Red Flag Knowledge, Copyright FAQs, And Can STMs Save Copyright?

The DMCA was intended by Congress to be a cutting edge tool to combat piracy. It has turned out to be a blunt tool indeed, given that ISPs have used it as a shield to avoid liability for copyright infringement, even to turn a blind eye to rampant (but highly profitable) piracy.

Activist judges on the Ninth and Second Circuits have also weighed heavily on the scales of justice and tipped what should have been a "balance" in favor of the piratically inclined, and of stiffing the photographers, musicians, authors and artists of the world.

Terrica Carrington explains the highs and lows of Red Flag Knowledge.
https://copyrightalliance.org/ca_post/twenty-years-dmca-notice-and-takedown/

She also suggests that STMs, if only "we" could agree on them, could save copyright. (Standard Technical Measures. How much more exotic and dangerous-sounding is the acronym!)

For anyone who has purchased an ISBN from the MyIdentifiers site of Bowker, there are apparently confirmed suspicions that that site has been hacked relatively recently (in 2018), and credit card information has been compromised.

Nate Hoffelder reveals:
https://the-digital-reader.com/2018/11/02/bowkers-isbn-site-has-been-hacked-and-credit-card-numbers-have-been-stolen/

For the time being, it is a little more complicated to purchase ISBNs.
https://www.isbn-us.com/shop/publisher-programs/bowker-single-isbn-package/

Does one need an ISBN? They are certainly not inexpensive, costing up to $125 for an ISBN plus barcode.
A bar code is needed for paperbacks and hardbacks, as is explained here:
https://www.isbn-us.com/importance-isbn-barcode-2/

The last word is that an ebook does not need a bar code, because it will never be scanned, but it ought to have an ISBN... for every format, according to those selling ISBNs.

For all sorts of FAQs and the answers about all aspects of copyright registration, the copyrightalliance.org has a wonderful resource:
https://copyrightalliance.org/education/faqs/copyright-registration/

For anyone thoroughly spooked by all the credit card hacks and other lawlessness on the wild west web, at least three major credit card services --Bank of America, Citi, and Capital One-- offer virtual numbers that one might use, for instance, only on the Bowker or MyIdentifiers site for buying ISBNs.

The process is a little slower and more complicated, so author Beth Braverman suggests that  it might also be a good idea to use a virtual number at one's favorite impulse-buy online site.

https://www.creditcards.com/credit-card-news/credit-card-virtual-account-numbers.php

PS For anyone who pays a subscription to a music site, and who is not exhausted by surveys already, Editor Baker of Music Tech Policy would very much like music fan feedback. There's probably a good reason for it. Thank you for helping out with their research.
https://www.surveymonkey.com/r/LQDMD5J

All the best,
Rowena Cherry

Happy Easter... and Save The Date... and Safe Harbor

A very interesting situation may be developing around "Safe Harbor", the provision in the Digital Millenium Copyright Act (DMCA) that was intended to shield internet service providers who act in good faith from liability for the misbehavior of their users.

Courts are now paying attention to the concept (in the DMCA) of "red flag knowledge", and whether an ISP can claim Safe Harbor protections on the grounds of "ignorance" (or lack of knowledge) when their employees or assignees "moderate" or "curate" or "select" the user-uploaded content that they will display, (as opposed to allowing the users to post everything and anything without interference or assistance or supervision.)

Perhaps (this author speculates) this may be an unintended consequence of certain sites trying to keep so-called "fake news" off their sites. Or porn. Or actual crimes being live streamed.

Armen N. Nercessian and Guinevere Jobson of the law firm of Fenwick & West LLP penned a fascinating blog about a case where the 9th Circuit reversed a district court.

http://www.lexology.com/library/detail.aspx?g=845462af-ee94-46de-86ba-8342c6a303a3&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-04-14&utm_term=

Perhaps, if there are moderators, they ought to be able to recognize a watermark that indicates that a particular photograph is copyrighted.  This could be interesting. Apparently different Circuits have different views... this may go all the way to SCOTUS.

For those interested, (and I am sure that few of you are!) April 18th from 1:00 pm Eastern Time until around 5:00 pm, the Department of Commerce's Internet Policy Task Force will be hosting a public meeting on Consumer Messaging In Connection with Online Transactions Involving Copyrighted Works.

https://www.uspto.gov/learning-and-resources/ip-policy/copyright/consumer-messaging-connection-online-transactions?utm_campaign=subscriptioncenter&utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

The problem is that consumers who download copyrighted works appear to have a poor understanding of what they can legally do with those downloaded copies. Indeeed!

This author will be listening in. It's been 22 days since I last logged in to BLASTY.co to check the current status of copyright infringement of my four works (Mating Net, Forced Mate, Insufficient Mating Material, and Knight's Fork). It appears that Amazon-owned Goodreads is being implicated for decoration of the pages.  The KROGER grocery chain is giving paid advertising support to a site called something like "colourpalette" that appears to be encouraging folks to infringe copyrights,
while deciding on perfect shades of colors for their artwork or websites.

If you do a Google search for ebooks (perhaps looking for a title and also for ".pdf" and "download" and "free"), there are multiple sites with gd.fs inside the url that appear to go to a page selling hardware. Huge waste of time!  There are also some "Very Dangerous" sites that either Google or Norton will block, if you have their help.

On the subject of warnings about internet nasties, authors who own Trademarks are often sent official looking notices through the mail that appear to demand that the Trademark owner pays a surprisingly large fee for overseas Trademark Licensing, or else for "SEO". Read the fine print. Usually, legitimate demands for Trademark renewal are sent to the Trademark owner's lawyer, and renewals are due every fifth year.

Mary Bleahene of the lawfirm FRKelly blogged recently about Trade Mark scams. If you own one, or are considering owning one, you might enjoy her expertise in "Trade Mark Scams - Beware of Unofficial Notices."

http://www.lexology.com/library/detail.aspx?g=64a088e2-1649-4cec-8faf-d96f83c3fe29&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2017-04-14&utm_term=


All the best,
Rowena Cherry

Sunday Links

Correcting a misconception: a plaintiff is not required to prove that copies are unauthorized.  When you think about it, how would one prove a negative proposition? If there is a contract, either party can prove that there is a contract by producing it. But, if a copyright infringer uploads an illegal copy of an ebook, it would be unreasonable to force the author to provide every contract ever executed to show that there wasn't one with this particular infringer.

This article by McDermott Will and Emery is about the plight of an artist when someone else started selling prints of the artist's works.
http://www.lexology.com/library/detail.aspx?g=595934b7-df7b-4959-9dbd-ddd2dc106099&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-30&utm_term=

Baker and Hostetler LLP commence a series comparing how the most popular social media sites respond to complaints from copyright owners about "user generated" copyright infringement on their platforms.
http://www.lexology.com/library/detail.aspx?g=a8400cb9-cf87-4cb4-95dd-2e35df328c0d&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-30&utm_term=

It may be a tad depressing reading! The BakerHostelter sidebar had some excellent links, one that particularly upset this author is an account from July 2016 of further difficulties for copyright owners (raising of the legal bar) to prove that a website was wilfully blind to copyright infringement.
http://www.lexology.com/library/detail.aspx?g=59d917d8-b851-4d1c-9e40-e36f345e7a6f

"Red flag knowledge" has long been an issue with the DMCA. Now, it gives even greater protection to websites that apparently knowingly host copyright infringing stuff.

Perhaps it is my bias, or perhaps something is in the air.

McDermott Will and Emery also take a look at willful copyright infringement.
http://www.lexology.com/library/detail.aspx?g=22f36369-0155-45e2-93d4-4d5d5ac0e3ef&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-30&utm_term=

If you enjoy The Register, I recommend this:
http://www.theregister.co.uk/2016/07/13/google_piracy_we_really_care/

And also this two-page article (also on The Register) on the unexpected consequences to the set-top box "wars". Who would think that there could be a downside to getting rid of those rented proprietary boxes?
http://www.theregister.co.uk/2016/09/29/fcc_death_vote_golden_age_tv/

Ending on a more positive note, European courts are ruling that hyperlinks to illegally uploaded copyrighted works stored or hosted elsewhere is copyright infringement.

http://www.lexology.com/library/detail.aspx?g=c4ee9be1-8731-44dd-ac35-b5a1c14a2b54&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-29&utm_term=

Thanks to Squire Patton Boggs for that!

That's a lot of links, but, as always, this author has brought you only the most interesting out of hundreds of copyright-related topics.

All the best,

Rowena Cherry