WARNER BROS. ADMITS ISSUING TAKEDOWN NOTICES FOR FILES IT NEVER SAW AND DIDN'T OWN COPYRIGHT TO

In a Monday court filing, Warner Brothers admitted that it has issued takedown notices for files without looking at them first. The studio also acknowledged that it issued takedown notices for a number of URLs that its adversary, the locker site Hotfile, says were obviously not Warner Brothers' content.

Hotfile has been locked in a legal battle with Hollywood studios since February; the studios accuse the site of facilitating copyright infringement on a massive scale. Hotfile counters that it is immune from liability for the infringements of its users because it complies with the notice-and-takedown procedures established by the Digital Millennium Copyright Act. But Hotfile has also tried to turn the tables by arguing that one of the studios, Warner Brothers, has itself violated the DMCA by issuing bogus takedown requests.

Warner Brothers also tacitly acknowledged removing a free software title, which it characterized as "software that had been posted alongside infringing Warner content in order to facilitate the rapid downloading of the infringing Warner content." The studio also requested removal of some gaming software, though it insists it did so with the permission of the relevant copyright owners.

The studio also "admits that it did not (and did not need to) download every file it believed to be infringing prior to submitting the file's URL" to the Hotfile takedown tool. That's because "given the volume and pace of new infringements on Hotfile, Warner could not practically download and view the contents of each file prior to requesting that it be taken down."

This is interesting because the DMCA requires a copyright holder issuing a takedown notice to state that it has a "good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." It's hard to see how anyone at Warner Brothers could have formed any beliefs—good faith or otherwise—about files it admits that no human being at Warner had even looked at.

PRESSURED BY US, CANADIAN DMCA EXPECTED TO PASS

Once more into the breach goes the government of Canadian Prime Minister Stephen Harper, resubmitting its sweeping revision of Canadian digital copyright law for Parliament's consideration. "Our Government received a strong mandate from Canadians to put in place measures to ensure Canada's digital economy remains strong," declared James Moore, Minister of Canadian Heritage and Official Languages as he introduced the announcement of law C-11—The Copyright Modernization Act. "This bill delivers a common-sense balance between the interests of consumers and the rights of the creative community."

News accounts say that C-11 is an exact duplicate of Bill C-32, which croaked when the 2010 Parliament dissolved without passing the bill. Now, as then, one of the biggest points of contention will be the provisions regarding "digital locks." These add up to a Canadian version of the United States' Digital Millennium Copyright Act, with its DRM anti-circumvention provisions that make a variety of fair dealing (or fair use) activities untenable.

But critics of that portion of the legislation, such as Canadian law professor Michael Geist, suggest that this time around, the government will get its way. "After years of false starts, it is clear that this copyright bill will pass, likely before the end of the year" Geist writes. "While there is much to like in the bill, the unwillingness to stand up for Canadians on digital locks represents a huge failure. Moreover, it sends the message that when pressed, Canada will cave."

The pressure to give in comes in part from the White House, revealed by a WikiLeaks cable to have been quite actively lobbying Canada to get on the IP enforcement bandwagon for years. Around 2007, the Canadian Prime Minister's office went so far as to share with the US the mandate letters it sent to two key ministers on copyright, according to the dispatch.

MAJOR ISPs AGREE ON COPYRIGHT INFRINGEMENT ACTIONS

AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon have reached an agreement with music and movie publishers that will help enforce copyright infringement while giving the ISPs a chance to level with their customers. According to Ars Technica, copyright owners will continue to scour the dark corners of the net looking for anyone downloading and illegally sharing their content. If an IP is found to be downloading or sharing illegal content — likely via P2P networks — the music and movie companies will alert the ISP directly. ISP’s will then send a note to the offending customer, without passing off private information unless there is a court order to do so.

Users may get up to four alerts from the ISP, but after that the ISP can choose to start implementing “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter.” If a user believes he or she has been targeted without merit, an appeals process can be started for a $35 fee but, as Ars Technica notes, it’s unclear who will be the judge in that process. The six (yes, SIX!) step process is listed below.

First Alert: In response to a notice from a copyright owner, an ISP will send an online alert to a subscriber, such as an email, notifying the subscriber that his/her account may have been misused for content theft, that content theft is illegal and a violation of published policies, and that consequences could result from any such conduct. This first alert will also direct the subscriber to educational resources which will (i) help him/her to check the security of his/her computer and any Wifi network, (ii) provide explanatory steps which will help to avoid content theft in the future and (iii) provide information about the abundant sources of lawful music, film and TV content.

Second Alert: If the alleged activity persists despite the receipt of the first alert, the subscriber may get a second similar alert that will underscore the educational messages, or the ISP may in its discretion proceed to the next alert.

Third Alert: If the subscribers account again appears to have been used for content theft, he/she will receive another alert, much like the initial alerts. However, this alert will provide a conspicuous mechanism (a click-through pop-up notice, landing page, or similar mechanism) asking the subscriber to acknowledge receipt of this alert. This is designed to ensure that the subscriber is aware of the third copyright alert and reminds the subscriber that content theft conducted through their account could lead to consequences under the law and published policies.

Fourth Alert: If the subscribers account again appears to have been used for content theft, the subscriber will receive yet another alert that again requires the subscriber to acknowledge receipt.

Fifth Alert: If the subscribers account again appears to have been used for content theft, the ISP will send yet another alert. At this time, the ISP may take one of several steps, specified in its published policies, reasonably calculated to stop future content theft. These steps, referred to as Mitigation Measures, may include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter. ISPs are not obligated to impose any Mitigation Measure which would disable or be reasonably likely to disable the subscribers voice telephone service (including the ability to call 911), e-mail account, or any security or health service (such as home security or medical monitoring). The use of the mitigation measure is waivable by the ISP at this point.

Sixth Alert: Whether or not the ISP has previously waived the Mitigation Measure, if the subscribers account again appears to have been used for content theft, the ISP will send another alert and will implement a Mitigation Measure as described above. As described above, it’s likely that very few subscribers who after having received multiple alerts, will persist (or allow others to persist) in the content theft.

BILL TO MAKE STREAMING ILLEGAL CONTENT A FELONY INTRODUCED

Copyright owners have been frustrated by a disparity in federal law which views the illegal P2P downloading of copyright material as a felony, but if that same material is delivered via streaming it is not. The Commercial Felony Streaming Act would, just as its name implies, place the same legal consequences as downloading on the streaming of copyright material.

The act, which has received bi-partisan support and is sponsored by Senators Amy Klobuchar (D-MN) and John Cornyn (R-TX), cleared its first legislative hurdle by being voted out of the Senate Judiciary Committee for presentation to the floor of the Senate. If approved by the Senate, the bill would then make its way over to the House. Renewed focus on rectifying the legal disparity between downloading and streaming came as the result of legislative recommendations presented to Congress by Victoria Espinel, the Office of U.S. Intellectual Property Enforcement Coordinator, back in March. The recommendations focus on ways to improve intellectual property (IP) enforcement efforts and include shoring up a disparity in how IP is enforced based on the method of distribution.

The wording of the legislation is careful not to target individuals who stream videos without the purpose of profit. In fact, the act clearly states that an offense, which could lead to imprisonment of up to five years, would need to consist of 10 or more public performances of one or more copyright works during any 180-day period. Also, the copyright work must have a retail value that exceeds $2,500 or a license worth more than $5,000. As one would expect, a number of industry groups applauded the approval of the act by the Committee including the American Federation of Musicians (AFM), AFTRA, Directors Guild of America, IATSE, SAG, Independent Film & Television Alliance, the Motion Picture Association of America, Inc. (MPAA) and the National Association of Theatre Owners (NATO).

GOOGLE PULLS EMULATORS FROM ANDROID MARKET

If you're an Android gamer, chances are you've heard of Nesoid, Snesoid, Gensoid, N64oid, Ataroid, Gearoid and Gameboid: they're all video game console emulators developed by yongzh, and many ranked among the most popular paid apps on the Android Market. This week, they've got something else in common, too, they've all been abruptly removed.

Following a complaint from Sega, two emulators were nixed late last month, but we're hearing that Google has since revoked yongzh's developer privileges, just like PSX4Droid comrade-in-arms ZodTTD.

There is some speculation however that yongzh violated the GPL licenses of the open-source code he used as a base for his emulators violating copyright.