Informationoverlord

Missed this last week. Copyright Tribunal has upheld web news monitoring service Meltware’s right to challenge the Newspaper Licensing Agency’s (NLA) Web Database Licence/Web End User Licence. Meltware is arguing that the costs of the licence as excessive and they would be paying around £10,000 to cover around 3.8% of their news sources, and that also that several terms in the licences are unreasonable – including supplying the NLA with a list of all its customers and notifying their customers that they in turn will need a NLA licence. The NLA had argued that the Tribunal should not hear the case as Meltware has no standing to bring the case as they have not signed up to the licences and that the Tribunal had no jurisdiction. The Tribunal dismissed both these arguments. Both sides can not start submitting evidence and a hearing will be held in February 2011. 

I, like many of my fellow information/library colleagues, use the EU’s TED (Tenders Electronic Daily) service. For those familiar with TED it is the online version of the ‘Supplement to the Official Journal of the European Union’, dedicated to European public procurement. And yes, it is about as exciting as it sounds.

Now, in common with many sites, you can create saved searches and have these emailed to you or take an RSS feed of the search .

Now if you take the feed you can subscribe to in IE7 or MS Outlook

(actually on a separate note, have you ever tried doing that? According to Outlook ” Using Microsoft Office Outlook 2007 to subscribe to an RSS Feed is quick and easy and does not involve a registration process or fee.” Infact it is so easy that when you click on FILE, TOOLS, or ACTIONS there is no mention of RSS anywhere. That’s because part of this quick and easy process involves you knowing that you have to do the following:

1. On the Tools menu, click Account Settings.
2. On the RSS Feeds tab, click New.
3. In the New RSS Feed dialog box, type or press CTRL+V to paste the URL of the RSS Feed. For example, http://www.example.com/feed/main.xml.
4. Click Add.
5. Click OK.

Yes, it is not a long process, but WHY do I have to go into my account settings to add an RSS feed?)

But I digress. Back with my TED feed. If you try to add it to your iGoogle page, Google Reader, Netvibes or indeed anything non-Microsoft it seems to me, you’re told the link “does not provide a feed” / “sorry, no feeds found at this url” etc

Conclusion: TED RSS feeds = FAIL

And that is the good news because the email update is even worse. For example, today I got an email telling me:

Here are 5 result documents published on TED corresponding to your alert … published in 053/2010 on 2010-03-17:

Ok, that seems fine (or fine if you ignore fact that today in the 26th and according to the rss feed there is more up-to-date content than stuff from the 17th that the email is alerting me to) until below the five items it then adds …

The total number of documents matching your criteria is 17. To view all the results please Click here.

What? The whole point of my wanting an email update is so I don’t have to visit the site needlessly. With this update I still need to visit the site if there are more than 5 items matching my profile just to check that the ones they have omitted are not of use to me. What value is that providing exactly? I really do wonder sometimes how people that set these things up ever got jobs. They might as well send me an email each day saying ‘There might be some stuff on our site today that may be of interest to you … then again, there might not’. In fact I’d suggest that is what TED start doing instead.

Conclusion: TED Email alerts = FAIL

I know they say that a week is a long time in politics, but … on Monday the Government responded to House of Lords Select Committee on Communications report on the British film and television industries. In response to the Committee’s following recommendation on the video games industry:

We recognise the claims of the videogames industry for support in the face of foreign government-subsidised competition, and recommend that the Government consider providing tax incentives for videogames production.

The government response was:

“The 2009 Pre-Budget Report announced that, whilst recognising the challenges currently faced by the sector in competing internationally, the Government is not currently persuaded that the evidence is sufficiently compelling to justify the introduction of a tax incentive for the development of culturally British video games at this time. The Government remains committed to providing a tax system and business environment that is beneficial to businesses from all sectors, including the video games industry. The Government will continue to look at ways to make the UK tax system more competitive and, as with all decisions on tax policy, will keep the situation under review.”

Fast forward, oh, say, two days and the government, via Alistair Darling announce in their Budget speech the following: “I will offer help to the computer games sector, similar to the steps which are helping restore the fortunes of the British film industry. This is a highly successful and growing industry, with half its sales coming from exports, and we need to keep British talent in this country.”

In the actual text of the budget doc: “The creative industries, including the video games industry, make a valuable economic and cultural contribution to the UK. The Government announces that, following consultation on design, it will introduce a tax relief for the UK’s video games industry, subject to state aid approval from the European Commission.”

Anyone know what sufficiently compelling evidence came to their attention since they said ‘press print ‘on their response to the Lords’ report over the weekend and today when Mr Darling decided there obviously was enough to justify the introduction of a tax incentive??

I do like to start the day with a bit of spam. I have someting VERY important to tell Jessy too.

HELLO
my name is Jessy!
please how are you! hope you are fine and in perfect condition of health.I
went through your email to day i read it and took
intersest in it,please if you don’t mind i will like you to write me on this
email(jessylovekimudi@yahoo.com) i hope to hear from you soon,and I will be
waiting for your mail,because i have
something VERY important to tell you. Lots of love
no mater the distance or colour what maters is love so let share love
together

The wrappers came off Viacom’s and YouTube’s motions for summary judgment in their copyright infringement case. The motions made for interesting reading as both sides choose to selectively target the other in their arguments.

Viacom

Viacom told the court that it is only interested in infringement pre-May 2008 (the point at which YouTube deployed digital fingerprinting and filtered for Viacom, when the parties signed a content deal). Viacom is therefore saying that since they signed their deal with YouTube they are happy with YouTube’s current practices, as regards infringing copyright material, and therefore don’t believe it currently induces infringement.

Viacom’s argument is that it is clear that the YouTube founders: Chad Hurley, Steve Chen and Jawed Karim, made a deliberate decision in 2005 to build a business based on piracy. They cite emails exchanges between the founders admitting early on the site is full of copyrighted material but that they needed to keep it up on the site to build traffic. They pointed in particular to exchanges between Hurley, still YouTube’s CEO, and Karim. During discovered Hurley informed the prosecution that he had lost his entire email repository. When then presented with copies of those emails retrieved from Karim, which showed all three were aware that 80% of their hosted content was infringing copyrighted material and that they wanted to “concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics however evil”, Viacom claims Hurley developed “serial amnesia” about any of those conversations.

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

Next Viacom point to the fact that YouTube had the ability to deploy fingerprinting and filtering technology – they has a licence for Audible Magic from early 2006 – but either choose not to at all, or only agreed to do so with media organisation who agreed content licences with them. Viacom claims YouTube withheld applying these technologies to their content until May 2008 when the parties signed a content licencing agreement.

It continues to say that YouTube continued to be aware that much of the content on the site was infringing and yet took no action to do anything about it. They argue they could quite easily have removed obviously infringing material.

When it comes to the law, Viacom argues that as in Grokster, YouTube is guilty of inducement and is not entitled to any of the affirmative defences, available under s512(C) of the Digital Millenium Copyright Act (DMCA), to protect it from copyright infringement liability. In particular, it states that service providers will not be liable “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” This protection is available only if the service provider satisfies a number of statutory requirements. For example, the service provider must not have actual knowledge that the material or an activity using the material on the relevant system is infringing, must not receive a direct financial benefit from infringing activity, and must expeditiously remove or disable access to material if it is notified that the material is infringing or is the subject of infringing activity.

Viacom contended that YouTube does not qualify for § 512(c) immunity because YouTube had actual knowledge and was aware of infringing activity on their site and did not act to stop it; it had the ability to control infringing activety and remove any content – as they do frequently with adult material - but chose not to; turned a blind eye to acts of infringement for the sake of profit from web traffic and ad revenues; and that it did not store video clips “at the direction of a user.”, as it actively creates “Flash-formatted” copies of video files uploaded by users and allows streaming of those clips, making it a direct infringer of copyright because its copyright infringement is not from web hosting but from broadcasting videos.
This final line of argument seems a little odd, as YouTube still creates version of uploaded conetnt in this way post May 2008 where Viacom apparently has no issues with the site.

Viacom also point to the fact that YouTube has signed licencing deals to distribute their service and the infringing content over third party platforms – such as the iPhone – an action that it clearly not storage, and so is not protected by DCMA.

YouTube

Google/YouTube, perhaps unsurprisingly, choose to ignore the sites beginnings and the initial days of the Google take over and instead concentrate on what the site has become. It argues that whilst it can’t control what its user upload it has taken numerous steps to keep illegal material off the site: it’s T&Cs; copyright tips; 10 minute limit; registered a DCMA agent; removes infringing materials as result of DCMA request; terminates and blocks accounts of users suspects of being repeat infringers; and employs team to help copyright owners remove unauthorised material.

YouTube states the problem with Viacom’s case is that the actual actions of Viacom undermine its own case. Firstly, it points to Viacom’s own failed attempt to buy YouTube in 2006. If Viacom saw it as a video Grokster, why did they want to buy it, and why were they already negotiating a possible content licencing agreement before Google acquired the site? It also states that it was Viacom, not YouTube that scuppered a deal between to two in 2007 by requesting more money than any other content partner– although YouTube are quiet on the allegation of withholding fingerprint technology for only those who signed content licencing deals.

It states that in February 2007 the two companies agreed that Viacom would present a super takedown notice. YouTube says that within 24 hours ‘virtually all’ the videos had been removed. The following month Viacom launch this legal action, demanding one billion dollars.

YouTube produced its own email evidence that from early 2006 onward Viacom employees and its agent BayTSP were actively uploading clips to the site, infact they even had a documented policy to ensure that some content stayed up on the site. In November 2006, just after Google took charge 316 infringing South Park clips were found on the site, and yet Viacom only requested the removal of one.

YouTube accuses Viacom of using stealth marketing to get fake accounts set up to promote uploaded viral videos from Viacom from the ‘grassroots’. A number of commentators have expressed the view that the FTC might be interested in this evidence.

In relation to the 63,497 clips in this case (which includes one from the FA Premier league of ONE second duration) YouTube stated most were the subject of DCMA notices and taken down in response. However, YouTube claims its discover in the case shows that many of these clips were posted at Viacom’s direction. This is an accusation that seems to have been backed up by Viacom twice having to ask the court to remove clips from the list - 241 clips in October 2009, after realizing that many had actually been uploaded by Viacom employees, and this week a further 6 clips that were mistakenly included back in October in addition to removing another 187 clips ‘ in order to streamline the issues in this case’.

YouTube argues that if Viacom is still only just discovering what was a legitimate authorised copy of its content in the site as opposed to an unauthorised one three years after starting the case how was YouTube supposed to identify this ‘obvious infringing activity’ within hours or days. Whilst the courts had found that service providers must remove material on their own where infringement would be apparent form a brief and casual viewing, YouTube argues that Viacom has shown that even it is incapable of doing this successfully. Additionally, if Viacom deliberately refrained from sending takedown notices for certain clips, how could YouTube be obligated to remove those same videos on sight.

YouTube also points to the recent decisions in cases featuring fellow video sharing site Veoh (v UMG and v Io Group) in which against UMG a request for summary judgment was refused and against lo Group the case was dismissed. In the Veoh case in particular the court agreed that the created on flash videos and associated actions by the site fell within the scope of § 512(c), because all of them are narrowly directed toward providing access to material stored at the direction of users. YouTube argues it does the same, so should be equally protected.

Both motions make compelling reading when read alone. It seems likely however that both motions will be dismissed and the case will head to the courtroom.

Eric Goldman, Associate Professor of Law at Santa Clara University School, asks the interesting question. If Viacom is right that YouTube induced infringement in 2005-06, but doesn’t currently induces infringement (after all, Viacom isn’t contesting post-May 2008 activity) How the courts determine when YouTube flipped the switch from inducing to not? And does flipping the switch cure any of the past infringement, or does it only cut off future claims?

Keep watching this one.

The Digital Economy Bill finished its report stage in the4 House of Lords earlier this week (current text of bill to go to third reading here). Whilst the biggest news to come out of the report stage has been the well intentioned but bad new clause 17 and the possible widening of powers to block access to websites (A letter to the FT shows the variety of people and companies who oppose this clause), one of the more interesting things for me came on the final day when Lord Lucas tabled an amendment to add a “protection of the right to link to publicly available information on the internet”

He identified the issue that publishers have with the use of “a short text extract-for example, the headline or half of the first sentence or whatever-sufficient to give an indication of what the link leads to. “, especially by search engine and news aggregator sites such as Google news, and NewsNow (which publishes just the hyperlinked titles of articles)

He stated that publishers “are saying that the current fair use, which is limited to things such as reviews and research, does not cover the activities of search engines or news aggregators, and perhaps it does not…We, as Parliament, ought to draw the boundaries at a fair place for copyright owners and in a proper place for users of the internet. A link should be properly described, and it should be possible to use an equivalent of the right to make short extracts from reviews in order to describe that link. The publishers’ associations should get back in their box. ”

Lord Young, for the government, replied that he agreed that search and aggregation are both important but so, too, are the rights of content creators. He pointed the Lords to Meltwater v the Newspaper Licensing Agency were some of these issues are currently the subject of litigation before the Copyright Tribunal.

For those not familiar with this case, the Newspaper Licensing Agency (NLA) owned by the main eight national newspaper publishers had its remit extended from 1st January this year to cover paid-for monitoring of newspaper websites, so companies and sites who had been providing web monitoring, eClipping services to businesses for a price, suddenly found they needed to pay the NLA a license fee of around £10,000 per year. Meltwater, a clipping service is challenging the expanded NLA licence, calling it a “link tax”

The selling of services is the main point in this case according to the NLA, not the linking per se although obviously the likes of News Corp have made clear they would want to charge any sites providing links regardless of whether they were then selling a service on.

Anyway, according to Lord Young addressing the issue of whether it is possible to use short excerpts of a work without infringing copyright:”Ownership of copyright in a work gives the owner exclusive rights to do certain acts in relation to that work. Infringement occurs if a person does any of those acts in relation to the whole or a substantial part of that work without the consent of the right holder. It is possible to use excerpts of a work without the permission of the right holder and without infringing copyright if those excerpts are not substantial, or if one of the statutory exemptions applies … We will look at the situation, but, at the moment, we feel that this amendment is not the right one. ”

The problem, some would argue is that some publisher regard the title as a ’substantial’ part of the work, and clarity on this issue would be welcomed.

There is also a petition on the 10 Downing St site asking the Govt to create a specific freedom to create, aggregate, copy, publish and follow links to publicly available information on the internet.

The Conservative party have published their technology manifesto, which they hope will win over those in and with an interest in the technology industries ahead of the upcoming general election. The manifesto includes commitments to:

On the topic de jour - digital piracy - the party are strangely vague merely stating “We recognise the need to tackle digital piracy and make it possible for people to buy and sell digital intellectual property online. However it is vital that any anti-piracy measures promote new business models rather than holding innovation back.”

Nothing really new in the manifesto, but it does pull together a number of promises made in other statements. Public Reading Stage for all legislation is certainly an interesting one though. It sounds like they envisage a kind of wiki clause by clause based system to allow feedback and comments on legislation - which once the abuse is weeded out, might at least be interesting, even if any comments not made by vested and industry interests are ultimately ignored.

�

The report stage of the Digital Economy Bill at long last produced some real amendments to the Bill, but the biggest one has left some thinking the ‘improvements’ may in fact do more harm.

From the moment the bill was first published last year Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 (CDPA) in future, to reflect fast-changing technology,” found opposition both within parliament - Lord Clement-Jones called it a Henry VIII clause - and with search and social media companiessuch as Google, eBay, Facebook and Yahoo who wrote to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law arguing the “clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments.”

The government who had already amended the clause once were set to amend it further this week but were trumped by Lord Clement-Jones who tabled his own amendment to replace the clause with one of his own.

The government’s proposed amendment would have made it clear that the scope of amendments to Part 1 of the CDPA is limited to Chapter 6 of Part 1 of the copyright Act, and clarified that the clause could only “be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement”

Lord Clement-Jones’ clause introduced the power to shut down / block access to websites hosting infringing material by allowing “the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it.”

Lord Young responding for the government - and being in the interesting position (for a change) of making sense - pointed out the amendment was not a good idea for several reasons: (i) the provisions would need to be notified to the European Commission under the technical standards directive…subsections (6) and (7) of the proposed new clause would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable (ii) Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult, and (iii) sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which will cause significant public disquiet.

Lord Erroll who supported an amendment that would have completely removed Clause 17 from the bill, as he would have prefered to see the next Parliament conduct a proper review or rewrite of the CDPA also saw a problem with Lord Clement-Jones’ amendment. ” We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one.”

Lord Clement Jones responded that he did not think this a problem. “I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. [I] also cannot accept the Minister’s points about the EU technical directive in this case…If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.”

The clause was be put to the vote. It passed by 165 -140, and so is now in the bill.

UK ISP Talktalk reacted strongly to the new clause, calling the measure “draconian” and “futile”. Director of strategy and regulation, Andrew Heaney Heaney said “The amendment seems to require ISPs - and by implication their customers - to pay costs to rightsholders unless we bar a site prior to an injunction being granted against it. The amendment proposes that if a rightsholder’s application for an injunction against a website is ultimately successful, the ISP has to pay the rightsholder’s costs for making that application. This will inevitably encourage ISPs to bar access to a site immediately, in effect turning us into judges deciding which sites our customers can and cannot access.”

It certainly seems that the Lib-Dems have manged to get the bill looking ven more likr America’s DCMS than the government - a feat in itself. How long will sites be blocked? who will review the sites to see if they can be unblocked? It seems to me all this clause now does is as the earl of Erroll said in the debate, give the entertainment indutries yet another stick - this time through lawyers - “to threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court.”

As on the day the bill was first published, Clause 17 must go.