Fox News Censors Political Expression

In a scenario that has become depressingly familiar, a news organization has again used the Digital Millennium Copyright Act ("DMCA") to censor legitimate political speech. Citizen Media Law Project reports that YouTube cancelled Progress Illinois' YouTube channel after Fox News had sent three notices of copyright infringement demanding the takedown of Progress Illinois' videos. In the videos, Progress Illinois, a union-sponsored blog, apparently used short clips of Fox News coverage of local and national political events to set up political commentary about those events. Progress Illinois sent a counternotice asking YouTube to restore the video, but that won't happen for several days, i.e. long after public interest in the event Progress Illinois is talking about has waned.

We haven't been able to view the videos, but from what we've heard it seems likely that the uses in question were fair, and therefore noninfringing. If so, it is especially shameful that a news organization, which itself depends heavily on fair use to do its own reporting and commentary, should ignore fair use and thereby chill the free speech of others. Moreover, Fox News may have lost sight of its own best interest in another way. As CMLP put it:

Fox's heavy-handed response to Progress Illinois' use of its clips highlights the network's myopic view of the media ecosystem in which it operates. Rather than seeing Progress Illinois as a competitor attempting to steal website traffic from WFLD-TV, the network should be grateful that its political coverage is generating buzz in the blogosphere.

It's also disappointing that YouTube hasn't already restored the videos. When similar shenanigans took down campaign videos by Senators McCain and Obama during the presidential election season, we called on YouTube to take steps to protect online speech, among them human review of videos that have been subject to a counternotice, and immediate restoration of videos that are clearly noninfringing fair uses.

Fox News bears the primary blame here, but we've said it before and it bears repeating: the Internet can continue to revitalize our political lives in exciting and unforeseen ways—if, and only if, service providers, users and content owners all do their parts to protect free speech.

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Apple Shows Us DRM's True Colors

At this week's Macworld Expo, Apple announced that by April, music from the iTunes Store will no longer be shackled by digital rights management (DRM). Finally, DRM is good and fully dead for digital music -- gone from CDs, gone from downloads, and largely dead for streaming.

Apple's announcement comes nearly a year after Amazon.com's DRM-free MP3 deals went live, demonstrating that the record labels were holding the DRM card until they could wring business concessions from Apple (in the form of variable pricing). This just underscores that DRM is not really about stopping piracy, but rather about leverage over authorized distributors.

In fact, an inventory of Apple's remaining DRM armory makes it vividly clear that DRM (backed by the DMCA) is almost always about eliminating legitimate competition, hobbling interoperability, and creating de facto technology monopolies:

• Apple uses DRM to lock iPhones to AT&T and Apple's iTunes App Store;
• Apple uses DRM to prevent recent iPods from syncing with software other than iTunes (Apple claims it violates the DMCA to reverse engineer the hashing mechanism);
• Apple claims that it uses DRM to prevent OS X from loading on generic Intel machines;
• Apple's new Macbooks feature DRM-laden video ports that only output certain content to "approved" displays;.
• Apple requires iPod accessory vendors to use a licensed "authentication chip" in order to make accessories to access certain features on newer iPods and iPhones;
• The iTunes Store will still lock down movies and TV programs with FairPlay DRM;
• Audiobook files purchased through the iTunes Store will still be crippled by Audible's DRM restrictions.

The majority of these DRM efforts do not have even an arguable relation to "piracy." And even where things like movies and audiobooks are concerned, DRM is not only futile, but will likely be counter-productive, making the "legitimate" alternative less attractive than the Darknet options.

This week's announcement is another step in the meltdown of DRM for music. But it is also a stark reminder that Apple remains at the forefront of employing DRM to shove competitors to the fringes and wrest control out of the hands of users.

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Keith Henson Appeal: Time to Undo an Injustice

The well-known Scientology protester Keith Henson has filed an appeal to the Appellate Division of the Riverside County Superior Court of his criminal conviction in 2001 of misdemeanor "interfering with a religion" for picketing in front of a Scientology "base" in Hemet, CA. The ruling was roundly criticized as inconsistent with Henson's First Amendment rights to criticize Scientology: much of the evidence used against him consisted of general statements he made online that were very critical of Scientology but fell far short of the sort of "true threat" required to overcome his First Amendment rights. The trial court also limited his ability to explain his actions or present contrary evidence. The Court of Appeal should take a hard look at the case and reverse the conviction.

Scientology watchers will recall that Henson sought, and temporarily obtained, political asylum in Canada right after the verdict, then was arrested upon his return to the US in 2007.

The Church of Scientology has been one of the earliest, and most aggessive users of intellectual property and other claims to silence the speech of its online critics. This year Scientology supporters launched a raft of copyright complaints aimed at removing anti-Scientology videos on YouTube. In the Henson case there is a serious concern that the criminal law was misused in an effort not to respond to any real threats, but instead to silence one of the Church's loudest and most persistent online critics. It's time to undo that injustice.

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RIAA v. The People Turns from Lawsuits to 3 Strikes

The lawsuits are ending. It's about time.

According to the Wall Street Journal, the recording industry has halted its mass litigation campaign against music fans for Internet file-sharing, a campaign that has targeted more than 35,000 Americans over more than 5 years (for a complete history of the lawsuits, see our RIAA v. The People white paper).

Ending the lawsuit campaign is long overdue. The campaign has been, by any measure, a failure. The lawsuits have not reduced unauthorized file-sharing and have not gotten a single artist paid.

But the news today is not all good. First, the recording industry will continue to press the thousands of pending lawsuits, presumably pushing for the usual four figure settlements. How is it going to feel to be the last college student to settle in a fight that the recording industry has now admitted isn't worth the candle?

More troubling is the news that the RIAA is pressuring U.S. ISPs into adopting some sort of "3 strikes" approach, similar to those it's been seeking in Europe (see, e.g., the French "digital guillotine" proposal). According the the Wall Street Journal article:

[T]he Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take. Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

This means more music fans are going to be harassed by the music industry. As Wired's Elliot Van Buskirk points out:

Due process has been prohibitively expensive for the RIAA. The organization has long sought a more efficient way to exert pressure on suspected file sharers, and these new agreements will grant it that wish, saving it money and allowing it to pressure far more suspected file sharers, all without filing a single subpoena.

The recording industry's efforts to push "3 strikes" legislation in Europe have been definitively rejected by the European Parliament and by Sweden. While UK ISPs have agreed to send notices for rightsholders, they've stopped short of automatic Internet disconnection. This leaves France as the sole European aberration.

The problem is the lack of due process for those accused. In a world where hundreds of thousands (or millions) of copyright infringement allegations are automatically generated and delivered to ISPs, mistakes are going to be made (just look at the innocents, 1, 2, 3, 4, who were swept into the RIAA litigation machine). Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for.

And being added to a nation-wide "Internet blacklist"—like that in the pending French legislation—is a disproportionate punishment, even for those who are "caught" file sharing. By conservative estimates, 1 in 5 American Internet users is an active file-sharer. Does the recording industry really think that banning 20% of Americans from the Internet is the right answer? Do ISPs? Or will the millions of ISP "warnings" just give rise to more encrypted and anonymized file-sharing mechanisms, all the while getting no artists paid?

We still need a better way forward, that legalizes file-sharing and gets artists paid. So, while today's news is long-overdue, the more interesting development is the recording industry's recent willingness to discuss collective licensing with universities.

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Yahoo To Anonymize Logs After 90 Days, Compared to Google's 9 Months

Today, Yahoo upped the ante when it comes to protecting search engine users' privacy, announcing a new data retention policy providing for anonymization of search queries — as well as page views, page clicks, ad views and ad clicks — after 90 days. This announcement comes on the heels of Google's announcement in September that it would be anonymizing its logs after 9 months.

It's always good to see search companies competing to provide more privacy to their users, and with this aggressive move, Yahoo has sent a serious shot across Google's bow. Yahoo has shown that a retention period shorter than Google's — much shorter than Google's — is an achievable goal for a major search engine. This announcement should be followed by another from Google, promising to match or beat Yahoo's retention period. If it isn't, though, legislators, regulators and privacy advocates should demand an answer from Google to the question: "If Yahoo can do it, why can't you?"

Unfortunately, it's hard to gauge the true privacy impact of this policy change until we know exactly what steps Yahoo will be taking to anonymize the data. The devil's in the details, and if Yahoo's anonymization process isn't robust enough, this new logging policy may end up being more privacy PR than privacy protection. Fully anonymizing IP addresses and cookie data can be tricky, and even if that data is thrown away completely, there's still the possibility of individuals being identified based on the content of their search queries, as AOL's search data spill demonstrated.

So, as Yahoo finalizes its policy plans, it should take a look at EFF's newly-revised Best Practices for Online Service Providers, which recommends a range of techniques to strongly anonymize online user data. Hopefully, we'll see the details of Yahoo's plan soon, as well as new announcements from other search engines trying to keep up in this accelerating privacy competition. Internet users have long trusted search engines and internet portals like Yahoo and Google with the privacy of their most intimate and sensitive data, and we're glad to see those companies finally vying to earn that trust.

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Labels Open to Collective Licensing on Campus

Finally. The major record labels are coming around to voluntary collective licensing, as we've been urging (and predicting) since 2003. Last week, TechDirt posted a set of leaked slides suggesting that Warner Music Group has opened a discussion with several major U.S. universities about creating a collective licensing solution for on-campus music file sharing. Wired got more details, TechDirt hates it, Ars Technica is cautiously optimistic, and Portfolio urges more transparency.

Here's what we know so far. Apparently Warner Music opened this discussion with universities some months ago. There is no concrete plan yet, but EMI and Sony-BMG are apparently open to the general idea (leaving Universal Music as the hold-out, which is no surprise, given their reputation as the most backward of the major labels). It's not clear whether or to what extent independent labels have been involved. And the project has a name—Choruss. The chief negotiator for Warner appears to be Jim Griffin, who is a long-time advocate of collective licensing (and member of EFF's advisory board).

Universities would pay Choruss, a new nonprofit collecting society, in exchange for an end to the "John Doe" subpoenas seeking student identities, DMCA notices, lawsuits against students, and legislation mandating copyright surveillance of campus networks. Students who pay will be free to download whatever they like, using whatever software they like, in whatever format they like (and presumably keep it all when they graduate, since there would be no way to claw back DRM-free MP3s). The monies collected would be divided up among artists and rightsholders, based on relative popularity. The rest of the details are still to be determined, including whether it would be a mandatory fee for all students, or an opt-in fee (complete with continued lawsuits for those who fail to pay?). It's also not clear what the fee would be, although those familiar with the talks suggest less than $5 per student per month.

EFF has been pushing for a voluntary collective licensing solution for P2P music file sharing for over five years. And we've noted as well that this approach makes much more sense for universities than the current "sue - surveil - expel" approach urged by the recording industry. So the news that Warner Music has begun discussing this approach is music to our ears.

We have written extensively (1, 2, 3, 4, 5) on why we think this kind of collective licensing approach makes sense. This could be the beginning of a big win for everyone. Fans come in from the copyright cold; artists and rightsholders get paid; the music industry stops the litigation war machine. And it will unleash a new tide of innovative start-ups (who no longer need licenses) to help us find, manage, and get the most from our unlimited libraries of music.

It's not just the music industry and music fans who will be better off. Everyone who cares about creativity and innovation should be eager for a truce between the RIAA and the Internet. The 10 year trench war between the the major record labels and digital technology continues to jeopardize the free and open Internet. In addition to suing more than 30,000 people (including innocents caught in the net) and distorting copyright law in their efforts to kill off P2P software makers, the industry continues to push for ubiquitous network-based copyright surveillance, an idea that already has traction with AT&T and policy-makers in several European countries. Across the world, the push is on now for "3 strikes" policies that will cut people off from the Internet on the basis of unproven infringement allegations. A collective licensing solution could seriously undercut the principal arguments for these policies.

So we are cautiously optimistic. There are lots of hard issues that will need to be addressed. How will a collective licensing approach protect user privacy? What will universities do to stop "leakage" to ISPs whose users have not opted in? Will independent artists get a fair shake from Choruss? But it sounds like the labels are, for the first time, interested in having the right discussion.

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Change.gov Content Now Under Creative Commons License

In the last few days, President-elect Obama's transition team took a significant stride towards a more open government by licensing the content of Change.gov under a Creative Commons Attribution license. Using that license essentially means that the transition team is allowing others to freely share and remix what's posted there, provided that reposts are attributed to Change.gov. The move is a victory for the public and the many advocates for a more wired, participatory democracy.

It's also another reminder of the importance of Creative Commons, which affords creators an opportunity to opt for something less than Disney-style copyright restrictions. By embracing a CC license, the Obama team sets a valuable example for others in government, many of whom may have defaulted to "all rights reserved" without considering other options.

While Change.gov has experienced some growing pains, the transition team appears to be making a real effort to use the website as a legitimate location for its conversation with the American public. The preview post of the President-elect's planned weekly address (posted on Thanksgiving Day) includes links to multiple sources — an embedded YouTube video, a link to the same video posted to Yahoo! Video, and a high-resolution .mov file — with the Creative Commons license guaranteeing that the public can freely share, remix, comment, and report on the President-elect's statement.

The switch to Creative Commons licensing is encouraging and we hope that it is a herald of more pro-open government changes to come.

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Apple Downgrades Macbook Video with DRM

Once again, thanks to DRM, a new product ends up less useful than the one it replaces. This time, it's the new family of Apple Macbook laptop computers that gets the downgrade.

When it launched the new Macbooks, Apple announced that they would sport a new digital video output connector, known as Mini DisplayPort. What Apple failed to mention, however, is that those connectors allow movies studios to force the computer to authenticate any external monitor before allowing playback of programs purchased or rented from the iTunes Store (Microsoft's Windows Vista does something similar). In other words, the HDTV monitor or projector that worked for you yesterday, won't work with your new computer tomorrow if Hollywood has embedded a flag in the iTunes content you paid for.

This is a remarkably short-sighted move for both Apple and Hollywood. This punishes existing iTunes customers: several have reported that iTunes purchases that played on external monitors on their old Macbooks no longer will play on their new Macbooks. In other words, thanks to the Macbook "upgrade," Apple just "downgraded" everyone's previous investment in iTunes content (if we've told you once, we've told you a dozen times -- when you buy DRMd content, the vendor can snatch your investment from you at any time).

And it's still not clear how bad this will be for purchasers of new Macbooks -- if Apple has deployed DPCP content protection on its DisplayPort implementation, there are virtually no display devices that support this new-fangled lockdown standard (it's not clear from news reports whether the Macbook DisplayPort will work with HDCP-compatible display devices over DVI or HDMI connectors).

As for the movie studios, this gives legitimate customers one more compelling reason to avoid "legit" sources of content in favor of downloading from The Pirate Bay or ripping DVDs using Handbrake. So this is just another example of the way in which the MPAA companies use DRM not to stop piracy (since this will, if anything, encourage people to opt for the Darknet), but rather to control those who make devices that play movies.

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Google is Done Paying Silicon Valley's Legal Bills

[I wrote the following op-ed, which appeared in the Nov. 14 issue of The Recorder. Because that publication's website is not publicly available, I'm posting a copy here, with their permission.]

For most of the decade, Silicon Valley technology startups have assumed that Google would pay their legal bills. Not literally, mind you, but rather by taking on the big, high-profile cases about fair use, interoperability, and other digital intellectual property issues that would set precedents that all disruptive innovators could rely on.

Well, Google just put the Valley on notice that the free ride is over, which means more legal burdens for smaller technology companies that previously depended on Google clearing a path for them.

Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. At the heart of the dispute is the question of whether scanning copyrighted books in order to index them violates copyright law, as the publishers argued, or is permissible as a fair use, as Google argued. If approved by the court, the $125 million settlement would buy Google — and only Google — permission not just to scan books for indexing purposes, but also to expand Book Search to provide more access to the scanned books.

The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. Others include the billion-dollar suit brought by Viacom over copyrighted video clips appearing on YouTube, as well as cases brought by trademark owners attacking Google's right to sell trademarks as keyword triggers for those "sponsored links" that appear when you use Google's search engine. Google has also fought copyright owners to defend its search engine, news aggregation, image search and Web caching activities.

Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google's legal investments have paid dividends for the entire Internet innovation economy.

Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem — but not anyone else's. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.

Google will doubtless be considering the same endgame for the Viacom lawsuit against YouTube. If Google can strike a settlement with a large slice of the aggrieved copyright owners, then it solves the copyright problem for itself, while leaving it as a barrier to entry for YouTube's competitors.

But when innovators like Google cut individual deals, it weakens the Silicon Valley innovation ecology for everyone, because it leaves the smaller companies to carry on the fight against well-endowed opponents. Those kinds of cases threaten to yield bad legal precedents that tilt the rules against disruptive innovation generally.

For better or worse, it looks like tomorrow's cutting-edge Internet law precedents are going to be left to smaller companies to set. That means smaller startups (and their venture capital backers) need to start planning strategically to pick up the slack left by Google's gradual retreat from the field of battle. To put it bluntly, they need to set aside real money for litigation and find ways to cooperatively invest in the legal precedents that all of them collectively need.

Reproduced with permission from the Nov. 14, 2008 edition of The Recorder, copyright 2008 ALM Properties. Further reproduction without permission prohibited without permission of ALM Properties.

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The WIPO Broadcasting Treaty: Back from the Dead?

Last year, we reported that WIPO Member States had decided to postpone holding an intergovernmental diplomatic conference to adopt the controversial Broadcasting Treaty. For us, and the many others who had expressed concern about the proposed treaty, this was welcome news. But it was short-lived. In 2008, the Broadcasting Treaty is being pushed by its supporters with a vengeance. Surprisingly, the US seems to have reversed its most recent position, and expressed support for continuing treaty negotiations so long as it includes webcasting.

Despite the fact that there has been no agreement on fundamental elements of the treaty after over 10 years of negotiations, in March there was a concerted move to resurrect negotiations, led by the European Community and Japan, with support from a set of other countries. At the September 2008 WIPO General Assembly meeting, a number of WIPO national delegates expressed support for finalizing treaty negotiations. Then in October, the long-standing WIPO Copyright Committee Chair, Mr. Jukka Liedes of Finland, produced an "informal paper" describing the process of negotiations so far, and proffered several options which would result in continuing discussions and finalization of the treaty.

Yesterday, the Broadcasting Treaty was the main topic of discussion at this week's meeting of the WIPO Standing Committee on Copyright in Geneva. In spite of the enthusiastic efforts of treaty supporters, consensus still seems quite a long way off. Several country delegations (France on behalf of the European Community, Japan, El Salvador and China) expressed support for concluding a treaty. Others repeated that the treaty must be limited to protection of signals and not grant exclusive rights, which the current draft does (Pakistan on behalf of the Asia Group, the Africa Group, South Africa, India. the US).

As in previous meetings, the most contentious issue was whether the treaty should give broadcasters and cablecasters exclusive rights over Internet retransmissions of broadcast and cablecast content. The Africa Group, China, Nigeria, India, South Africa and Egypt all opposed inclusion of webcasting or extension to Internet transmissions. Japan, the US, Australia and the Ukraine supported the extension of the treaty to the Internet.

The US delegation said that if discussions are to continue, the treaty should include webcasting. This is a reversal of the United States' most recent position, and harks back to a May 2006 meeting, where it was agreed to take out webcasting and divide the treaty into two tracks -- first, a treaty on broadcasting and cablecasting, and then second, an instrument dealing with broadcasting on the Internet -- webcasting or "netcasting", as the US had wanted, and "simulcasting", as supported by the EU.

Yesterday, the United States' delegation stated it had agreed only temporarily to limit the scope of the treaty to traditional broadcasting entities, provided that simulcasting was also excluded, and with the failure to move to a diplomatic conference in 2007, any agreement on the two-track approach had now expired. In other words, the US apparently wants to go back to 2006 and bring webcasting or "netcasting" back in to the treaty. Finally, in case there was any doubt, the North American Broadcasters' Association repeated that their strong preference is for a treaty with exclusive rights for broadcasters and extending to Internet retransmissions.

EFF and a diverse group of public interest NGOs, libraries and major U.S. tech industry players continue to oppose the current treaty draft because it's not limited to signal protection, but would instead create a new layer of exclusive intellectual property rights for broadcasters and cablecasters that would harm access to knowledge and consumers' existing rights under national copyright law, endanger citizen broadcasting on the Internet, raise competition policy concerns and stifle technological innovation. Here and here is the joint statement presented by that group to WIPO this week. And here's EFF's briefing paper on our concerns with the current treaty draft.

Discussions at WIPO wound up today, after heated discussions on the issue of copyright exceptions and limitations. Member states agreed to keep the Broadcasting Treaty on the Copyright Committee's agenda and asked WIPO to convene an information session at the next meeting in May to discuss outstanding issues. The Committee did not make a decision on the various options presented by the Chair in his informal paper. Perhaps most importantly, Member States affirmed the mandate previously provided by the WIPO General Assembly -- that the treaty must be framed on a signal-based approach, and that the convening of a diplomatic conference could be considered only after agreement has been achieved on the treaty's objectives, specific scope and objectives. We'll be back shortly with the full text of the final adopted conclusions of the meeting and our analysis of this week's key issue, copyright exceptions and limitations for the visually impaired, libraries and archives, education and innovative services.

(With many thanks to Sherwin Siy of Public Knowledge and Judit Rius Sanjuan of KEI for their notes of delegates' interventions.)

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