Do you remember conservative radio talk-show host Michael Savage? He sued a Muslim advocacy group for copyright infringement because it dared to quote what he said on the radio as part of an advertiser boycott.

A U.S. District judge tossed the suit, and supported the doctrine of Fair Use, saying that anyone who listens to a public broadcast is entitled to take excerpts and use them for purposes of comment and criticism. See EFF’s Takedown Hall of Shame for other prime examples of copyright abuse.

Recently, one of my local television stations asserted copyright through a bogus DMCA takedown notice to get a blooper by weatherman Peter Bouchard removed from YouTube.  Of course, the more WHDH tried to get copies taken down, the more attention this unfortunate, though funny, incident received. The mistake of Mr. Bouchard was compounded by the legal mistake of not considering the fair use of this segment – and the PR error of not considering the Streisand effect.

Unfortunately, some bogus takedown notices are effective in censoring critics and clowns in legitimate public speech. Archer Daniels Midland (ADM) has been on the receiving end of lots of criticism recently. The recent Matt Damon film, The Informant!, was about ADM and price fixing. They must be tired of being the poster child for corporations operating above the law.

So ADM responded with copyright takedown notices when someone took a bland and boring video of their CEO droning on about their role in the economy and added in a track of what she “might really be thinking.”

Unfortunately, I can’t show you that video. The takedown notices worked. That use of Patricia A. Woertz words is protected — not through law but through procedure, as ADM’s bogus takedown notices would have to be challenged.

So does this tactic really work?

I’ve posted an alternative video below, explaining how ADM (a major underwriter of all things Bob Dole) fixed prices with competitors. If you take six minutes to watch the video, or repost it, ADM’s bogus takedown notice will in fact have had an unintended consequence.

We’ve previously blogged about crime on Craigslist. This post is about something different: retribution.

Allow me to confirm what you may already know: When newspapers consider what’s happened to their business model and who is responsible, the first name that comes to mind is often Craigslist.

Craigslist Decimated Print Budgets by Giving Away Classifieds
Newspapers used to receive more than 30% of their revenue through classifieds, for everything from job listings to rental ads to roommates and bandmates trying to find each other.  A few for-free job boards, such as Monster, cut it to jobs listings. However, Craigslist gave away all classifieds with no apparent revenue plan, and drove that part of the print profit line to near zero.

Print Classifieds Also Contained Adult Content
Before Craigslist, alternative papers got far more than 30% of revenue through classifieds, and developed a whole industry of personal ads, which ranged from dating to offers of casual sex to prostitution. The Boston Phoenix got so good at this they created a spin-off which helps more than 200 media companies, including newspapers, broadcasters and web properties, make money through personals. Here are the Boston Phoenix‘s own ads for adult services. Craigslist’s erotic ads would seem to have nothing on them—except for being free.

Absence of Malice?
The financially imperiled Boston Globe provides what would appear to be biased coverage:

Craigslist Known as Aid and Enabler

Philip Markoff allegedly found two victims the same way: on Craigslist.

The case has shone a national spotlight on the company and its dominant role as one of the country’s largest vendors of sex-for-sale services online.

Really? While Craigslist is absolutely an advertising venue, that hardly makes it a vendor of “sex-for-sale services.”  First, “vending” means “to sell.” Craigslist wasn’t party in the sale of any services, and with the exception of a few jobs ads, it traditionally doesn’t charge for listings at all.

In December we covered the company’s decision to require “erotic service” advertisers to verify their identity by making a small credit-card purchase, from which all funds are donated to preventing sexual exploitation. We also noted this was done at the request of over 40 state attorneys general.

Also, note the opening sentence frames Craigslist as this crime’s theme. Yes, Mr. Markoff allegedly found both his victims through Craigslist. He also met them the same way: in hotels. In fact, the hotels financially benefited more directly by hosting these meetings than Craigslist did.

Craigslist Turns Nurses into Call Girls
Reuters frames its coverage of Craigslist’s role by profiling Marissa, who decided to switch jobs from nursing to prostitution thanks to the online ad service. I’d offer the 1990 film Pretty Woman (see trailer), which showed prostitution as a relatively wholesome, fun way to transform yourself for the better, as doing far more to popularizing the sex industry than any advertising venue.

The alleged crimes of Philip Markoff are catnip for traditional media. There’s sex, murder, techno-fear and retribution against the free bulletin board that gutted classified budgets across the news industry. As the Globe builds out its photo album of everyone associated with this crime, it and other news organizations are becoming players in this opera, where sensationalistic reporting and a little vindictive payback are delivered together.

While commenting on New Zealand copyright law, Google makes some interesting facts known about the DMCA. According to an article in New Zealand PCWorld:

Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.

These comments were made by Google at New Zealand’s Telecommunications Carriers Forum concerning that country’s copyright laws. The infamous Section 92A states that ISPs must cut internet service to people if a copyright violation has been asserted – not proven. A trial is not required, nor is proof, and no recourse is offered if the allegations prove false.

Google’s comments continue:

“Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement.

“Section 92A undermines the incredible social and economic benefits of the open and universally accessible internet, by providing for a remedy of account termination or disconnection that is disproportionate to the harm of copyright infringement online.”

Considering the history of the US’s DMCA, and similar if not worse legislation in Canada, Australia, New Zealand and the UK, what is up with English-speaking countries and onerous, jackass copyright laws?

As much as the language’s greatest writer Shakespeare would have been an ardent supporter of artists getting paid for their labors (lost or otherwise), he would not have supported the crown’s draconian rule over the performances of his plays, nor their written forms, supposedly on his behalf. In fact, I suspect he’d satirize such over-reaching zealotry in the form of a twisted, copyright-mad monarch à la Richard II.

In what can be compared to finding the Holy Grail, the results are in for Monty Python’s efforts to encourage their legion of fans to refrain from supporting illegal uploading of their work onto the internet and buy Python DVDs. In a previous article, we described how Python was building their own YouTube channel, which will feature premium-quality versions of their sketches in order to promote their DVD sales. Their approach was simple: instead of getting angry and launching Inter-Continental Ballistic Lawyers, the guys decided to give out high-quality samples, hoping people would be as hungry as Mr. Creosote in a sweet shop for more.

Well, it worked. Frightfully well.

According to many sources, when comparing the before-and-after sales stats, the increase in DVD sales on Amazon as a result of this straightforward, honest marketing gesture has increased by 23,000%.

Splunge!

Python is making far more money than probably all those who illegally uploaded their stuff combined. With all the extra lolly, I’m sure each Python will soon be able to afford a luxury yacht (even if it some will actually call them Throat-Warbler Mangroves).

Sorry. Couldn’t resist.

It seems that Harvard Law Professor Charles Nesson has really put a bee in the RIAA’s bonnet. As part of the Sony BMG vs. Tenenbaum case, Nesson filed a motion to compel a deposition of Matthew Oppenheim, a legal heavy-hitter for the RIAA. As a result, the RIAA countered with the threat of certain sanctions under a federal rule in civil procedures dealing with “Failure to Make Disclosure or Cooperate in Discovery; Sanctions,” known as Rule 37.

Basicaly, Nesson is trying to compel testimony by Oppenheimer, who has represented the RIAA in many cases. The law firm of Holme Roberts & Owens, LLP, operating on behalf of the RIAA, believes such a motion is groundless, and would introduce the obvious problems associated with privileged communications.

However, it appears Nesson is not going to withdraw the motion, given his response (available from beckermanlegal.com):

our motion stands

we welcome your opposition

The next step may be a specification as to the details of the testimony that Nesson wants from Oppenheimer. Given the public stance by the RIAA not to pursue similar legal actions in the future, this may represent a turning tide of existing defendants aggressively going after the RIAA.

Some time back, Usefularts reported on the failure of the RIAA’s “Making Available” Argument – which stated that simply having files that could be downloaded is the same as if they had been, ignoring any concept of intent.

Well, the other shoe has fallen. The RIAA has filed for a voluntary dismissal for the first court case in which that argument was tried, Atlantic Recording v. Brennan.

One can hope this marks a trend for all cases predicated upon such arguments.

Among the most downloaded of all YouTube videos are anything to do with Monty Python. Thank God. You can see clips from their TV show and movies, all for free. Free, you free-loading cheap bastards. Short on shekels, are we? Too skint to cough up the occasional fiver for quality senseless comedy? You make me sick, you do.

Well, now you can get your Monty Python fix in all its digital, high-quality-video glory. Rather than prosecuting every little oink who has illegally uploaded copyrighted material, the wise elders of Python have taken a very different tack: Instead of doing the typical large-corporation thing of attacking one’s customer fan-base, why not use the internet to create demand for sales of your videos? No sense sending in the Spanish Inquisition, is there?

What a rare bit of wisdom in this age of digital rights management, confiscatory fines and dead parrots.

They truly get it. Now THAT’s completely different.

Right, now go off and view the Monty Python Channel and buy their videos, before I taunt you a second time.

Nee!

Toyota wants fan-submitted desktop wallpapers that show Toyota, Scion, or Lexus cars removed from DesktopNexus.com, a popular wallpaper sharing website.

In an article on TorrentFreak:

The site’s owner, Harry Maugans, contacted Toyota to clarify. He was told that all images featuring Toyota vehicles should be removed, even images with copyright belonging to others.

Maugans said: “Their lawyer, Garrett Biggs, told us that if we wanted them to specifically identify their images, we would have to pay for them to do so.” Maugans also said he was afraid it would come to a lawsuit, fearing the attrition effect that is so common now in copyright disputes. Toyota, with cash assets of over $23 billion, can surely afford to spin out the legal costs in an attempt to bankrupt the site — the same strategy that is often used to “encourage” a settlement in RIAA cases.

Yet, Toyota has also been cagey. These demands have not been sent in the form of a DMCA notice. While sending such a notice would require the takedown, it also requires that the person sending the notice legally certify that they are legal representatives for the copyright holders at issue. Making a false statement is ‘”punishable under penalty of perjury,” which is not taken lightly in US courts.

This harkens back to a similar stupid maneuver by Ford against a Mustang enthusiast club who placed — can you believe it — Mustangs in their club calendar.

Annoying fans of the product when Toyota sales are down 25% doesn’t seem like good marketing or public relations. These days, car companies need all the allies they can get.

I’ve previously blogged here about the economics of scalping, and my belief that anti-scalping laws prevent beneficial markets. So, I’m glad to see Stub Hub win a case which sets a precident for it to receive protection as an online service.

In January a class action law suit was brought against Stub Hub and its owner eBay. The complaint’s gist was that Stub Hub and its owner eBay profited by and encouraged scalping, which is a criminal offense in Oregon. The class of “disappointed fans” sought damages based on the increased price of tickets created by the secondary market which Stub Hub has built.

Judge Marilyn Litzenberger ruled that the claim was not supported by Oregon law, which does not provide civil penalties for scalping. Then she further ruled that Stub Hub would be immunized from scalping liability due to the Communications Decency Act’s Section 230 “safe harbor” provision for internet service providers.

Judge Litzenberger’s extention of Section 230 protection to Stub Hub will certainly be cited in future cases. It may also encourage franchizes to create their own secondary “fan-to-fan” markets, and for media outlets such as ESPN to partner with Stub Hub.

FCC Commissioner McDowell Proposed Crackpot Threat to Bloggers
While addressing the conservative Heritage Foundation, FCC Commissioner Robert McDowell made a lame attempt to suggest this election is about preventing Democrats from using the FCC to regulate content on Internet blogs. Of course, there’s no legal basis for the FCC to regulate content on personal servers, and network neutrality focuses on providing access to data regardless of its format, let alone its content. However, Commissioner McDowell’s FCC has considered requiring censorship (filtering) of public Wi-Fi networks. So, Commissioner, what’s this election about again?

Why Should Terrorists Get Free Music?
Copyright societies can be relentless about collecting fees from nursing homes, hospitals, prisons and such, on the basis that these are “public” places. Never mind that the audience is captive and it’s their home (like it or not). So what about music used as torture in Guantanamo? Though international human rights may not apply there, what about international copyrights? This question exposes the absurdity of both accepting torture and copyright over-reach. See Wired article.

Wikipedia Wins “Dumbest” Defamation Lawsuit
Literary agent Barbara Bauer sued the Wikimedia Foundation over posted statements that identified her as among the “dumbest of the twenty worst” literary agents and claimed that she had “no documented sales at all.” This New Jersey judge dismissed the case, citing protections afforded to online service providers under Section 230 of the Communications Decency Act. See the EFF’s press release.

WhoCanSue.com
This prelaunch website aims to become the Lending Tree of lawyers. Of course, currency is a commodity, so it’s easy to bid for, but finding the right lawyer depends on an array of personal factors. Perhaps WhoCanSue should be trying to be eHarmony for lawyers and clients?