ArtsWatch: Choking Off Rogue Sites' Ad Dollars

Advertising associations support voluntary best practices against rogue websites

GRAMMY.com
Philip Merrill

In recent news ...

The American Association of Advertising Agencies and the Association of National Advertisers issued a joint statement of best practices to address online piracy and counterfeiting on May 3, with additional support from the Interactive Advertising Bureau. ANA President and CEO Bob Liodice said, "We strongly urge all marketers to discuss this matter with their ad agencies and media buyers to stress your company's commitment to combating online piracy and counterfeiting. The entire Internet ecosystem must come together to address this problem." The recommendations suggest contractual terms to define ad placements on rogue sites as non-compliant, entitling clients to refunds or credits for misplaced ads. GroupM, the parent company of a number of ad agencies, deserves special mention for having initiated unilateral action along these lines almost a year ago. At her May 9 Senate Judiciary Committee oversight hearing, U.S. Intellectual Property Enforcement Coordinator Victoria Espinel hailed the associations' "leadership pledge" along with other voluntary agreements as noteworthy progress. After the hearing, Sen. Patrick Leahy (D-Vt.) said, "Voluntary efforts are wonderful and I am hoping the voluntary efforts will give us some confidence for the legislation we need, because ultimately we still need legislation."

On May 9 PaidContent published a redacted version of a legal opinion prepared for Google last month by UCLA School of Law professor Eugene Volokh, arguing search engine results are editorial opinion entitled to the same First Amendment protection enjoyed by newspapers. Although likely prepared with an eye to antitrust regulation, this constitutional argument could also complicate efforts to control a search engine's treatment of results that infringe copyright. Volokh said, "The First Amendment denies government the power to police the 'fairness' of search engine speech, just like the First Amendment denies government the power to police the fairness of newspaper speech." Google has policies in place to protect copyright, but in January the RIAA graded its efforts as "incomplete" and said, "Google raises alarmist, self-serving criticism to any legislative proposal to deter or thwart rampant copyright infringement."

Internet security firm Trend Micro on May 9 reported a new malware attack in the United States that freezes users' computers in the name of the Department of Justice and demands payment of a supposedly official fine for copyright infringement in order to resume normal use. This attack follows a "ransomware" strategy that has become widespread in Europe. Suggesting that this scam is catching on as a successor to the popular antivirus software scam, Trend Micro said, "We also found ... consoles that suggest a high level of development and possible reselling of the server back-end software used to manage these attacks."

On May 8 the Songwriters Guild of America announced a ruling in Southern California's U.S. District Court that allowed one of a song's co-writers — in this case one of the Village People, Victor Willis — to elect to have their publishing rights revert back to them after 35 years even though their co-writers did not concur. SGA President Rick Carnes said, "It will benefit all songwriters seeking to regain their copyrights in the coming years." Listing several other artists also seeking to regain publishing rights, Digital Music News said, "This is the case that everyone was watching — and exactly the result [t]hat publishers wanted to avoid."

Ready for an oversimplified version of how complicated copyright infringement can get when software companies sue software companies? A possibly precedent-setting copyright battle between high-tech titans Google and Oracle in Northern California's U.S. District Court poses two questions. The first is whether application programming interfaces are copyright-protected expression. Oracle's attorneys maintain that when their acquired company Sun invented APIs for Java, this was comparable to writing a song if one takes into account all the creativity that went into the process. The judge has not yet ruled on this argument. The second question is if one assumes that APIs are copyrightable, then does fair use protect Google when using Java APIs in its Android products. On May 7 the jury found that if APIs are copyrightable then Google did commit copyright infringement, but the jury could not reach a verdict on fair use. Google wants a new trial because the jury did not answer that question. Fair use is already a complicated concept when entertainment companies sue for infringement, but this ongoing legal battle is a lot more complex. Consumer advocates Electronic Frontier Foundation oppose copyright protection for APIs because this would restrict software interoperability.

On May 3 the National Association of Broadcasters filed to dismiss their petition for review of the Federal Communications Commission white spaces regulations with the U.S. Court of Appeals for the D.C. Circuit. NAB Executive Vice President of Communications Dennis Wharton said, "NAB still has concerns related to possible interference to broadcasting from unlicensed devices, but we felt this petition was no longer necessary." Many members of the music community including The Recording Academy, had joined with broadcasters to protect wireless microphone frequencies that could have been inadvertently used by next-generation white spaces devices, but the FCC's regulations eventually put in place a system to protect incumbent frequencies.

Net neutrality regulations became law in the Netherlands on May 8, included within new telecommunications statutes passed by the Dutch Senate. Chile and the Netherlands are now the only two nations to have adopted Net neutrality laws.

On May 6 Germany's Pirate Party won more than 8 percent of the vote in elections in the Schleswig-Holstein state. This adds six seats to the party's growing tally of four seats in Saarland and 15 in Berlin. Additional results should just be coming in from yesterday's vote in Germany's most populous state, North Rhine-Westphalia, as the Pirate Party hopes to build its popularity leading up to next year's election for Germany's national parliament, the Bundestag. (May 13 update:) Winning a little less than eight percent of the vote in North Rhine-Westphalia on May 12, the Pirate Party scored what The New York Times described as "a major victory in what is considered a bellwether state."

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ GRAMMY.com and sign up for Advocacy Action E-lerts.

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