Digital Media

France has adopted a strong antipiracy law, one that may mean those who chronically share unauthorized movies and music online will lose Web access for up to a year.

France's top constitutional court approved a revised plan to penalize those accused multiple times of infringing intellectual property, according to a report published Thursday in The New York Times.

In the spring, the court rejected an earlier version of the law.

Dan Glickman, chairman and CEO of the Motion Picture Association of America, applauded the French court's decision.

"Today's decision is an enormous victory for creators everywhere," Glickman said. "It is our hope that ISPs will fully honor their promise to cooperate and that the French government will take the necessary measures to dedicate resources to handle the enormous task ahead."

Rick Cotton, executive vice president and general counsel at NBC Universal, said: "The French action recognizes that jobs and economic growth in creative industries are under assault by digital theft. We need a safe and secure Internet that enables consumers to access content easily but does not facilitate illegal file sharing that kills jobs in creative sectors."

Under the law, a new agency will be created that will issue termination notices to Internet service providers, and they will in turn cut off access to customers accused of piracy. But first, in cases where the agency wants to terminate service, it must first go through some kind of judicial review.

One of the ways the law was revised to gain acceptance by the French court is to require a judge to review each case before anyone's Internet access is shut down.

It's doubtful that a law like this could be adopted in the United States, at least at this point. Both the film and music industries have shied away from lobbying for a three-strikes law. But they have appealed to ISPs to voluntarily create what they refer to as a graduated-response program. This would call for the ISPs to issue warnings to chronic copyright offenders and potentially cut off service for those who refuse to comply.

There is yet another way that copyright owners could get ISPs to help in their antipiracy efforts, according to Gwen Hinze, international policy director for the Electronic Frontier Foundation.

She says the United States could agree to a three-strikes rule as part of the Anti-Counterfeiting Trade Agreement, or ACTA, being negotiated by legislators in the United States, Japan, the European Union, among others.

In this way, U.S. copyright owners could create a law without any public debate, Hinze said. She called any such attempt "policy laundering."

ACTA members are scheduled to gather again for more talks later this year.

Updated at 3 p.m. to include comments by Electronic Frontier Foundation.

Singer Paul McCartney has voiced his support for the verdict rendered in The Pirate Bay trial.

"If you get on a bus you've got to pay," the former Beatle told the BBC. "And I think it's fair, you should pay your ticket."

On Friday, a court in Stockholm convicted four men connected to The Pirate Bay--Gottfrid Svartholm Warg, Peter Sunde, Fredrik Neij, and Carl Lundstrom--of charges related to copyright infringement. The court sentenced each to a year in jail and fined the group the equivalent of $3.6 million. On Thepiratebay.org, a blog post indicated that the men have filed an appeal.

Fans of The Pirate Bay have condemned the verdict as many in the entertainment industry celebrated the decision. McCartney, who helped produce--along with bandmates Ringo Starr, George Harrison, and John Lennon--such classic songs as "Yesterday," "Help" and "Let it Be," said he thinks people should pay for music, especially when it comes to work from start-up bands.

"The problem is you get a lot of young bands coming up and some of them aren't going to last forever," McCartney said during the interview. "So if they have a massive hit, that's going to pay their mortgage forever. They're going to feed the children on that, and if they don't get that money, if they don't see that money, I think it's a bit of a pity."

These statements are unlikely to be very popular in the file-sharing community. Such members have often said the world doesn't owe recording artists a lifetime salary. Among other the arguments most often cited for downloading music illegally, they say art should be free and major record labels are greedy, overcharge, and don't compensate artists fairly.

For years, digital technology and the Internet have provided a virtual buffet of digital content from which millions have feasted for free.

Whether it be downloading movies illegally found with the help of the Pirate Bay, ripping a movie rental from Netlix to a computer hard drive, republishing an unauthorized copy of a news photograph to the Web, or sharing music on peer-to-peer services, the people who create this content have begun to send a message: "no more free lunches."

Copyright owners around the globe have gone on the attack. They're backing antipiracy legislation in France and Sweden. They're lobbying Internet service providers in the United States to crack down on customers who download files illegally. They're pressuring hardware and software companies to prevent their products from being used as "pirate toolboxes." They're threatening legal action against Google and other sites that aggregate news without permission.

Perhaps the most dramatic example of the new resolve of copyright owners came on Friday, when a court in Sweden found the operators of the Pirate Bay, likely the best known hub for file sharing on the Web, guilty of violating copyright law. In a case that is sure to be appealed, the four men were sentenced to a year in jail and fined the equivalent of $3.6 million.

"There might be just a point here where the culture is changing on what's legitimate behavior online," said Mike McCurry, the former White House press secretary under President Bill Clinton and co-chairman of Arts+Labs, a collaborative group of technology and media companies. "I think perhaps something of a tipping point has been reached where people are finally saying that activity we thought was just okay or skirting around the edge has tipped over into something both dangerous, criminal, and unfair."

The outcome of all the antipiracy efforts may be that jobs are spared and investor value is preserved. It might also mean information and digital entertainment becomes more expensive and less accessible. What the content creators have yet to prove is whether these moves will make any difference. They have little to show for previous efforts.

"It's not that they might not obtain their short term aims," said Danny O'Brien, International outreach coordinator for the Electronic Frontier Foundation, a group that advocates for Internet users and technology companies. "But what is the long-term goal? What is the end game? You take out The Pirate Bay and people will still make copies of movies. People will continue to share music online...It's been five years since Grokster. How has that helped the music industry?"

The $3.6 million the Pirate Bay was fined is only a fraction of what copyright owners say they are losing each year as a result of copyright infringement.

(Credit: Mats Lewan/CNET)

O'Brien is referring to the U.S. Supreme Court decision that peer-to-peer file-sharing services Grokster and Streamcast could be sued for encouraging copyright infringement. The decision effectively forced Grokster out of business and set a legal precedent against peer-to-peer services. Yet, such services continue to operate and illegal file sharing, at least by most measures, has only grown.

Nonetheless, copyright owners aren't waving any white flags.

Layoffs, ISPs, and Kindle
There aren't supposed to be any free lunches, say executives from media and entertainment companies who spoke with CNET News. The tab for all that so-called free content is being picked up by stunt men, makeup artists, secretaries, sound engineers, editors, truck drivers, and lots of other people who work for media and entertainment companies, according to the executives. They maintain that at a time of massive corporate cutbacks and layoffs, media and entertainment firms have to cut a little deeper because of piracy.

So, the stakes are higher now for content creators. They say they will prevail for that reason and because they understand technology better, are marshaling more resources and enjoy more support among International lawmakers than ever before. The most recent endorsement came Friday, when British Prime Minister Gordon Brown told a gathering of techies in London that his government "will support the legal framework that enables the private sector to create content."

Copyright owners also point to other important, if hard-won, victories.

•  YouTube once swelled with pirated clips of movies, TV shows, and music videos. In the last year, however, the site has begun filtering out illegal content. The move came after media conglomerate Viacom filed a $1 billion copyright lawsuit and as YouTube began partnering with Hollywood in a bid to offer premium TV shows and films.

•  Amazon handed over control of the Kindle 2's text-to-speech application when the Authors Guild claimed the function violated copyright law and could cut into sales of audio books.

•  In cooperation with the film and music industries, AT&T has begun testing an escalating system of warnings or graduated response. The ISP says it would never terminate service without a court order. Apparently, not all ISPs are as squeamish (go here to see a copy of a warning letter from Charter Communications).

One important finding from AT&T's test is that the company said it sees a drop in illegal downloading from people who have received a warning. With more experience, copyright owners and ISPs will only get better at discouraging illegal file sharing, said Rick Cotton, NBC Universal's general counsel.

"What's important is all the creators of the broadband Internet be working together to reduce pirating activity," Cotton said. "What needs to be clear is that accessing copyright content illegally is simply not acceptable. We need strong messaging, in the form of technology barriers and speed bumps that make it difficult to access pirate sites. There does at some point need to be some consequence (in graduated response by ISPs). My expectation is that there will continue to be dialogue but ultimately the test is effectiveness."

The end of free?
As for the motivations of media and entertainment companies, there is perhaps one more reason for drawing a line in the sand against piracy now. So far, free hasn't turned out to be a very profitable business model.

The decimated newspaper industry, which has given away stories on the Web for years, is talking about charging for content--again. Digital music services that depended on advertising sales to support themselves, such as SpiralFrog and Ruckus have gone bust. Imeem, an online social network that focuses on music, has staggered recently and has asked financial backers for more support.

Even YouTube, with its 100 million users, has struggled to generate cash. Google CEO Eric Schmidt said last week that he expected the site to one day charge for some content. The statement is a startling revelation coming from the chief of the world's mightiest advertising company, and seems to underscore YouTube's struggles to squeeze profits out of ads alone.

This is not the first ad-market crunch the tech sector has seen. During the dot-com bust in the early part of this decade, ad-supported companies scrambled to charge for services that they once gave away free. Most of those companies disappeared.

Jonathan Zittrain, professor of Internet law at Harvard Law School and author of the book "The Future of the Internet and How to Stop It," says it's too early for free services to be written off.

"I wouldn't say (this is) the end of free yet," Zittrain said. "There is a vibrant set of activities to occupy people's leisure time that isn't fee-for-product. Whether blogging, video making, tweeting, or interacting on social networks, the number of things to do while staring at a screen that require no monetary investment at all has climbed significantly.

"In a down economy," Zittrain continued, "one might surf for an hour rather than spend $15 at a multiplex."

Author's note: I recently asked a public relations executive at a major entertainment conglomerate why, if piracy is hurting everyone, more celebrities aren't speaking out against it. "I've got two words for you," he said. "Lars Ulrich." Apparently comedian Jack Black was willing to risk condemnation from cyber-groovies. The video above is an antipiracy message he made two years ago.

A federal judge has denied the Recording Industry Association of America's request for an appeal of an earlier decision to grant a retrial in its copyright infringement case against Jammie Thomas.

Earlier this year a jury found that the Minnesota woman had violated copyright laws by illegally sharing more than 1,700 songs. The jury ordered the woman, Jammie Thomas, 30, to pay $220,000 to six of the top music labels.

But a few weeks after the verdict was handed down, U.S. District Judge Michael Davis threw out the verdict on the grounds that he originally misguided the jury by indicating that simply the act of making a copyrighted song available for sharing amounts to infringement. A new trial has been rescheduled for March.

In an attempt to avoid another trial, the RIAA appealed the judge's decision to declare a mistrial. But now it looks like the RIAA's latest attempt to gain a conviction for copyright infringement has been thwarted.

This case has been closely watched because Thomas is the only individual charged with copyright infringement by the RIAA who has taken her case to trial. Since 2003, many of the 26,000 persons sued by the industry association have simply settled the cases out of court by agreeing to pay a few thousand dollars. But Thomas, who has been accused of sharing music via a peer-to-peer service, Kazaa, has always maintained her innocence.

On the surface, the importance of the outcome of the Thomas case is somewhat diminished since the RIAA announced a couple of weeks ago that it is taking a different strategy to combating the sharing of illegal copyrighted music.

Instead of suing individual users, the industry association plans to work with Internet service providers. Under this new arrangement, users that the RIAA suspects of illegally sharing music will be asked to stop their activity. If the activity persists after three warnings, ISPs will then cut off broadband service.

So far, the RIAA hasn't disclosed details about how the new process will work, which has made some consumer advocates wary.

Even though the RIAA has revised its strategy toward copyright infringers, the legal questions raised in the Thomas case are very important and remain relevant to how the RIAA plans to battle copyright infringement in the future.

The main legal question yet to be answered is how to determine whether copyright laws have been violated in the digital age.

Judge Davis threw out the verdict in the case because he argued that "actual" distribution of copyrighted music must be proven for the law to be violated. Therefore, the RIAA had to prove that users downloaded the music that Thomas was making available through the peer-to-peer service. Simply making the content available is not a violation of copyright, under this reasoning.

But the RIAA has said that proving that songs have been downloaded from services like Kazaa is nearly impossible. As a result, the RIAA has long argued that making digital music available for others to download illegally is an infringement on copyright.

Over the years, judges have disagreed on this reasoning, and as a result, they have written different opinions on this issue. As a result, it's very likely that the legal issue of what constitutes copyright infringement will eventually be decided by the Supreme Court. Regardless of how the case is decided in March, it's likely that the losing side will appeal. And after the case makes its way through the federal appellate courts, it will likely end up in the highest court of the land.

Michael Robertson, MP3tunes founder, got some good news from a judge. His company wasn't as lucky.

(Credit: Michael Robertson)

A federal judge has dismissed a copyright-infringement lawsuit filed by EMI Group against Michael Robertson, founder of MP3tunes.

The bad news for Robertson, who also founded MP3.com and Linspire is that the judge allowed EMI, one of the four largest recording companies, to continue to pursue the copyright claims against MP3tunes, court documents show.

The case, filed last November in U.S. District Court for the Southern District of New York, was brought by 14 record companies and music publishers affiliated with EMI.

MP3tunes enables users to store music in the so-called cloud. The company's 150,000 customers upload their music into "lockers." They can then access the tunes from nearly any Web-enabled device.

EMI argues that MP3tunes doesn't have authorization to exploit the company's music this way. A representative from EMI couldn't be reached for comment late Wednesday evening.

Few in Silicon Valley know their way around a courtroom as well as Robertson. After founding MP3.com, which also enabled users to upload songs into digital music lockers, the major labels and publishing company took him to court. What's unique about EMI's most recent suit is that the recording company went after him personally.

"Suing CEOs personally is a nasty tactic media companies are engaging in to intimidate individuals," Robertson said in an e-mail. The tactic forces them to "either enter into a settlement or face the possibility" of financial hardship.

District Judge William Pauley said in dismissing the case that he didn't have jurisdiction over Robertson in New York. As for the continuing fight his company faces against EMI, Robertson said "the case against MP3tunes will determine if it is permissible for consumers to store their music in online commercial services for everywhere access, directly analogous to the way they currently store documents, photos, and other personal data in cloud services."

Updated at 12:11 p.m. PDT with comment from a Viacom spokesman.

Video-sharing site Veoh defeated a copyright infringement lawsuit Wednesday in federal court, potentially giving Google's YouTube a tool in its defense against a $1 billion lawsuit filed by Viacom, according to a report posted on PaidContent.org.

Veoh was hit with a copyright infringement lawsuit in 2006 by the Io Group, an adult entertainment company, but it defended its actions, citing provisions within the Digital Millennium Copyright Act. That provision calls for a party to remove copyrighted material from its Web site, when notified by the copyright holder.

A judge for the U.S. District Court for the Northern District of California in San Jose, Calif., found that Veoh was not liable for hosting copyrighted videos that its users uploaded to its site because the company used an automated process to post videos and did not play an active role in getting the material onto its site. The court also found that Veoh removed the material when informed by the copyright holder, putting it in compliance with a "safe harbor" provision of the DMCA law, according to the report.

The ruling may bolster Google's efforts to defend its YouTube video-sharing site against Viacom's $1 billion copyright infringement lawsuit. In a post in The Wall Street Journal, Google issued this statement:

It is great to see the court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights...YouTube has gone above and beyond the law to protect content owners while empowering people to communicate and share their experiences online.

The Google-Viacom case is still pending.

A Viacom spokesman, however, said the ruling does nothing to change the company's stance on the legality of YouTube's operations.

Even if the Veoh decision were to be considered by other courts, that case does nothing to change the fact that YouTube is a business built on infringement that has failed to take reasonable measures to respect the rights of creators and content owners. Google and YouTube have engaged in massive copyright infringement--conduct that is not protected by any law, including the DMCA.