back to article US copyright law shake-up: Days of flinging stuff on the web and waiting for a DMCA may be over

The holes and flaws in America's copyright law are under serious review thanks to two decisions by the US Ninth Circuit Court of Appeals – both of which come with significant implications for media companies. But, if the Trump Administration has anything to do with it, one of those flaws will not be tackled by the Supreme …

  1. Anonymous Coward
    Anonymous Coward

    Lawyers arguing for money over sound and light waves

    The really telling thing here is that pictures and sound recordings are meaningless, valueless waves. The Mavrix and Universals of the world are just gatekeeping middlemen with the high hopes of using a bit of sound or a ray of light in perpetuity, and charge anyone and everything over and over for the right to hear or view it. Sounds like some criminal operation. Here's the thing, music is over-valued. Musicians are not great geniuses. Prince was just a little purple guitar guy. His fans and his music company think that there is value in his music. I fail to see it, so I don't buy any of it. Nor do I think someone should have to pay for having the drugged-up twangings of an over-rated guitar player playing in the background of a more interesting work of video. The Mavrix and Universals of the world could dry up and blow away, and we'd all be better off for it. They provide nothing of real value.

    Same thing with movies. Let's take a prime example of complete and utter shit: After Earth. Now I saw it was playing one day on a channel that I had to pay for as part of a package via old-time cable/satellite services. So, I copied it. Just like I could with a Prince song I hear on the radio! No difference. And I keep it in my Kodi lib to remind me that Hollow-wood is not infallible, and there are precious few genius level entertainers, practically none. You roll out some footage, then expect consumers to pay over and over for each new release on each new delivery platform. Fuck that. I stole a shitty movie, and I ain't giving it back, nor will I be punished for it, ever. The only thing more useless than Prince or Will Smith and his boring offspring, are the idiots who think their works should not be sent straight to the public domain three months after initial release. Early adopters can, but I ain't buying it! :P

    1. Anonymous Coward
      Anonymous Coward

      Re: Lawyers arguing for money over sound and light waves

      Contemporary Hollywood films do not pass the threshold of originality required by copyright, since they consist purely of reheated dogshit.

      That means they're in the public domain. Everyone fill your boots.

      1. Sanguma

        Contemporary Hollywood films do not pass the threshold of originality required by copyright

        Some, like Independence Day, contain stuff to hit any techie's funny bone ... If I hadn't kept control of myself that fateful day, I would've died of laughter seeing the Windows computer infect the alien computer ... the likes of Independence Day are lethal munitions and should be regulated by law. You should not risk your life seeing such balderdash, which may inflict on you an uncontrollable and incurable bout of laughter.

        1. Pompous Git Silver badge

          Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

          "Some, like Independence Day, contain stuff to hit any techie's funny bone"
          Try being a historian watching period dramas... TV is worse than Hollyweird.

        2. david 12 Silver badge

          Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

          >Some, like Independence Day, contain stuff to hit any techie's funny bone<

          "A week later, she got a comm from a recruiter. “Hey, Lisa, I just saw your resume, and have I got an opportunity for you! An established invasion fleet with a proven track record of subjugating alien planets needs some junior engineers to provide tier–1 technical support. This is a great entry-level job, with 100% travel, which is such an amazing opportunity for a "

          More at TheDailyWTF:, http://thedailywtf.com/articles/independence-day

          1. Sanguma

            Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

            That made my day! (Gosh, these alien techies really have to work for their pay, don't they? Just to invade some poor out-of-the-way planet! Next thing they'll be looking for fresh supplies of meat for Lord Crumb's Intergalactic Fast Food Chain, or seeking to build a hyperspace bypass through the planet! Shheesh! :)

        3. hplasm
          Angel

          Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

          "I would've died of laughter seeing the Windows computer infect the alien computer..."

          To be fair, it was a Mac...(Powerbook 5300 sez Goog.)

          MS product placement tends to be on the less-than-Hollywood-budget productions.

          But I can see where you get the connection.

        4. allthecoolshortnamesweretaken

          Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

          Not that it matters in any way, but didn't they use a MacBook-iThingy to upload the virus?

        5. John F***ing Stepp

          It was an Apple *

          Point being, David was supposed to have been a mega genious who programmed in machine code and had access to a captured processor. There are only so many instructions availible on what we build and he only had to sabotage one interrupt; the one conrolling the shields.

          Put that way, most of us could have done that but it would have taken a lot longer.

          Since the script did not allow for a week of no sleep and ld50 levels of coffee, they wrote him in as super smart.

          *windows, bsd and linux myself but apple has progrmmers too; comes to that the first time I messed with assembly it was on an apple ii, 6502.

        6. FozzyBear
          Alien

          Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

          Well if I needed to infect and bring down an alien Computer, Windows OS would certainly be my weapon of choice

          1. Pompous Git Silver badge
            Coat

            Re: Contemporary Hollywood films do not pass the threshold of originality required by copyright

            "Well if I needed to infect and bring down an alien Computer, Windows OS would certainly be my weapon of choice"
            Only works if the aliens are stupid enough to be running Windows.

            Mines the one with a copy of BeOS in the pocket...

            1. Anonymous Coward
              Anonymous Coward

              Re: Only works if the aliens are stupid enough to be running Windows.

              They just had a lot of Internet of (Alien) Things devices:

              cf https://forums.theregister.co.uk/forum/containing/2886199

    2. Anonymous Coward
      Anonymous Coward

      Re: Lawyers arguing for money over sound and light waves

      After Earth.

      I cannot believe you can call it complete and utter shit.

      Think about it, that film was amazing in the fact it will now make you avoid any other films by the smith family when as a whole.

      Life gives you lemons, I say avoid the lemonade.

      1. Anonymous Coward
        Anonymous Coward

        Re: Lawyers arguing for money over sound and light waves

        I suffered through that lump of crap not knowing that it was directed by M Night Iamasham. That detail alone would have stopped me from wasting precious hours watching what must have been an April Fools joke that got out of hand.

    3. Pompous Git Silver badge

      Re: Lawyers arguing for money over sound and light waves

      "The really telling thing here is that pictures and sound recordings are meaningless, valueless waves."
      You sound just like the dude who tried to persuade me that Shakespeare contributed nothing of interest to the world.

      1. Anonymous Coward
        Anonymous Coward

        Re: Lawyers arguing for money over sound and light waves

        Shakespeare died before copyright existed. Long strict copyright prevent people from contributing to the world.

        1. Pompous Git Silver badge

          Re: Lawyers arguing for money over sound and light waves

          "Long strict copyright prevent people from contributing to the world."
          What complete and utter bullshit!

          From the EP Seahorse Bells

          1. Anonymous Coward
            Anonymous Coward

            Re: Lawyers arguing for money over sound and light waves

            >Linking to youtube

            >Not an argument

            What about all the youtube videos that would have been deemed fair use in a court, but are now just gone.

            That's a chilling effect. That's the result of the system we have. You don't even know what you're missing.

            1. John H Woods Silver badge

              Re: Lawyers arguing for money over sound and light waves

              "What about all the youtube videos that would have been deemed fair use in a court, but are now just gone."

              Almost everyone I've talked to about this has had at least one harmless home video snippet wiped from social media for "copyright infringement." Latest example was a sub twenty second vid of my weirdo collie-x who loved the Amazon Prime advert where the street vendor buys a pirate outfit for the busker's dog ... I thought it was a funny clip to share with friends and family, FB's bots thought it was an attempt to steal Cat Stevens' "Tea for the Tillerman"

              1. Suricou Raven

                Re: Lawyers arguing for money over sound and light waves

                I've had three takedowns.

                One was actual infringement - of a cartoon from 1928, which at the time was not available through legitimate channels, and which I'd used to practice by video restoration skills.

                The second was for a piece of music which, I am absolutely certain, was public domain. It was the backing music for another cartoon, this one predating sound, and contemporary with it. This one was picked up by youtube's automatic music identification thing, on behalf of a collecting agency who had purchased the rights to that piece back when it was actually under copyright, and later inserted the lot into youtube's filters without regard for if it had expired or not. It's interesting that youtube has no procedures in place to handle this situation: You cannot file a complaint or request a review, such an option is just not available in the drop-down box.

                The third was a textbook case of fair use in which I used a few short clips, totaling maybe thirty seconds, from a pokemon episode in order to make fun of certain scenes which could be interpreted in ways the producers did not intend. The entire episode had been uploaded by several other youtube accounts without consequence, so I think my vulgar humor may have offended someone at the studio personally.

    4. SnowPatrol

      After Earth

      You stole After Earth!? I think you're the one who lost out here.

    5. art guerrilla

      Re: Lawyers arguing for money over sound and light waves

      a non cow, i believe you are more right than wrong, *especially* in the over-valuation of celebutards: they are made into brands/products that we are led to believe are otherwise superior to you... they are not, they ARE you...

      in fact, i can prove it by the following: are there or are there not a fookton of 'reality' shows which showcase the talents of zillions of 'nobodies' who can dance their ass off, sing their heart out, and otherwise perform JUST AS WELL -if not better- than all but the once-in-a-generation geniuses ? ? ?

      the answer is, yes, there are a fookton of talented folks out there (we ALL have talent(s), whether it is in entertainment is another matter) who could step into the shoes of any/all the celebutards out there who are MARKETED as the coolest thing since sliced bread...

      every single actor on the planet could be raptured out of here, and there would be more than enough talented people (arguably, we are ALL actors) to step up and fill in admirably...

      no, this celebutard-worship is both a purposeful propaganda ploy by the puppetmasters, as well as a natural reaction in trying to have 'leaders' in a leader-less society...

    6. Oh Homer
      Mushroom

      Copyright terrorism

      I'm firmly in the "copyright is a scam" camp, but since Content® recyclers "creators" are unlikely to concede the utter moral indefensibility of their plagiaristic business model any time soon, I propose that the solution is quite simply to apply the same rules and punishments to fraudulent copyright claims as are currently applied to supposed "infringement", which is to say that, at the very least, there ought to be some, which currently there aren't.

      So copyright terrorists carpet-bombing the internet with opportunistic take-downs should be criminally prosecuted, fined and imprisoned for every false claim, even (or in fact especially) if it's generated by some bot without verification and justification. Moreover, this should be fast-tracked with little or no due process (shoot first), since that is also how supposed "infringers" are treated.

      Fair enough?

  2. Daggerchild Silver badge
    Terminator

    Illegal baby dance detected. EXTERMINATE!

    This is the kind of thing that makes me want the world to be taken over by the merciless minions of a heartless AI. At least they'd have a foreseeable and logical reason for destroying your life.

  3. sanmigueelbeer Silver badge

    *Sigh*

    We Australians have told Hollywood to make their products affordable and on time and film piracy will come down. Did they listen? No. Instead, they used strong-arm tactics to get their message across. Has film piracy gone down? For now, yes. And with everyone seriously considering using VPN film piracy will start to creep up.

    Seriously, I don't understand why Hollywood won't/doesn't lobby the American government to just ban VPNs (and only allow American security services to be the sole users of VPN).

    1. Pompous Git Silver badge

      Re: *Sigh*

      "We Australians have told Hollywood to make their products affordable and on time and film piracy will come down. Did they listen? No. Instead, "
      I just wait and purchase DVDs second-hand if they aren't available from the lending library for free.

    2. Suricou Raven

      Re: *Sigh*

      Accessible, affordable and convenient legal options do seriously reduce piracy rates. I'm part of the piracy community, and I've seen first hand the effect that Netflix and Steam have had. It's cost us a lot of members.

    3. Anonymous Coward
      Anonymous Coward

      Re: *Sigh*

      "Seriously, I don't understand why Hollywood won't/doesn't lobby the American government to just ban VPNs (and only allow American security services to be the sole users of VPN)."

      Probably because Hollywood can't hold a candle to Wall Street. And Wall Street REQUIRES specific use cases of VPNs to maintain federal and international legal compliance needed to remain in operation: necessary evils.

    4. streaky

      Re: *Sigh*

      Has film piracy gone down? For now, yes

      I find this extremely unlikely.

      1. Immenseness
        Coat

        Re: *Sigh*

        If they sold their wares at a resonable price it would help. Someone mentioned an old 1968 film in passing and I decided I'd like to pick it up and have a watch for old times sake. Went to order a dvd - 27GBP.

        27GBP for a dvd of a film that is nearly 50 years old. They are taking the mick.

        It was so tempting to just stream it and be done with it. I only wanted to watch it once.

        However I didn't want to pirate and eventually found one on the bay with Spanish subtitles but English dialogue for 15GBP. Although I did enjoy watching it - 15GBP for a suboptimal viewing experience of a 50 year old film?

        They really are their own worst enemies.

        Mine's the one I bought 50 years ago that I have to pay a licence fee for every time I put it on in public.

        1. eldakka

          Re: *Sigh*

          @Immenseness

          By purchasing it even at 15GBP instead of 27GBP you till validated their business model. They (the movie industry) still made money from their model. Artificial scarcity of copyrighted content = ability to charge more for it.

    5. Tom 35

      Re: *Sigh*

      I don't think it's Hollywood enforcement that has made piracy go down. It's services like Netflix make it easy to watch something for not a silly price. For the fist time not being a pirate is easier for the average person.

      Unlike the stuff Hollywood come up with like that Ultraviolet pile of crap they are trying to push. Or the new "super ticket" that replaced it in Canada.

      If the US ban VPNs it would A, piss off thousands of companies that use it to join there offices together. B, have as much effect on the rest of the world as limiting encryption key size did for Netscape exports.

  4. MrT

    Partial moderation/approval...

    "Instead, if this becomes accepted law, companies would have to consider what their moderation policies are and whether they need tightening. It is likely that this would only impact sites that don't allow any content to go up unless they are approved, but even so, it would be a significant shift in the law."

    Where would that leave sites where some parts are moderated/approved, and others parts are not...? Especially if it's not obvious which part is which until a post is made, and even then only the person posting can see the "awaiting approval" notification.

    ;-)

    1. streaky

      Re: Partial moderation/approval...

      Lawyers will earn a lot of money figuring that out. They're never happier then law is confusing and unpredictable. Pigs at the trough you might say.

  5. Anonymous Coward
    Anonymous Coward

    The more ridiculous a law the more the Public will disrespect and ignore the Law.

  6. Mage Silver badge
    Devil

    set up a DMCA takedown system

    There are another issues with DMCA.

    1) I refuse to engage with it because it is USA Law that may be in conflict with International conventions.

    2) It is used by nefarious websites to insulate themselves from violated copyright holders.

    3) It's awkward to use.

    I've seen a site that is scraping every ebook published, though I suspect most of the content is the x% free sample promoted as full book. Any attempt to contact them simply enters a generic DMCA page/site.

    No I'm not talking about Google Books, though that is evil as they are putting up entire books (without permission) as if a library, and allowing access to a limited number of pages. Using a bot you could acquire the entire book, much easier than going around many different libraries using the "fair use" of photocopy a portion for study etc.

    OCR of the images is trivial.

    1. streaky

      Re: set up a DMCA takedown system

      I refuse to engage with it because it is USA Law that may be in conflict with International conventions.

      Not convinced it does. The problem with this argument - and I take your point - the problem is that most jurisdictions will consider the DMCA to be a standard form of copyright notice. If you ignore it and it goes to court (the DMCA is intended to be a delete all for the media industry obviously) then the court might frown upon your behaviour.

      It's a super risky thing to ignore, even outside the US, even though it's US law. I know it sounds odd, and it is odd, but courts do recognise other country's legal systems all the time - but with a DMCA they don't even need to do that. To get around that you'd have to prove not that the DMCA is incompatible with the convention (it's an irrelevance in a hypothetical case) but that a standard copyright notice signed under the penalty of perjury doesn't apply. That being said 95% of the DMCA notices I see are vexatious..

  7. mark l 2 Silver badge

    Copyright law should be there to protect the small independent content creators but in reality it is just big businesses who use it to bully the small people. I don't see any reason - other than for big business to make money- for copyright to continue after the death of the creator. I wouldn't expect my employer to continue paying me for work I did years ago after I had died.

    I think that 50 years is a fair amount of time for most content such as books and films to be under copyright and others which are generally only of use for a very short amount of time (such as newspaper and magazine content) could be even less before they become public domain.

    1. Charles 9

      It used to be 20 years IIRC, and the pace of technology should force the terms to be reconsidered in that light, similar to patents. Also, copyrights and patents should be non-transferrable; they shouldn't be considered as assets but as protections similar to the freedom of speech. Consider them the limited freedom to write and the limited freedom to invent (both without being copycatted). If copyrights were shrunk back to a universal 20 years and nonphysical patents shrunk down to about 3 years, that should be a reasonable compromise (and relax, Disney, we're not touching trademarks, so you don't have to worry about Mickey Mouse).

    2. Mage Silver badge

      Copyright duration

      Life of ACTUAL creator (not the company employeer) + 25 years is ample.

      50 years is too little if you are 18 and life + 50 years is too much.

      1. Charles 9

        Re: Copyright duration

        Not really. Why should a work be protected for so long, especially if made early in life? It would perhaps be best if an author not be allowed to rest on his or her laurels. After all, inventors never got the same privilege.

        1. Pompous Git Silver badge

          Re: Copyright duration

          "Why should a work be protected for so long, especially if made early in life? It would perhaps be best if an author not be allowed to rest on his or her laurels."
          There are two sorts of best sellers. There's the utterly forgettable sort that sells well for a few months before the next best seller in that category comes along. Then there are works that sell modestly, but continue to sell for a very long period because they have some non-monetary intrinsic value. Why should the latter be penalised because they didn't write a pot-boiler instead?

          1. Charles 9

            Re: Copyright duration

            "Why should the latter be penalised because they didn't write a pot-boiler instead?"

            The same things can be said of INVENTORS. Is it his or her fault for inventing something too far ahead of its time? Why don't they get the same luxury?

    3. tom dial Silver badge

      It used to be 14 years, with an option to renew one time for an additional 14 years.

      As for "to protect the small independent content creators," I foresee a problem with the implied non-protection of "big businesses who use it to bully the small people."

      Small independent content creators may not have (in general probably will not have) the resources to monetize their creations, and the big businesses that do have are quite likely to be unwilling to do so without obtaining the copyright. However, if the the copyright is not effectively transferable, it will have no value to them. Like a great many market restrictions, this could reduce the total utility to the people as a whole, whether creator, non-creator producer, or consumer.

      It might be possible to mitigate this by various more or less complex contract provisions, but it is not clear that we would be better off collectively than we are now.

      1. Charles 9

        You can always LICENSE, which at least gives the author some power of revocation. To a big firm with no other options, it can become a case of "Better 10% of something than 100% of nothing."

  8. Anonymous Coward
    Anonymous Coward

    Universal's wasting taxpayer time/money in the courts. Not only should would the defendant get their legal bills paid so should taxpayers.

    All copy writed material should have a digital watermark that sites can scan for, otherwise 'wack a mole' is the only way to do it.

    1. Charles 9

      Any attempt at a watermark would be met with attempts to REMOVE the watermark. Plus copies can be intercepted before the watermark phase. Since a lot of work goes between filming and final encode, it can't be done in the filming phase for risk of being mangled in post.

    2. keith_w

      Copy write vs Copyright

      A copy writer writes commercial copy especially for advertising.

      A copyright reserves the right to use a copy of the copyrighted materials to the copyright owner, who may,or may not, grant permission, usually for a fee, on request, either directly or through a copyright management process such as is implemented by BMC and other music management organizations. Copyright holders have requested that people not use their copyrighted material for their own purposes, such as promoting their political point of view especially when a) no fee was paid, and b) the political point of view was not in accordance with the copyright holders political point of view.

  9. Barry Rueger

    Guess what, you ARE responsible

    Where all of this is heading, whether these cases, or Google and Facebook's struggle with "fake news" and objectionable content, is to an obvious conclusion: just like print publishers, you need well trained editorial staff if you're hoping to maintain quality, trust, and avoid lawsuits.

    It was never realistic to think that armies of random posters, trolls, and "citizen journalists" would avoid <a href="https://en.m.wikipedia.org/wiki/Sturgeon%27s_law”>Sturgeon's Law.</a> In the days of print or broadcast the barriers to entry filtered out the loons and half-baked theorists because the price of printing a book or filming a TV series was prohibitive.

    Now any fool can launch a free website in ten minutes and fill it with unmentionable deck.

    Fifteen years ago at an NPR conference about digital it was pointed out that the real power on the Internet was with the gatekeepers, the organizations that were trusted to select and curate information on behalf of end users.

    I no longer have an interest in tracking down the truth of sketchy reports. I'm much happier if some large organizations that I trust can do it on my behalf.

  10. John Brown (no body) Silver badge

    huge ramifications.

    "One thing does appear to be certain, however: the law is slowly requiring people to put more effort into deciding whether copyright is being infringed before taking action. That is a logical shift but one that is going to have huge ramifications."

    Isn't it the duty of people to make that decision anyway? If you live in a civilised country with laws, aren't you supposed to consider if you might be breaking a law before you take the action? Likewise, aren't you supposed to have some understanding of whether a law is being broken before making an accusation?

    In the case of Big Media copyright trolls, should they not be regarded as "experts in the field" and have a damned good case before getting to a court hearing, never mind a full blown court case.

  11. John Smith 19 Gold badge
    Coat

    TL:DR fair use is fair use.

    I know that's a meaningless tautology but if it's good enough for the British Prime Minister..

    Actually that is sort of the issue. One says a site shouldn't post because it's got people to check posts and the pix are clearly copyright. OTOH is it FU? The other says the holder should check for FU before sending DCMA takedown notice.

    So one's got the emphasis on the holder, one on the site to check FU, or perhaps the poster should check?

    Universal continue to demonstrate that there is no corporate Ahole like a publicly quoted company (legally a person in the US remember) spending stockholders money on layers to defend "corporate freedom," IE the right to do what they want, when they want, to whoever they want.

  12. JimC

    So... big advertising has to be protected from penalties for copyright material being posted all over their sites, and the much smaller content companies have to play whack-a-mole, because its just too expensive for big advertising to police their cash generation?

    And the content owners have to spend a fortune doing the policing big advertising says is impractical, and cop fines if they get it wrong?

    Are we quite sure this is balanced?

  13. Anonymous Coward
    Anonymous Coward

    Look, the thing is that big companies rule the world through their politicians. So stop complaining, bend over and say thanks if they deem you worthy of using lube.

  14. MJI Silver badge

    I have had a video been pulled from you tube

    In car footage, car radio music.

    Yes, not the reason for the video, but incendantal noises in my car.

    Makes me want to pirate everything by that publisher!

  15. lone_wolf

    Jefferson

    when i was a lad back in my middle school days. We were taught that copyright and patents are government enforced monopolies, that was intended to reward the artist/inventor. Therefore it should be temporary and strike a balance between protecting the artist and the rights of the fellow citizens and society in general as music/books/movies are all representations of culture in general. The term of copyright was to be calculated as 1/4 of the average lifespan with an extension that had to be applied for by the holder. The reason for this was so future generations could take that same material and freely reinvent it to be applicable to that generation.

    It was never to be used as a business model which is what we have going on now. Large media companies. That can afford armies of lobbyist, to get their dream of permanent monopoly put in place. That is why you now have lifetime of the author plus 72 yrs, with an automatic renewal. The original intent and purpose has been so obscured and distorted by these media companies. That it may be impossible to restore the balance back may take multiple generations and we are looking at losing all since of fair use.

  16. Andromeda451

    aaaaah the 9th circuit again..

    These alleged wise men really need a reset to reality. The MOST overturned circuit in the USA, IMHO the Ninth Circuit enables parasites (aka: Lawyers).

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