick.

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Copyright enforcement in a nutshell: make the Internet hard work and less fun until people give up

The Internet is amazing, but it’s not perfect. There are many aspects that are unsatisfactory – its protocols are inefficient, and it is far from resilient. The InterPlanetary File System, created in 2014, aims to address some of these deficiencies. On its main site it is described as:

A peer-to-peer hypermedia protocol designed to preserve and grow humanity’s knowledge by making the web upgradeable, resilient, and more open

Like the Internet itself, IPFS is a technology that can be used for a wide variety of purposes. A post on TorrentFreak from earlier this year explains:

It allows archivists, content creators, researchers, and many others to distribute large volumes of data over the Internet. It’s censorship resistant and not vulnerable to regular hosting outages.

IPFS is also a perfect match for ‘pirate’ sites. Due to its decentralized nature, IPFS sites are virtually impossible to shut down.

A more recent post on TorrentFreak reveals how the copyright industry is trying to attack IPFS by attacking gateways to it. Specifically, it concerns the IPFS gateway at hardbin.com operated as a free service for the benefit of the online world by James Stanley. In a recent blog post, he writes:

I received 3 DMCA takedown emails today, covering 7350 URLs on my hardbin.com IPFS gateway. The URLs were allegedly serving infringing copies of books. The strange part is that of those 7350 URLs, during the time for which I have [the Web server] nginx logs, none of them have ever been accessed, and of the ones that I checked, none even worked.


Copyright infringing material or activity could not have been found at those locations because in order to find it you must have accessed it, and since my logs show that nobody accessed it, we can infer that Gareth Young, Internet Investigator [who appears to have sent the DMCA takedowns], can not have found it.

Despite this fact, Stanley has decided – not unreasonably – that he has had enough of being harassed for magnanimously trying to offer a service for free:

I have now taken hardbin.com down completely because dealing with this sort of thing makes it less fun to run and more like hard work

He ends his post by wondering whether the DMCA takedowns he received would be classed as “fraudulent”, and asks, if so, what can be done about it. Sadly, the answer is almost certainly: nothing. There seem to be no penalties for fraudulent DMCA claims, which require simply a “good faith belief” that copyright has been infringed, according to the law. By contrast, counter-claims made by recipients of takedowns must include a statement “under penalty of perjury” that the material was taken down by mistake.

That blatant asymmetry is a great demonstration of how the enforcement system is tilted in favour of copyright companies, and against the general public who so often are framed as its enemies. It means that a constant drip of bogus takedowns can be used to wear down the goodwill and patience of online benefactors like James Stanley until they give up in frustration. We are all the poorer as a consequence.

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Top EU court advisor says technical standards, like laws, should not be locked down by copyright

One of the most pernicious ideas that copyright maximalism has spread is that preventing people from freely accessing creative material is not just a good thing to do, but should be the natural state of affairs. This has made questioning whether copyright is really the best way to support artists and promote creativity hard. Against that background, there’s an interesting opinion from one of the top EU court’s special advisers, known as advocates general, suggesting a situation in which copyright definitely should not be applied. The Court of Justice of the European Union’s press release explains the background:

Public.Resource.Org Inc. and Right to Know CLG are two non-profit organisations whose focus is to make the law freely accessible to all citizens. The organisations had challenged before the [EU] General Court a Commission Decision refusing to grant them access to four harmonised technical standards (HTS) adopted by the European Committee for Standardisation (CEN) with respect to the safety of toys in particular. As their challenge was unsuccessful, they appealed the General Court judgment before the Court of Justice.

In today’s Opinion, Advocate General Laila Medina looks into the question whether the rule of law as well as the principle of transparency and the right of access to documents of EU institutions require that HTS are freely available without charge.

The conclusion reached by Advocate General Laila Medina is straightforward:

for the purposes of EU law in general and for the access to EU law in particular, and, given HTS indispensable role in the implementation of EU secondary legislation and their legal effects, they should, in principle, not benefit from copyright protection.


even if HTS could be protected by copyright, free access to the law has priority over copyright protection.

The basic idea is simple: people can’t be expected to follow a law (or technical standard) if they don’t have ready access to it. Copyright is a barrier to access, and therefore should not be allowed for harmonised technical standards (HTS), just as it is not permitted for EU laws. And even if for some reason HTS were subject to copyright, free access must be granted anyway, blunting its negative impact.

It’s worth emphasising that the Advocate General’s opinion is only advisory, and may be ignored by the main court when the latter issues its final judgment on the case. Nonetheless, it’s great to see one of the EU’s top legal authorities dare to go against today’s orthodoxy that copyright is so wonderful it should be applied to everything, no exceptions.

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Long overdue, but good to see: Germany’s new copyright exception for pastiche applied for first time

Although overall the EU Copyright Directive is bad news for the digital world because of things like its need for the use of automated upload filters, it does contain a few glimmers of good sense. For example, it rectifies a failing of the previous EU legislation in this area, the 2001 Infosec Directive. The 2001 law allowed Member States to implement an exception or limitation for the use of copyrighted material “for the purpose of caricature, parody or pastiche”. Because it was vague and optional, this exception was not widely implemented by EU countries.

The EU Copyright Directive addresses that by making it mandatory to allow for caricature, parody, and pastiche uses. However, even this improvement is flawed, since it only applies to online services. Member States still have the option to extend that exception, but once more it is a vague and unsatisfactory situation. An important case in Germany, discussed in depth on the Kluwer Copyright Blog by Susan Bischoff, provides some important insights into what the copyright notion of pastiche now means in the EU context. The same blog has another, more general exploration of the topic.

Bischoff’s post goes into the details of the German case, but reduced to its essentials, a “kitschy” image of a cherry tree by a London-based digital concept artist made a modified appearance in a painting by a Berlin-based German painter. The former claimed copyright infringement had taken place. For the first time, the court applied a new section of German copyright law that permits use of material for the purposes of caricature, parody, and pastiche. It considered whether the use of the cherry tree motif could be considered a pastiche of the original, and found that it was indeed a permitted use. Bischoff’s blog post explains:

The judges conduct a detailed assessment of the painting, analyzing its individual components, their interpretation and collage-like composition, as well as the different levels of detail in the painting technique. The court concludes that the cherry tree is not only a background motif but a collage element. With regard to the necessary interaction, the court finds that this “is to be seen in the fact that a typical kitsch picture, which is supposed to offer the consumer something beautiful and attractive, becomes the content of a collage-like representation, which forces it to be viewed in a different, critical context” as “the viewer of the painting puts herself in the position of an elderly person who […] is looking at a panorama in which the vibrant green in the foreground near this person is replaced all around by a gloomy, unreal-looking scenery”.

It’s great that the German judges conducted such a thoughtful and nuanced analysis, and that they affirmed that this incorporation of an element from another work was a pastiche, and therefore permitted. But it is absurd that it has taken over 20 years to fix this bug in the EU copyright legislation, and that something as natural and creative as pastiche was not regarded as a self-evidently legal way to re-purpose existing copyright material.

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Talking to the wall: Portugal’s shameful approach to implementing the EU Copyright Directive

The depressing tale of how the European Union passed copyright’s worst new law, the EU Copyright Directive, occupies some 36 pages in Walled Culture the book (digital versions available free). The main legislation was finalised over four years ago, but countries are still grappling with the problem of implementing its sometimes contradictory requirements in national laws. One of the latest to join the EU Copyright Directive club is Portugal. A Twitter thread from the non-profit digital rights group D3 – Defesa dos Direitos Digitais explains how the new law implementing the directive was passed in just about the worst possible way (translations of tweets by DeepL).

On June 13th, the Portuguese President of the Republic approved the transposition of the EU Copyright Directive into law. However:

What solutions were ultimately approved? Not known, they are not public.

That is, a key law for the digital world has been passed without full details being published. As D3 explained in a tweet, back in January, several civil society associations had objected to a legislative process that gave the Portuguese government a free hand to do whatever it wanted:

At the time, we warned that a “public consultation” by the government would be just an email inbox where you could send documents. A “talking to the wall” in digital version.

Despite that warning, the Socialist Party, Social Democratic Party and the nationalist Enough Party together voted to approve the legislative authorisation. Confirming the importance of the proposed implementation of the EU Copyright Directive to people in Portugal:

The public consultation had a remarkable participation for a law on copyright: more than three dozen submissions.

But the entities that participated did not have any feedback to their participation.

It was indeed just a case of the Portuguese government going through the motions in terms of seeking public input, of “talking to the wall”:

It is not known what suggestions were approved or rejected.

It is not even known if there would have been amendments or not.

The Decree-Law was approved in the Council of Ministers without being made available to the public.

Let that sink in: one of the most important modern laws has been passed in Portugal without the public being told what its final form would be:

Today [June 13th], the President of the Republic announces the enactment, pointing out a “positive evolution of the articles”.

What evolution? We don’t know, it is not public.

This is an example of the political paternalism that is all-too common in this field. Politicians simply don’t care what the public thinks about copyright laws, and arrogantly assume that they know better, or that it doesn’t matter to ordinary citizens. D3 summarises what happened as follows:

In short, the content of the Portuguese transposition:

– Was not discussed at all by Parliament, which also did not listen to civil society.

– It was not openly discussed by the Government.

– It is not public (until it is published in [the official gazette] Diário da República [Decree-Law now available]).

The requirement that national governments implement the EU Copyright Directive through local legislation naturally means that the political processes used to accomplish that, and the laws that result, will vary somewhat by country. This in itself creates issues, especially for a directive that aims to harmonise. But the secretive, anti-democratic manner in which the new Portuguese law transposing the EU Copyright Directive has been rammed through is one of the worst examples of the contempt often shown by politicians for the public they supposedly represent and serve, a contempt that is so typical when it comes to regulating copyright. Portugal should be ashamed of the result.

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Digital business models are changing: what are artists’ thoughts, hopes and fears in this new world?

The creative world is changing rapidly under the impact of digital technologies. That makes the lack of research into how creators are reacting to and working with new technology all the more urgent. One new report that helps to address that gap in our knowledge is The Networked Shift, available as a free download from the Creative Industries Policy and Evidence Centre. Although produced in the UK by Careful Industries, its scope is broader. Its strength is that it draws on recent workshops and interviews with people from across the creative industries to provide an updated snapshot of what is happening among artists and those who work with them. One of the “preoccupations” to emerge from those discussions is the following:

Digital business models are changing the way some sections of the creative industries workforce work, creating new demands of existing support structures including intellectual property, contracts, payment and taxation models, and the role of intermediaries such as agents and managers. Questions of moral and human rights are coming to the fore as AI and automation become more prevalent, while dependence on digital platforms is introducing new forms of uncertainty for some parts of the creative industries.

On the subject of AI, and in contrast with the hyperbolical approach of the copyright industry, there was a welcome pragmatism in artists’ attitudes:

all of our interview subjects interpreted automation as having a much broader definition than these generative tools, discussing the potential for AI to enhance rather than replace human-computer workflows. The outputs generated by AI were regarded as ways of augmenting creative work rather than as a full replacement, and several interviewees shared the fact that they sometimes used automated tools as a way of ‘warming up’ and ‘filling in the gaps, creating previews to visualise things much sooner’

The report also singles out one of the most important trends to emerge in the digital world: the close and often direct relationship between creators and their fans:

The success of a social community is not just its size but the level of engagement shown by its members: Reddit, Discord, and Facebook are bustling with smaller, organic fan communities who enjoy talking to others about their favourite podcasts, games, and serially published ebooks, often in forensic detail. While these smaller fandoms may not realise significant income streams for creators, they can often be relied upon to support hosting and other costs through crowdfunding campaigns, merchandise sales, and tickets sales for live events; this model enables creators to maintain a degree of creative and commercial independence.

Against that background, it’s disappointing that the report doesn’t make the crucial connection between many of the problems and challenges that it identifies for future development, and the outdated and harmful nature of copyright in a digital world. Although the word “copyright” is mentioned eight times, it seems throughout to be accepted as an inevitable part of the future artistic landscape. As readers of Walled Culture the book well know, that’s certainly not the case. Not only is creativity possible without copyright, but it is able to flourish far better without the legal and economic constraints born of copyright’s forlorn obsession with controlling digital copies.

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How to use today’s debate about AI to fix yesterday’s mistakes in copyright legislation

Copyright is starting to become a hot topic in the world of generative AI, as the usual culprits start demanding yet more protection for their intellectual monopolies. There’s an interesting meditation on this development and its implications by Dean Baker, Senior Economist at the Center for Economic Policy Research, which he co-founded in 1999. His starting points are the following:

Creative workers need to be compensated for their work;

Copyright monopolies may not be the best route, especially in a world with AI;

There are alternative mechanisms that we already use and which could be expanded.

After running through some of the problems with the current system of remunerating artists, he proposes building on the existing idea of charitable contribution tax deductions, which is a way the US and other governments support a wide variety of non-profit organisations through the tax system. Baker suggests:

Instead of having a tax deduction, we could create a tax credit, say $100 to $200 per person. And, we could stipulate that the credit can only be used to support creative workers or organizations that support creative work. The latter could be organizations that commit themselves to supporting say, mystery writers or country music singers, which would serve as intermediaries for people who don’t want to use their credit for supporting specific individuals.

To be eligible to receive this new funding, a person would have to fulfil two conditions. First, they would have to register in the same way that they have to register now to get tax exempt status. The second condition is bold and innovative:

workers would lose copyright protection for the time they are in the tax credit system and a substantial period (e.g. five years) afterwards. The point is that we only subsidize creative work once. If we pay the worker to produce a book or movie or song, we don’t have to pay them a second time by granting them a copyright monopoly.

The logic of having a ban on copyright protection for a period after being in the system is to avoid having people using the tax credit system as an effective farm system, where they develop a reputation and then join the copyright system. They would still have the option to change systems, but they would have to wait for a period of time.

Baker addresses some of the possible concerns with his new approach, and concludes with the following thought about why the current debate around the role of copyright in the digital world is a perfect opportunity to correct earlier mistakes in this area, discussed at length in Walled Culture (digital versions available as free download):

the key point is that we should not treat our current rules on intellectual property as set in stone. When the Internet first became an important development in the 1990s, at the urging of the music industry, Congress rushed to pass the Digital Millennial Copyright Act, to ensure that copyrights would be enforced on the web. This limited the potential of the Internet as a means to freely transfer information, articles, books, music, and movies and other digital material.

Now we are hearing similar concerns about how AI will affect the value of copyrighted material. Rather than limiting AI, it might be more appropriate to reconsider copyright and determine whether it is still the best mechanism for supporting creative work. As I argue here, there are good reasons for thinking that is not the case.

This is a debate that is likely to grow louder and more heated, so it’s good to have Baker’s calm but thought-provoking input.

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