The leaks suggest that countries who sign up to the U.S promoted plan would have to force ISPs to proactively police copyright on user-generated content, cut off those accused (or face liability), and put "graduated response" clauses in customer contracts. An example of a graduated response is France's "three strikes and you're out" law. There, you get two warnings if caught sharing music or movies, then you're banned for up to two years.

This provision would mean that every country that signs up to ACTA must allow content owners such as record companies and Hollywood studios to sue ISPs for failing to stop their subscribers from illegally sharing copyright-protected material such as music and movies.

By the way, two major sources of counterfeiting—Russia and China—aren't in the talks. If you want to get your head further around the issue, these sites do a great job of breaking it all down: [Electronic Frontier Foundation and PC World via BoingBoing]

As a result of the individual motions by both companies, two hearings have been set for November 12 to determine whether there'll be a January trial. I'm not-so-secretly hoping that Judge William Alsup will look at the "user license agreements for both Mac OS X 10.5 and Mac OS X 10.6," arguments about Digital Millennium Copyright Act, and the whole disc protection circumvention mess and make Apple and Psystar duke it out in court. Hell, I'll volunteer to transcribe the case for everyone's entertainment, stupid argument by stupid argument. Just make it happen. [AppleInsider via Crunch Gear]

When it comes to making personal copies, U.S. District Court Judge Marilyn Hall Patel left that totally gray—that is, she chose not to rock the boat on whether or not making personal copies actually falls under the "fair use" doctrine of the DMCA. Lots of "mays" and "whiles" in there:

"So while it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies."

So DVD ripping is kind of like laws about pot in some places: It's sorta legal to possess in certain circumstances, but not kosher to sell it. Thanks for clearing that up, judge.

What that means for Real, and their long-term plans—a box that archives DVDs—is even murkier. [Wired, NYT]

Courtesy of MAKE, we have this interesting "hack" that provides step-by-step instructions for getting 1984 back on your Kindle—timid publishers frightened of New Media be damned.

It's not too complicated a process, other than that expensive plane ticket of course, but there are a few instructions and tools you'll need, so head over to MAKE when you're ready.

If you're already in Australia and care to embark on this completely free-of-charge literary journey, send us some interesting shots of you giving Big Brother the picture while reading 1984, won't you? [MAKE]

Psion PLC announces that Psion and Intel Corporation have settled the trade mark cancellation and infringement litigation brought in the Northern District of California relating to the ‘Netbook' trademark registration.

The litigation has been settled through an amicable agreement under which Psion will voluntarily withdraw all of its trademark registrations for ‘Netbook'. Neither party accepted any liability. In light of this amicable agreement, Psion has agreed to waive all its rights against third parties in respect of past, current or future use of the ‘Netbook' term.

They don't say exactly what caused this change of heart, probably because saying "Intel gave us a stack of cash and told us to piss off" doesn't sound very professional. [SlashGear via CrunchGear]

After getting cornered with a few leading questions about whether or not RealDVD software is capable of copying rented DVDs (err, yes?), RealNetworks and the MPAA directed the discussion towards the company's plans for Facet, a $300 DVD-ripping player inspired by the massively expensive Kaleidoscape boxes of yore. Real CEO Rob Glaser even went so far as to lay out what's really at stake in this case:

If we're enjoined (from selling RealDVD), it would have very dire consequences frankly for us to ever be in this business.

And this is just a preliminary hearing. Essentially, if the court rules against RealDVD, then Facet—and its software, which would presumably be licensed to other DVD player manufacturers—would be dead in the water. Moreover, the precedent could make any DVD backup solution much more difficult to bring to market. Shitty, all around.

But the more I think about it, the less this strategy makes sense. Testing the waters with a low-stakes product isn't a bad idea in itself, but RealDVD is the wrong low-stakes product for the job. Real claims that Facet copies DVDs to an internal HDD, but offers absolutely no means by which these files could be shared—they're DRMed, disconnected from the outside world a locked in an actual box. RealDVD, on the other hand, copies films to your PC's drive and wraps them in iTunes-style DRM, which allows playback on up to five machines. That opens opens a piracy angle for the MPAA—one that could conceivably swing the case in their favor, killing RealDVD and precluding production of Facet for reasons that don't even apply to it. [CNET—Photo courtesy of Greg Sandoval/CNET]

If you don't recall, RealDVD was a late, unusual addition to the DVD copying field. By late, I mean the latter half of 2008, and by strange, I mean not free. Surprise! The MPAA is outraged, and the product is pulled from shelves literally days after launch. Now the controversy is making its way to a federal court, where Real attorneys will square off against whatever reptilian law-creatures the movie industry is employing these days, and the fate of RealDVD will be decided.

But the NYT thinks they've uncovered RealNetworks', ehh, Real™ intentions: to build ripping capabilities into mainstream DVD players. It's all part of a project called Facet that actually predate RealDVD, at least internally, by some time. Real wants to license this software on the cheap to major DVD player manufacturers, who could then produce reasonably priced (sub-$300) DVD-saving players.

Fun, right? Well, the underlying technology is pretty much RealDVD on Linux, so it—and pretty much any other integrated DVD player backup solutions—is depending on courtroom victory this week. If this is really their strategy, then RealDVD was might have never even a serious product—just a sad, legal, sacrificial lamb. [NYT]

First, the AP decided that fair use wasn't real and said it would start going after people for even using their headlines with links to their content. Now? The Associated Press has gone after one of its own affiliates for posting an AP video. An AP video embedded from the official AP YouTube page. Are you fucking serious, AP?

The executive who called the station accused them of "stealing our licensed content." Here's a quote from an interview from the obviously frustrated station manager:

And we're an A.P. affiliate for crying out loud! I stumped him on that one... What is really shocking is that they were shocked that they've got a YouTube channel that people are embedding on their Websites. He seemed shocked by that. "Oh, I am going to have to look into that" is what he told me.

Wow. Just, wow. [TechCrunch]

It's a sloppy gray area we've looked at before: When you buy digital content, do you really own it? With actual CDs or books, the first sale doctrine lets you hawk it later on eBay or gave it away if you want.

But was Obama in the clear to give away those showtunes, even if he bought them legally on iTunes? The EFF notes that in iTunes' 9,000-word terms of use, they coincidentally happen to sidestep the question. And if first sale applies, what about...? Oh forget it. The EFF ponders all the possibilities much better than I do. The point is simply that ownership, which used to be simple question, is now much more complicated than it needs to be, and ultimately, it sucks for regular people. [EFF via BoingBoing]

The drop was measured by Netnod, a Swedish web tracking firm, who found that traffic fell from 120GB/s to 80GB/s on the day the law went into effect.

Christian Engstrom, VP of Sweden's Pirate Party (love it) is not concerned, however. He told the BBC:

"Today, there is a very drastic reduction in internet traffic. But experience from other countries suggests that while file-sharing drops on the day a law is passed, it starts climbing again. . .One of the reasons is that it takes people a few weeks to figure out how to change their security settings so that can share files anonymously," he added.

The law is catching a lot of flak for effectively letting corporations enforce anti-piracy code with lawsuits, rather than leaving them to the police to deal with offenders on a criminal basis. Copyright holders can no go straight to the uploader's ISP, get his IP address and identity, and sue him up good.

From the country that gave us the Pirate Bay, though, I'm sure someone will figure out a way to subvert this. [BBC]

• The court heard from Magnus Mårtensson, a lawyer for the IFPI, and policeman Magnus Nilsson of the Swedish Anti-Piracy Office, who both described how they gathered evidence against the Pirate Bay by downloading torrents.

• In a continuing theme, neither of them seemed to grasp at all how BitTorrent works: all they could produce as evidence were screenshots of their torrents downloading, which the defense has already proven to be shaky if not entirely useless as evidence in court, as they don't provide any actual information as to where the data is coming from on the network, and if the Pirate Bay's trackers were being used.

• Whoopsies!

Gottfrid (defense): Before taking the screenshot, did you turn off DHT and Peer Exchange?

Mårtensson: DHT was obviously on. I wanted to be like an average user.

Gottfrid: So in other words, you can't check if the tracker was used?

Mårtensson: The tracker address was visible on the screen. From that I assumed it was used in some way.

Gottfrid: But since you had DHT on, you have no possibility to state to the court as to whether The Pirate Bay's tracker was actually used or not?

Mårtensson: No

.

• After these two witnesses, the court decided to adjourn for the day after only two hours of work. Gotta love those Swedes.

I like the precedent this is setting: If you're going to take on the Torrent sites, you better have the tech skillz to fight the geeks. [TorrentFreak]

The Guild claim, as printed in the WSJ:

They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law."

As Rob at BBG points out, the idea that a robotic reading of text is materially equivalent to a proper, recorded audio version of a book—read by the author in many cases—is ridiculous. It's possible that the Writers Guild folks are so whimsical as to think that every Kindle 2 download contains a tiny, kidnapped authorial homunculus that needs to be saved, but I think their perception of the device is what sparked this whole thing.

Still, the issue is more clear now than it will be in a few years. If text-to-speech synthesis improves much more, it could be mostly indistinguishable from a human reading, the widespread use such technology could render audiobooks all but pointless. Looking ahead to this time, we have two different perpectives: that dedicated audiobooks should gracefully pass into obsolescence, or that audiobooks deserve to exist, and that anything threatening their sales must be illegal.

Ultimately, the scenario in first perspective will probably come to pass, with or without the "graceful" part. [WSJ via BBG]

According to court papers filed on Psystar's behalf:

Apple is prohibited from bringing action against Psystar for the alleged infringement of one or more of the plaintiff's copyrights for failure to register said copyrights with the copyright office as required.

Not possessing having registered a copyright for the OS would make it kind of hard to enforce one, and would undermine Apple's entire suit suit.

I'm no lawyer, so I'll leave the copyright discussion to someone who knows better. But you really can't ignore the timing and circumstances of this development. Following a few notable failures in court, Psystar appears to be losing their fight against Apple, at least as long as it's framed as a copyright issue. Changing the terms, it seems, is their only option, and reeks of desperation. Not to mention the fact that it was utterly predictable. In our last Psystar update, posted before any of this happened, commenter Tim Faulkner said:

What people are ignoring is that Apple's already won. Even if Psystar can argue they have a legal right to hack Mac OS, they can't demonstrate that they have any right to distribute Apple's copyright without Apple's consent unless the antitrust claims (which they've abandoned) had merit. Even if Psystar has a right to circumvent Apple's weak protection (highly questionable), how are they going to prove they have a right to distribute Mac OS? They can't, that's impossible.

To which redwingsmonk added:

I think the only way psystar could win this if they claim OSX was open source and they have free reign to modify the code and resell it.

And here we are. It looks like Psystar—who is now apparently taking legal advice from anonymous Gizmodo commenters—knew that challenging Apple's copyright was pretty much their only hope. A faint hope, it's safe to say. [InformationWeek via AppleInsider]

Psystar has agreed to drop their antitrust claim against Apple, but they still have no intention of surrendering. Instead, they have shifted their focus on to copyright issues. From the filing:

Psystar alleges that by virtue of Apple's leveraging of copyrights in the context of Apple's EULA, spurious litigation via the DMCA, and various other anti- and unfair competitive conduct, there is no viable alternative to the purchase and use of Apple-Labeled Computer Hardware Systems for users who wish to use the Mac OS, for a prospective buyer of the Mac OS, or for a user of an older version of the Mac OS.

They are also arguing that Apple's inclusion of code in OSX that results in "kernel panic" does not constitute a legitimate copy protection system.

In Psystar's view, Apple's abuse of their copyright is monopolistic and is in direct violation of the "misuse doctrine," which prevents copyright from being used to block competition. Naturally, this is a major longshot and only prolonging the inevitable at a considerable and unnecessary expense. [Appleinsider and CNET]

Another man, who said he wasn't seeking damages, sued Microsoft in a Beijing district court for “violating the integrity of his computer.” He argued that “Microsoft has no right to judge whether the installed software is pirated or not” and demanded that the company remove the notice that he was software piracy victim from his software.

Just to refresh, the "illegal measure in question" is a nagware that turns the screen black on allegedly pirated copies of windows every hour. No data is lost, you're given a countdown for when your screen will return to normal... it's basically just a major annoyance (assuming that it is only pirated copies getting nagged). Is it just me, or does this seem a little brazen of people to sue for what's basically stealing? I think I'm actually starting to feel sorry for the big guy. [Shanghai Daily]

The arguments centered around fair use: Real claimed that making a bit-for-bit copy of the film, which is what their software did, falls under that umbrella. The studios claim that fair use does not include decoding a movie from any media besides the original DVD — something what RealDVD enables. Far from the legal victory or even protracted, public battle that Real was hoping for, the decision will likely hold into the foreseeable future. [Wired Threat Level]

In a small victory for Real, they got the case moved out of the studio-infested Central District to California's Northern District court. Now they just have to convince the studios and the judge that the extra DRM sprinkles it piles on top of the rips make RealDVD totally kosher. [Electronista]

The stakes for RealNetworks aren't terribly high either, as sales of RealDVD might have been slow because of, oh, I don't know, the mountains of free software that does a better and more complete job. Within the day, Real filed a countersuit which could possibly set a new precedent for the interpretation of the Hollywood's DVD license. Even in a best-case scenario, the most legal headway that could probably be made would be to permit neutered software like RealDVD, which would still leave any useful method of DVD backup well outside of the law. [NYT]

Although the intentions aren't yet explicit, most of the coalition members have openly opposed net neutrality legislation and are in favor of allowing ISPs to have the "freedom" to monitor their customers. But Microsoft is a little bit more squirmy on the subject. Thomas C. Rubin, Microsoft’s chief counsel for intellectual property strategy, told Hansell:

We think that this is an opportunity to work with leaders across industries to put our heads together to discuss the opportunities that exist to facilitate the promotion of the availability of legitimate content on the Internet. We are not in favor of filtering at the network level.

Hopefully that is enough of a bulwark against rampant abuse of power. As the forces align, it's important for pirates and non-pirates alike to keep watch. Meantime, check out the full article. [NYT]