Wayne Borean
Published by Wayne Borean
Smashwords Edition
Copyright 2008-2011 by Wayne Borean
Creative Commons Attribution 2.5 Canada License
ISBN 978-0-9877226-1-4
Writer/Publisher
398 Alper Street
Richmond Hill, Ontario
Canada L4C 2Z4
Copyright Wars Volume 2
Copyright Wars is a collection of blog postings on Copyright from two of Wayne Borean’s blogs. The first series were from Cranky Old Nutcase, a blog on the free Blogspot platform that he originally started to practice writing skills. Later posts were on the Madhatter.ca website that he was given as a Christmas present.
They are being reprinted here partly for historical interest, and partly as a warning to artists. Politicians and industry are not working towards our best interests, and we must remain vigilant against them.
This book is dedicated to my senior editor, Sam Borean. Sam wasn’t human. He couldn’t talk, but his love was unstinting.
The first four books in the Copyright Wars series were written with Sammy cuddled up against me on the couch, or sometimes acting as a laptop desk.
Sam died when he saw a rabbit in late May of 2011, and in typical Beagle style, took off after it like a shot. We still don’t know where he managed to get out under the fence, just that he had to have gone under it, he was too short to have jumped it. He died when the rabbit he was chasing ran across a road, and Sammy followed. Beagles don’t understand the rules about looking before crossing the road.
Rest in peace Sam.
Sam Borean
Index
U.S. Ambassador David Jacobson – Intellectual Property Rights
Open Formats - I’m Moving all Mom’s Poetry to Open Document Format
Graduated Response and Copyright - a Practical Solution for Copyright Infringement
More News From The United Kingdom On Davenport Lyons, ACS Law, and Tilly Bailey & Irvine
James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 1
James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 2
James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 3
Corporate Copyright Scofflaws 0004 – The Motion Picture Association of America
Corporate Copyright Scofflaws 0005 – The UK News Media – Including Rupert Murdoch
A Call For Disclosure – Who Do The Professionals Represent And Why Are They Hiding The Connection?
The Cover Letter I Used For My Request For Disclosure – Copies Were Sent To The Government
What Did The Three Amigos Tender To The Canadian Copyright Consultation?
Why Is Michael Geist In Favour Of Digital Rights Management/Technical Protection Measures?
Canadian Copyright Consultation Opposed By A Little Known Canadian Lawyer Richard Owens
Digital Rights Management and/or Technical Protection Measures Cause Climate Change
More Legal Shenanigans In Britain – Which? vs ACS:LAW “The UNUSUAL suspects”
Nina Paley Has A Wonderful Cartoon About DRM I’d Like To Share With You Thanks To Her Permission
What Are The Fiduciary Duties Of Heritage Minister James Moore?
The Enemy Of My Enemy Is My Enemy Or Why VP8 Is Important Even If It Came From Google
Copyright News Update – Monday May 31st, 2010 – Links And Comments
Preface
I became involved in the Copyright discussion in Canada inadvertently. I’d made use of copyright as a software engineer, singer/songwriter, and writer, and also as one of the founding members of the FilKONtario music convention.
My wife is a singer/songwriter. My daughter is a professional photographer. One of my sons is a writer, who has written a series of television scripts. My mother-in-law is the Poet Laureate of the Temiskaming District. I know a lot of people who are either writers, poets, artists, photographers, singers, singer/songwriters, software engineers, videographers, and other creative types who rely heavily on copyright.
I have a strong reason to be interested in copyright. From this point on I’m going to use the term artist to cover everyone who produces works covered by copyright.
One problem is that none of the Federal parties, including the Conservatives, the New Democrats, the Liberals, the Bloc Quebecois, the Greens, or the Pirate Party, really has a damned clue about Copyright. Nor do they have a clue about what artists want. One of the best is the New Democrats. Charlie Angus, the NDP MP for Timmins, is a musician.
The Conservatives and Liberals suffer from a severe problem, none of the major players in either party is a professional artist. This is a problem that artists have contributed to, by not becoming politically involved.
Another problem is that we have a series of people who are lying by omission to the people of Canada. When a lawyer who is working for Music Canada has an opinion piece published in a major Canadian newspaper, and he doesn’t list his affiliation, he is lying to the public. I understand that his client might not want him to state the affiliation, and have no problem with that. However I think that if the client is unwilling to let the lawyer state the affiliation, than the lawyer should be required BY LAW TO REMAIN SILENT.
When I was able to discern a connection, and publish an article about it, this made me less than popular with Graham Henderson, the President of Music Canada, formerly known as the Canadian Recording Industry Association. Graham would rather that the connections of his pet lawyers back to Music Canada not be known.
Because the entire fuss about copyright law in Canada isn’t about benefitting the artists, and it never has been. It’s about benefiting a small number of off-shore corporations. These corporation do not have the best interests of Canada, Canadian artists, or Canadian culture in their aims. Instead they short term bottom-line considerations are their main consideration.
There’s nothing wrong with making money. Ask any artist. We love money. What’s wrong is lying to get it. That we don’t like.
Wayne Borean
September 1, 2011
John Doyle, do you know what you are talking about?
Posted on January 12, 2010 by Wayne Borean
Barry Sookman tweeted about an article called Eight things worth proroguing on TV: Pirating TV shows from BitTorrent. Now I’ve learned that Barry’s an innocent lad. He believes whatever anyone writes. In this case he read an article written by John Doyle, the television critic at the Globe and Mail, titled ‘Just Copy Our Glorious Leader‘, in which John wrote:
2. Pirating TV shows from BitTorrent and other sites. Honestly, could people quit shoplifting TV shows for a while? No, you’re not sticking it to some super-rich actor/writer/director or showbiz conglomerate. A few years ago, at the Television Critics Association press tour in Los Angeles, Canadian critic Bill Brioux thought he saw a familiar face among the large group of stenographers who transcribe the press conferences. He thought the guy looked a lot like Max Gail, best known as Detective Wojo on the long-running series Barney Miller . It was indeed Max Gail – working as a typist. Apparently, after his wife’s death from cancer, Gail had stayed home to raise the kids and took odd jobs when necessary. He and the kids could have used some royalties.
Now unlike Barry, I’ve got a nasty, mean, dirty, suspicious mind. I don’t believe much of anything that I’m told. I also tend to think over what I’ve been told (or read) very carefully. In my experience what people think they know, often isn’t right.
So let’s look at what John has said. He mentions an actor named Max Gail, who used to have a role in a TV show called Barney Miller, who he says was working as a typist. Bill Brioux meet this guy a few years ago, and he was working as a typist. That through up a red flag. Typists haven’t been employed regularly since the middle 80s, when word processing software became popular on computers. Barney Miller ended in 1983. Hum, this just doesn’t sound right.
OK, so I checked out Max Gail’s profile page at IMDB, and at Wikipedia. Max married his first wife in 1983, she died of cancer in 1986. If the story above is true, he wouldn’t have been working as an actor in the years following 1986. Curiously, IMDB says he worked every year up until 2002! When did that leave time for a career as a typist?
So tell us John – do you believe in fact checking?
Wayne Borean
Tuesday January 12, 2010
*****
Note: I attempted several times to reach John Doyle by phone and by email, but was unsuccessful. Nor did his newspaper bother to respond to my attempts to get a comment on the level of fact checking required for publication.
U.S. Ambassador David Jacobson – Intellectual Property Rights
Posted on January 15, 2010 by Wayne Borean
Q: Did you hear much concern about Buy American provisions? It has been suggested that if Canada would only adopt stricter U.S.-style intellectual property rights laws, then we would be quickly rewarded with an exemption from Buy American rules. Do you agree?
A: I heard a lot about Buy American. I probably heard more about Buy American than any other single topic. At some meeting in Alberta, I said it was a pleasure to be at a meeting for two hours and not hear comments on Buy American—at which point the first question was about Buy American. I understand the concerns the Canadian people have. The President believes very strongly in free trade. There have been a lot of discussions and they have been constructive. That’s all I can say.
As for whether if only we could solve intellectual property rights, then Buy American would go away, I do not agree with that. They are two separate issues and stand on their own. We are very concerned about intellectual property laws in Canada. We don’t think they are in the best interest of Canadians or Americans, but that is a separate issue that we have not linked.
Well, Ambassador, a lot of Canadians don’t think U.S. Intellectual Property Laws are in the best interest of Americans or Canadians either. The Digital Millennium Copyright Act of 1998 comes to mind. Do you have any proof (specifically peer reviewed studies) proving that the DMCA has any benefit to the citizens of the United States? And if you don’t have any proof, when do you intend to provide it?
For that matter, when are you going to admit that the United States is not in compliance with either of the WIPO copyright treaties? And when is the United States going to bring itself into compliance with the Berne Convention?
It would be nice to have these questions addressed, before you tell us how to re-write our copyright laws. After all, what’s good for the goose, is good for the gander.
Oh, and a final comment – do your own citizens approve of the actions of your government in trying to export the DMCA to other countries? And if they don’t, why are you doing it? Don’t bother mentioning treaties that you haven’t implemented as the reason. Rather, you should consider that you come from what is supposed to be a Democracy. Supposed to be. From my viewpoint it seems more like a Corporate Oligarchy.
*****
Note: My Twitter account received the following notice a couple of hours after I published the above article on January 15, 2010. I spent the next ten minutes doubled over with laughter.
Hi, Wayne Borean.
US Embassy Ottawa (usembassyottawa) is now following your tweets on Twitter.
A little information about US Embassy Ottawa:
3018 followers
2253 tweets
following 2572 people
You may follow US Embassy Ottawa as well by clicking on the "follow" button on their profile.If you believe US Embassy Ottawa is engaging in abusive behavior on Twitter, you may report US Embassy Ottawa for spam.
US Embassy Ottawa may not appear in your follower list. US Embassy Ottawa may have decided to stop following you, or the account may have been suspended for a Terms of Service violation.
Oink.CD – Oink’s Pink Palace Part One
Posted on January 17, 2010 by Wayne Borean
The acquittal of OINK.CD admin Alan Ellis has caused a firestorm of confusion across the net, with comments flying fast and furious claiming just about anything you can imagine, and a lot you probably couldn’t imagine. The problem is that so far we don’t know a lot. After the initial raid the police and prosecutor in England went silent, and to the best of my knowledge some of the major pieces in the case (like the original search warrant) are still not available for analysis.
And of course the reporting of the case was variable. Some of the articles seemed credible, others, including the original BBC report were incredulous to say the least.
Still, after reading a blog posting by Pangloss, I thought I’d take a shot at it. Pangloss seemed a bit confused about what happened and why, and with good reason. But if you are willing to do enough digging, there is information available, and I’m a stubborn sort.
OINK.CD (full name Oink’s Pink Palace) was a BitTorrent tracker. BitTorrent is a file transfer protocol, designed to allow fast efficient file transfers, which was invented by Bram Cohen, the founder of BitTorrent Inc. BitTorrent as a protocol, puts a lot less stress on the central server, as each user who downloads part of a file, also makes that part of the file available. In practise this means that as a Torrent is first seeded it will run slowly, speeding up as more users have parts of it. This makes it especially useful for distributing large files, such as operating systems (Linux, Solaris, and BSD kernel based operating systems are usually distributed using BitTorrent). World of Warcraft is another heavy BitTorrent user, and the Canadian Broadcasting Corporation has used it to distribute TV shows.
As a tracker, OINK.CD did not host any files. In effect a Torrent tracker can be considered a specialized search engine.
Now we get into the fun stuff – the above is fact (to the best of my knowledge). The rest of the article is speculation based on news reports and press releases, which may or may not have been accurate (and even the ones that were accurate may have been wrong – if I quote you, and you don’t know what you are talking about, it doesn’t matter how accurate my quote was – it’s going to be wrong).
OINK was an invite only tracker. You had to have an invite to get access, which meant that you had to know someone who was a member in good standing. I have been told that there was no cost to join. Users had to maintain a certain upload/download ratio, specifically for every megabyte you downloaded, you had to upload the same. No leaches need apply. If you weren’t able to maintain a good ratio, too bad. Unlike some sites, donations were NOT credited towards your download ratio, and were totally voluntary.
Note that this is what I’ve been told. I don’t know if my source really did have an account there.
The first that most people heard of OINK, was when a writer named Darren Shan hired the law firm of Addleshaw Goddard, claiming that people were downloading his books from OINK. OINK at this time was run from OINK.ME.UK, however the law firm went after the Domain registrar, and this cause OINK to change the domain to OINK.CD in July of 2007. While this trouble appears to be separate, it is possible that the news about OINK’s problems may have raised it’s profile with the music industry, even though there were claims by the IFPI that they had been investigating OINK for two years. IFPI claims have to be looked at carefully all through this case – for example they claimed that OINK was illegal, and the jury apparently found that it wasn’t.
The second major story about OINK to hit was the raid and arrest, on October 23, 2007, which was covered by the BBC, TorrentFreak, Gazette, Sun, and the Guardian. To the best of my knowledge, the Guardian was the only news site to publish any sort of correction, and as Bobbie Johnson of the Guardian pointed out, a lot of the information from the Police and IFPI (International Federation of the Phonographic Industry) was obviously incorrect. You can still view the IFPI Press Release on their website. Curiously the Cleveland Police have removed all traces of of the press release from their site, and there is nothing at archive.org or in the Google cache. A search for ‘operation ark royal’ shows up a link for an updated press release, but you get an ‘access denied’ message when you try to access it. I have emailed the Cleveland Police for copies of the press releases, and will update this when and if I receive them.
A very interesting take on the situation was posted at Sceptic Isle, titled ‘First they came for the torrent websites…‘ in which is written:
The police claim in their statement that the operating of OiNK was “extremely lucrative” and “members paid donations via debit or credit cards, ensuring their continued access to the site”. The former is highly unlikely, while the latter is completely untrue. While I was not a member of OiNK, mainly because I already have more music than I can listen to, I have friends that were, and unlike some other private torrent trackers, where you can donate to bounce your download/upload ratio back up to 1.0, OiNK was well known as being one of the most vigorous pursuers of those who failed to keep their ratio at the required level. As one former user has wrote on a forum:
Donations were completely voluntary. At most you received advanced search features which allowed you to break down your searches by year/artist/album/genre etc. You also gained immunity from the inactivity ban sweeps. They put it this way: “No amount of money you donate will replace the bytes you’re not uploading.” All that donations did was give you two invites, give you a star, make your irc hostname end in .donor, give you advanced search abilities and access to statistics, no ratio changes, nothing.
Running a site with 180,000 users would incur significant server costs. OiNK, again like other sites do, never begged for donations towards those costs. For the police to claim that this was “extremely lucrative” smells like the proverbial, and for the Scum to suggest the man arrested was making hundreds of thousands of pounds a year, extrapolating from the statement that “this is big business, with hundreds of thousands of pounds being made” is outrageous.
Now I don’t know who the writer is, since his profile isn’t public, but what he has written matches what I was told, and what I’ve seen posted in other places on the net. And he/she makes a very important point – the first sentence of the IFPI press release says:
British and Dutch police today shut down the world’s biggest source of illegal pre-release chart albums and arrested a 24-year old man in an operation coordinated between Middlesbrough and Amsterdam.
The problem with this, is that the only logical source of pre-release albums, is the record industry. Think about it. Do you have access to the latest recording by ‘insert star artist name here’? I know I don’t. I don’t work in the industry. Oh, I have stuff that no one else has, but I have a recording studio in my basement, and I recorded it myself. So what we have here, is an industry claiming that outsiders are causing it’s problems, when the only logical source of the problems is internal! Does this make sense to you? Indeed, a 2003 study into pre-release issues in the movie industry pointed the finger at industry insiders (PDF Warning).
OK, so let’s look at the next thing that happens. On the same day as the arrest, somehow the IFPI and BPI (The British Recorded Music Industry) have somehow managed to take over the site. Think about this. Allan Ellis has been arrested, but hasn’t been charged yet. So how could the ownership of the domain have been legally transferred? Especially since the registered owner spent most of the day in p0lice custody. It’s pretty hard to sign over a domain registration document from inside a police station, where you are ‘helping police with their inquiries’ as the quaint British term goes. One would not expect a private organization to have been allowed access to someone in that sort of situation, and if they weren’t allowed access, how could he sign? And of course Allan Ellis had at this point not even been charged with anything, never mind being found guilty of anything illegal in a court of law!
And then to confuse things even further, somehow on October 27th, The Pirate Bay managed to gain control of the domain.
***** End Part One *****
I had the impression when I started that I’d be able to cover this fairly quickly, however the amount of information I’m finding is phenomenal, so I’m cutting this off at about 1500 words, and will be back tomorrow with another segment. Based on what I’ve got so far, I am expecting the total when completed to be 10,000 words or more.
Sookman Deflates Pending Lists Claim to Vilify Artists
Posted on January 18, 2010 by Wayne Borean
Oh dear. I hadn’t seen this post of Barry’s before he retweeted it. Um, how do I put this politely? Barry, you messed up.
Prof. Geist tries to taint the recording industry as blatant copyright infringers, without ever delving into the industry wide accepted custom for clearing mechanical rights. The pending list system, which has been around for decades, represents an agreed upon industry wide consensus that songwriters, music publishers (who represent songwriters) and the recording industry use and rely on to ensure that music gets released and to the market efficiently and the proper copyright owners get compensated.
But Barry, the recording industry are blatant copyright infringers. Or at least they sure give that impression. Let’s see:
Courtney Love Sues Record Label
Allman Brothers Band sues record company for $13M
Eminem Sues Record Label Over iTunes Royalties
Eurovision star sues record label over contract dispute
Smashing Pumpkins sue record label over use of songs in Pepsi promotional deals
Travis Tritt sues record label
I think that by this point you get the idea. Barry is trying to make his clients out as kindly, well meaning toffs (lords) – like Frodo in J.R.R.Tolkien’s Lord of the Rings, when instead they seem to be more like Anthony Soprano.
As to the ‘Mechanical Licensing Agreement‘ that Barry likes so much – think about this. Your major source of money says to you, hey, it would be real convenient to do things this way, using the compulsory licensing… Don’t you hear Tony’s voice? Are the artists really in a position to object?
Barry states that the amount is only $58 million. Think. Only $58 million. This of course assumes that his clients are telling him the truth, and that there aren’t any interest payments due, and that everything is accounted correctly. And it would never occur to Barry to question them, after all, to him, they are the good meaning toff’s illustrated so well by Tolkien. In a Fairy Tale. They’d never do anything like slip four extra words into the The Satellite Home Viewer Improvement Act of 1999 would they? After all, they keep telling us that they have the best interests of the artists in mind. So they wouldn’t have done anything like that, would they? So what if the artists assert their copyright termination rights. The companies support the artists – they should be happy! Not. An article on Law.com covered this very nicely, one of the lawyers interviewed represents the Eagles, Journey, and John Dozier Jr.’s favourite artist, Barbara Streisand.
But they did. They did just that. From Wired:
The record labels tried to defuse this bomb in 1999 by sneaking an amendment to the Copyright Act through the House of Representatives that would add sound recordings to the Act’s list of copyrights that were considered “works for hire,” which would make them exceptions to the grant termination clause. According to one source close to the situation, the labels told Congress that the Copyright Act already covered sound recordings as exceptions because albums of music are “compilations” — but that “just to be absolutely clear, [the labels] wanted to put it in so nobody can debate it.”
After musicians, including Carly Simon, reacted negatively, the amendment was withdrawn amid public outcry leaving record labels with precisely two options for fending off notices of termination, neither of which looks promising. The first is to continue to claim that albums are compilations, which doesn’t pass the common-sense test (compilations include songs from different artists), and probably won’t pass legal muster either.
So the friendly, kindly toff’s did try to slip something in, and got caught with their hands in the till. Figuratively. But it was a close run thing.
If you can only read one of the articles, the Wired one has a really good explanation of how the Recording Industry tried to pull a Tony Soprano on the artists. It was a damned close thing – if it wasn’t for someone catching it, it might have slipped through.
The labels wonder why the artists don’t trust them. You think they’d get the picture by now. No, wait, they do know how much the artists don’t trust them. They don’t care, as long as they get to keep raking in the shekels.
Disclosure – I spend a lot of time with musicians. If you are in a pub listening to musician shop talk, the shear cynicism that pervades the musician’s side of the argument will shock you. I’m not saying that musicians are saints. They aren’t. But the treatment they get from the labels is often little better than blacks got after the Civil War. Free often means free to starve. Me, I prefer musicians. They create something. The labels just package it, and try to take all the credit and money they can, leaving only enough for the artist to pay rent, if that.
Wayne Borean
Monday January 18, 2009
PS: Barry, why don’t you return my calls?
*****
Note: I have been trying to arrange an interview with Barry Sookman for a long time now. Barry is not willing to be interviewed. You’d think that he’s guilty of something.
Open Formats – I’m Moving all Mom’s Poetry to Open Document Format
Posted on January 19, 2010 by Wayne Borean
As I’ve mentioned, my wife’s mother is Poet Laureate of Temiskaming District. Mom is a truly prolific poet, with close to 6,000 poems to her name. Originally all of her poems were written with pen and paper, and Dad, my father-in-law collected them into a series of books. Later he transcribed them into a DOS computer, and then later a Windows computer. Over the years, he used Lotus Smart Suite, Word Perfect, Microsoft Works, Lotus Symphony, and probably other software packages that I don’t know about. Since Dad passed away three years ago, I’ve taken over part of his work, keeping Mom’s poetry backed up safely (and keeping her computer running).
Each of the software packages mentioned used different, incompatible, file formats. Tonight, looking over her collection, I realized that I have a problem, and that it has got to the point where I don’t have any choice. I have to transfer all 10,000 poems into Open Document Format, so they will be accessible forever. It’s going to be a lot of work, but in the long run it will pay off. Unfortunately that means that the poems won’t be accessible to anyone using Microsoft Office, since Microsoft’s implementation of ODF showed a level of incompetence that was beyond belief.
Of course if you do want access to Mom’s poetry, you can just go to OpenOffice.Org, and download Open Office at no cost. There’s no reason you can’t have both Microsoft Office and Open Office installed on the same computer.
If you would like to read some of Mom’s poems (in Open Document Format) from the last year of the 20th century, click here.
Wayne Borean
Tuesday January 19, 2010
Graduated Response and Copyright – a Practical Solution for Copyright Infringement
Posted on January 20, 2010 by Wayne Borean
Oh dear. I find that I’m agreeing with Barry Sookman. Graduated Response does have a place in the battle against copyright infringement.
Copyright Infringement is a problem. And it’s one that is getting worse. I’ve been tracking a series of infringement cases over the last year, and the more I look at the situation, the more I am convinced that something needs to be done, and it needs to be done soon.
However none of the ‘Graduated Response’ legislation that I’ve read to date, including the French Hadopi regulation, has the teeth needed to make it effective. Hadopi is useless against the hard core infringers. To be effective, it needs to be far more rigorous. I would like to propose following:
First Strike – Disqualification for all Tax Credits for the current year
Second Strike – In addition to the action taken in one, triple the tax payable.
Third Strike – Force the shutdown of the offending company’s operations. All copyrights to be returned to original owners, with the remaining copyrights, and all patents, trademarks, etc. to be placed in the public domain.
Only actions this stringent will force the worst of the serial offenders to act in an ethical manner. In this matter Barry and I are in 100% agreement. Something must be done.
Wayne Borean
Wednesday January 20, 2010
Corporate Copyright Scofflaws 0001 - ITunes
Posted on January 25, 2010 by Wayne Borean
The largest copyright pirates are the large corporations, particularly in the content distribution business. Yes, those companies who scream the loudest that their customers are ‘pirating’ movies, songs, books, etc. In this series, we are going to look at cases where these companies have engaged in large scare copyright infringement.
In all cases I will be working with published information. It is possible that this information may not be up to date, or may not accurately reflect the current status of the copyright infringement. If I am supplied documentary evidence which shows a different status, I will publish an update. In cases where a lawsuit ensued, and the settlement was sealed, I will not update the published information, unless I am provided with:
1) A copy of the settlement
2) Permission to publish the settlement
While I realize this may cause problems for one or more of the parties involved, I believe in only publishing things I can reference.
Note that the above text will appear in every article, if you’ve read it once, feel free to skip down to the divider.
*****
Benn Jordan, aka The Flashbulb had been told that people were downloading his music from ITunes. Unfortunately he had never signed an agreement with ITunes (a division of Apple Inc.) When he tried to find out what was going on, he got the brush off.
In the TorrentFreak article where I first head of this, Benn asks:
So, who’s the pirate I should go after? A kid who downloads my album because it isn’t available in non-DRM format and costs $30 on Amazon? Or a huge multi-billion dollar corporation that has been selling thousands of dollars worth of my music and not even acknowledging it?
I’m not disillusioned, I’m outraged, and anyone who ever spent a dime on buying music through these distribution methods should be outraged too. Here we are pleading with people to not steal music, and then we hand them dog shit when they go out of their way to buy it.
Of course the labels and ITunes would never do this, would they? Ask Benn. His label, Sublight Records was apparently no help, and may be the real problem, not ITunes, but we have no way of knowing.
Now I’d never heard of Benn Jordan before reading this article, but I can understand his frustration. The companies that claim to be protecting his interests, are the same companies that are ripping him off. My thanks to Torrent Freak for publishing the original article.
Wayne Borean
Monday January 25, 2010
Corporate Copyright Scofflaws 0002
Posted on January 27, 2010 by Wayne Borean
The largest copyright pirates are the large corporations, particularly in the content distribution business. Yes, those companies who scream the loudest that their customers are ‘pirating’ movies, songs, books, etc. In this series, we are going to look at cases where these companies have engaged in large scare copyright infringement.
In all cases I will be working with published information. It is possible that this information may not be up to date, or may not accurately reflect the current status of the copyright infringement. If I am supplied documentary evidence which shows a different status, I will publish an update. In cases where a lawsuit ensued, and the settlement was sealed, I will not update the published information, unless I am provided with:
1) A copy of the settlement
2) Permission to publish the settlement
While I realize this may cause problems for one or more of the parties involved, I believe in only publishing things I can reference.
Note that the above text will appear in every article, if you’ve read it once, feel free to skip down to the divider.
*****
Mike Jittlov is a film maker. His movie, The Wizard of Speed and Time is considered a cult classic. Unfortunately Mike doesn’t own his own movie. Somehow during the making of it, Mike lost control of his movie. I first heard about this nearly 25 years ago, and at the time didn’t believe what I was hearing, even though the person who told me about was someone I knew fairly well. It just sounded so bizarre. I’m a lot more cynical now.
Since I’d heard about this so long ago, and I didn’t remember all the details, I went online to look things up, and what I found matched my memories.It appears that Mike was totally ripped off. He invested a lot of his own money in the project, and according to various sources worked a wide variety of jobs on the project, including acting in the starring role.
What he got in return, was the theft of his intellectual property.
The movie was originally available on VHS (we have a copy) it has never been released on DVD. It appears that Mike was never paid any money for the VHS sales. He got legal advice at one point about trying to take back his creation, but the costs were more than he could afford – and he might not have won. Of course at this point an ethical person would wonder why Mike would have to fight to retain control of his own creation.
And the worst thing is that Mike hasn’t done anything major since. Just think, the talent who could produce one of the greatest live action stop motion animation movies ever, and he hasn’t produced another major work. Now I didn’t talk to Mike, and I don’t know for certain that his experiences in having his work ripped off are the reason why, but I have my suspicions.
Wayne Borean
Wednesday January 27, 2010
Corporate Copyright Scofflaws 0003
Posted on January 28, 2010 by Wayne Borean
The largest copyright pirates are the large corporations, particularly in the content distribution business. Yes, those companies who scream the loudest that their customers are ‘pirating’ movies, songs, books, etc. In this series, we are going to look at cases where these companies have engaged in large scare copyright infringement.
In all cases I will be working with published information. It is possible that this information may not be up to date, or may not accurately reflect the current status of the copyright infringement. If I am supplied documentary evidence which shows a different status, I will publish an update. In cases where a lawsuit ensued, and the settlement was sealed, I will not update the published information, unless I am provided with:
1) A copy of the settlement
2) Permission to publish the settlement
While I realize this may cause problems for one or more of the parties involved, I believe in only publishing things I can reference.
Note that the above text will appear in every article, if you’ve read it once, feel free to skip down to the divider.
*****
This one is a beauty, because I’m not sure who the scofflaw is. Sound Exchange is ‘THE” royalty collection society in the United States. There is a decent article on Wikipedia about them, the most important part of which is this:
SoundExchange is designated by the Librarian of Congress as the sole organization authorized to collect royalties paid by services making ephemeral phonorecords or digital audio transmissions of sound recordings, or both, under the statutory licenses set forth in 17 U.S.C. § 112and 17 U.S.C. § 114.[6] As of January 1, 2003, SoundExchange is designated by the United States Copyright Office to also distribute the collected royalties to copyright owners and performers entitled under and pursuant to 17 U.S.C. § 114(g)(2).[6]
OK, so Sound Exchange is supposed to collect the royalties, and remit them to the artists. This is where things get really murky. Since Sound Exchange is a non-profit organization, it legally cannot keep the royalties collected, though it can and does charge a fee. This is all reasonable enough. But Sound Exchange has been accused for years of deliberately not finding artists, and also has been accused of working too closely with the Recording Industry Association of America members, instead of the artists that they are supposed to represent.
A classic example is the Sound Exchange unpaid artist list from 2006. The list was supposedly put together for an attempt to find artists who were owed money, however it raises a lot of questions. First, how did Sound Exchange get so far behind in paying out royalties, and second, why didn’t they go looking for artists?
I was curious, so I grabbed a copy of the list, and did some looking myself, pulling names at random from the list.
Al Berard – found
Alan Di Cenzo – found
Alfonso Nigro – found
Andrea Stocchetti – found
Anne Karin Kaasa – found
OK, I found five out of five. Now I’ll admit that this isn’t 100% fair, the list was put together in 2006, and, well, a lot more people are using the internet in 2010. And Google has improved their search algorithms. Still if these people were that hard to locate in 2006, I wouldn’t have expected to find all five, in less than a couple of minutes.
Sound Exchange is supposed to be working for the artists. Supposed to be. At least that’s what they claim. This is a list of current Board members from their site:
Board
SoundExchange’s Board of Directors is a balanced representation of all parts of the music industry. Major and independent labels, recording artists, artist representatives, and interested coalitions all have a seat at the SoundExchange table.
Our current board members:
Mitch Bainwol – RIAA
Richard Bengloff – American Association of Independent Music
Jay L. Cooper, Esq. – Recording Artists’ Coalition (RAC)*
Andrea Finkelstein – Sony BMG Music Entertainment
Michael Hausman – Michael Hausman Artist Management, Inc.
Jeff Harleston – Universal Music Group
Kim Roberts Hedgpeth – AFTRA
Dick Huey – Toolshed
Steve Marks – RIAA
Walter F. McDonough, Esq. – Future of Music Coalition (FMC)*
Tucker McCrady – Warner Music Group
Alasdair McMullan – EMI Music North America
Kendall Minter – Rhythm & Blues Foundation
Patricia Polach – AFM
Patrick Rains – PRA Management
Martha Reeves – Artist
Perry Resnick – Music Manager’s Forum-U.S.*
Tom Silverman – Tommy Boy Entertainment LLC*
I’ve marked some names in blue, and the reason I’ve marked them in blue is that Sound Exchange is supposed to be responsible to musicians, and the names in blue are remoras. For those who don’t know what a remora is, it’s a fish which attaches itself to larger marine animals, like sharks or whales to get a free ride. It offers nothing back to the animal is rides, nothing at all, and it couldn’t exist without it’s ride.
All of the names in blue, are getting a ride off of musicians. If musicians didn’t exist, they’d have to get a real job. Unlike remoras they do offer some services, for example the RIAA member companies are good at pressing compact discs and delivering them to stores. However there is good reason to question why they would be on the board of Sound Exchange. Sound Exchange is supposed to collect royalties for artists. That the board is partially staffed with representatives from corporations, rather than the artists themselves is troubling to me – there is an apparent conflict of interests when a company that is being sued by artists for non-payment is on the board of Sound Exchange. At the very least, one would expect them to recuse themselves until after the lawsuit is settled.
Yes, I’m being rough on the RIAA members in particular. They do have a valid interest though. Fifty percent of the royalties collected go to the copyright owner for the recording. So if EMI records me, they get fifty percent of the royalties when the song is played. This may be why the RIAA member companies are so down on independent artists, especially independent artists who use an independent studio, and own the copyright on their own recordings… I have a suspicion that they’d try to make the sale of recording equipment illegal if they thought they could get away with it. But that’s just a suspicion.
And of course there is the question of who is the actual scofflaw? Did the RIAA members not supply Sound Exchange with contact information for their artists? Or did Sound Exchange just not put out the effort to find the artists? I’m not the only person who is asking this, here are some words from Fred Wilhelm, a lawyer who has clients in the music industry
SoundExchange’s informational tax return showed that the total amount of royalties retained exceeded $100 million at the end of 2007, and I am told was north of $180 million at the end of 2008. I’m sorry, Laura, but you can’t blame that number, and that increase, on artists who don’t answer their mail or webcasters who misspell an artist name.
Even if it IS their fault, you folks, as the self-proclaimed artist advocates you are, should be moving heaven and earth to get that money to the right people. And if you’re the effective artist advocates you say you are, that number should be dropping, right? Is it going to drop this year?
But beyond that, saying you are committed to do the job is not the same as doing the job. Telling me you are advocates doesn’t ring as true as seeing actual evidence of your advocacy.
As Marcellus said in Hamlet:
Something is rotten in the state of Denmark.
Quite possible we’ll never know exactly what. I doubt that Sound Exchange is going to tell us.
Wayne Borean
Thursday January 28, 2010
Oink.CD – Oink’s Pink Palace Part Two
Posted on February 8, 2010 by Wayne Borean
This is the second, of a long series of posts about OINK.CD, the music file sharing site run by Alan Ellis, and Alan’s acquittal on charges of Conspiracy to Defraud. My apologies for the delay – I have been trying to obtain information on the case, and while I have obtained some of what I need, I’m still working on getting more.
If you have any documentary information on this case, please contact me. I am especially interested in statements made by the BPI, Police, and other agencies that were involved. I also would like to get copies of the Court Transcripts, and of the Search Warrant that was used.
So, onto the Oink!
The Search Warrant that the police used in the raids is particularly of interest. No one seems willing to supply a copy to me. And you have to start wondering why? A copy had to have been present in court, why won’t anyone supply a hard copy?
Rumours that the Search Warrant mentioned CD Duplication equipment have surfaced, and in one of them a police officer that was at the scene was quoted as being surprised that they didn’t find the CD Duplication equipment that they expected would be the centrepiece of the criminal case. If the police expected to find CD Duplication equipment, and did not, this brings into question how thorough the police investigation was in the first place? Were the police only relying on what the BPI/IFPI told them? And would reliance on the testimony of a trade organization in making out a search warrant even be legal? That also brings into question how thorough the BPI/IFPI investigation was. Did the BPI/IFPI actually expect to find CD Duplication equipment at Alan Ellis’s house and place of business? Or did they know that there wasn’t any, but told the police that there was to obtain their cooperation?
We don’t know. The police are being exceptionally closed mouth about the entire case. When I called them, they tried to refer me to the IFPI. When I explained that I intended to call the IFPI after I had talked to them, and that the IFPI wouldn’t have the information I immediately needed, the person at the Cleveland police station that I talked to (and yes, I know who it was, though I am not publishing their name) got scared. Quite scared. They covered the mouthpiece and started talking to someone else (and yes, I have this name too) but they didn’t do a very good job, and I could hear most of the conversation. The other person was no better off. Neither of them was willing to discuss the case at all. Quite frankly you would have thought that I’d drawn a gun on them instead of a pen.
I’ve also sent emails to Alan Ellis. He hasn’t responded so far, however I suspect that his lawyers have told him to shut up, and keep shut up. Tomorrow I’m calling his lawyers, I am looking forward to their reaction.
Another thing that I want to get copies of are the hosting bills for OINK.CD. The IFPI and the Crown Attorney made a lot of fuss over the supposed 300,000 pounds that had been donated to Oink. But what were the costs of running Oink? The news reports filed by the reporters covering the case have Alan having anywhere between 20,000 pounds and 300,000 pounds in the bank at the time of the raid. If it was 20,000 pounds, and the other 280,000 pounds went to cover hosting costs out of 300,000 pounds collected, that is a good indication that the BPI and IFPI lied from the start when they claimed that Alan was running OINK as a for profit enterprise. Most people aren’t aware of how high hosting costs can be for a large site with lots of members. Oink supposedly had 200,000 members. That’s a lot of web traffic.
Another point – there has been a concerted effort to bury information, particularly press releases. The Cleveland Police have taken down the early press releases from their site, and claim not to be able to supply them. The BPI has also ‘lost’ press releases. The IFPI on the other hand still has them up, and also has up copies of speeches made by IFPI representatives at various functions. These speeches categorize Oink as illegal. Based on the acquittal of Alan Ellis, Oink was probably not illegal. Is the IFPI going to correct those speeches? Are they going to go back to the organizations where those speeches were given and apologize for giving a speech that was full of hyperbole, and incorrect information?
I suspect not.
Anyone who has copies of any of the press releases please email them to me. If you have the Search Warrant, well, that would cause me to start dancing If you have any information that has not been published, I would love to get my hands on it. If some of it has to be held back for privacy or other reasons, I will very happily do so. Also I store anything that could possibly be dangerous with my lawyer, who has instructions.
And now I’m finished this, I’m going to plug my Telecaster into the amp, and see if I can blow the window out.
Wayne Borean
Monday February 8, 2010
The Real Purpose of ACTA
Posted on February 19, 2010 by Wayne Borean
The Real Purpose of ACTA
There’s been a lot of coverage of the secretive ACTA negotiations. Or rather there’s been a lot of attempts at coverage. Since the negotiations are secret, the coverage to date has been limited to a very few interviews, where very little was said, and to several leaks of documents.
The problem is that all of the articles that have been published to date are totally wrong, due to a fundamental misunderstanding of what ACTA is really about, a misunderstanding that the countries involved have deliberately let stand. The only truthful statement made about the negotiations so far was by Ambassador Ron Kirk, the head of the United States delegation when he told James Love that people would ‘walk away from the table’ if the text of the treaty negotiations were made public.
So we have a treaty being negotiated under exceptionally secretive conditions. This sent alarm bells ringing in a lot of places. There have been a variety of attempts to get more information using Freedom of Information requests. There have also been questions asked in the European Parliament, Canadian Parliament, United States House of Representatives and United States Senate, none of which have been answered, which has added to the paranoia.
The secret to understanding ACTA (ACTA stands for ‘Anti-Counterfeiting Trade Agreement’) is in understanding the basics of how treaties are normally negotiated. The first point to consider is that trade treaties are usually negotiated in a relatively open manner. They have to be, to ensure that all of the stakeholders have a chance to heard. The ability of all stakeholders, including end users to be heard is what gives this sort of negotiation it’s legitimacy.
This hasn’t happened with ACTA. There has been some consultation with certain industry bodies, however all of the groups involved have had to sign Non-Disclosure Agreements. This was the first indication to me that ACTA isn’t really a trade agreement.
Some further though led to the conclusion that it had to be a cover for something else.
Consider. I’ve been doing research on ACTA for nearly six months. Every article I’ve seen calls it a trade agreement, but the backup information indicates that it can’t be. The public statements made by those supposedly involved in negotiating it have been contradictory in the extreme. One representative will claim that no changes need to be made to existing laws, another will claim that changes will be minimal, and another will imply that changes will be required, but that they are consistent with existing law, none of which makes any sense.
There have been a number of ‘leaks’ of documents supposedly pertaining to ACTA. These documents have also contradicted each other.
So it is obvious that whatever ACTA is, it isn’t a trade agreement. I came to this conclusion before Christmas 2009, but didn’t publish anything at the time, because I had no conclusive proof that it wasn’t a trade agreement. It’s obvious that something was being negotiated, but what?
The situation reminded me of the World War 2 Allied deception plans that were put in place to fool the Germans into thinking that the invasion of Europe would be anywhere other than Normandy.
So if ACTA is a deception plan, what is it hiding?
On February the Second, I dropped my wife off at the airport, for her trip to England. This would be her first trip back since her Mom and Dad moved their family here in 1973. She was really excited to be going back. On Wednesday she sent me an IM. Apparently she had gotten bumped to Business Class (she wasn’t complaining about that of course) and ended up sitting next to a 50ish guy in a suit, who was working away on his laptop. She noticed the word ‘copyright’ on the screen, and as a singer/songwriter copyright is very important to her. She also knows men. She made a quick trip to the loo, and came back with her top rearranged slightly to show her assets (a lot of our friends used to call her Heidi Hooters). She managed to engage the chap in conversation, and found out that he was returning to the UK from Mexico via a stop in Toronto to visit his brother.
This set off alarm bells. She was quite aware of my interest in ACTA (in fact she had been getting sick of hearing about it) and decided to play kitten. Several drinks later (for him, she doesn’t drink) he started to loosen up. Some of what he said she didn’t understand, but she did record it using the microphone and camera on her laptop. Some of what he said didn’t make a lot of sense, as he got drunker and drunker (she was buying, and he apparently appreciated this, and the chance to gaze down her top at her boobs).
The main points I got from her recording were:
ACTA would not require any changes to IP laws. Note that this is impossible if the Treaty actually had anything to do with IP, but he was adamant on this point.
He kept mentioning Prince William. He seemed to thing that Prince William would become King of the United States, as well as England, Canada, Australia, and Mexico.
He was under the impression that no one would accept Prince Charles as King, due to his marriage to a divorced woman, an exceptionally archaic viewpoint as far as I am concerned.
He then confirmed that ACTA would require changes to laws. When she questioned him on this, as he had said earlier that it wouldn’t require changes, he said ‘I said it wouldn’t require changes to IP laws, I didn’t say it wouldn’t require changes to other laws’.
He then proceeded to mumble about how paranoid the Americans were, and how wrong they were about the ‘New World Order.’
Under questioning while he was very drunk indeed he finally admitted the truth. ACTA is not a trade agreement. ACTA is an attempt to replace the United Nations with a new British Empire, based on the model that has worked so well in Canada.
My wife nearly fell over when she heard this. It sounded so incredibly insane. And of course the guy was pretty drunk.
When she got home I viewed the video. The webcam that is incorporated into a MacBook Pro is really pretty good, as is the microphone, and the words were fairly clear.
Charles Windsor would step aside so that his son, William Windsor could become King.
Queen Elizabeth plans to step down shortly from her role as Monarch in favor of her grandson.
The current system, where the King/Queen doesn’t introduce legislation would remain in effect.
The King/Queen would be expected to take a more activist role in rejecting legislation which is harmful to the state and it’s people.
The new ‘British Empire’ would take the place of the United Nations, which has in recent years become far less effective.
The United States and the European Union have already agreed to this. There are concerns by certain states (Belgium, Denmark, Luxembourg, The Netherlands, Norway, Spain and Sweden) which are monarchies, and which do not want their kings and/or queens to be reduced to a second class role. This would be handled by tying the blood lines together through marriage.
Andorra and the Vatican also have issues, due to the structures of their governments, however they would probably take the Swiss route, declaring neutrality, and therefore not joining the new British Empire, but having close relations to it.
Other countries would be invited to join, provided that they accept the basic laws of the Empire, which would include Free Speech rights, etc.
I was aghast at first when I viewed this. But after thinking about it for a while, I think it could work, and work well. And it would give all of the constituent nations (which would remain sovereign) a framework to work together.
I still don’t know what the letters ACTA stand for. Based on some of the mumbling near the end of the video, I think that the actual words are latin, but since my understanding of latin is minimal, I could be wrong.
Wayne Borean
Friday February 19, 2010
The Real Purpose of ACTA – Part Deux
Posted on February 23, 2010 by Wayne Borean
Download this book for your ebook reader.
(Pages 1-70 show above.)