Copyright v. Indexing, Part 1: TorrentSpy

Deeplink by Fred von Lohmann

A prediction: the world of copyright law is about to collide with the world of digital indexing and search, and the collision will be among the most important digital copyright issues of the next several years.

A few weeks ago, the major movie studios filed a lawsuit against the operators of TorrentSpy. Although the TorrentSpy suit has been characterized as just the latest chapter in the MPAA's attack on Bit Torrent file sharing, on closer examination it looks more like a wholesale attack against Internet indexing generally.

In the complaint [PDF], the studios level claims of contributory infringement, inducement, and vicarious liability against TorrentSpy for maintaining an index of "dot torrents." These files are functionally similar to links, pointing to files hosted by others. Unlike some other sites, TorrentSpy neither maintains a "tracker" nor hosts any infringing files. (Wikipedia has a good entry about the bit torrent protocol, explaining the relationship between dot torrents, trackers, and files being shared.)

In its motion to dismiss the suit, TorrentSpy puts the question crisply: how is TorrentSpy different from Google? After all, Google indexes dot torrent files, too (just include "filetype:torrent" in your search string). For that matter, how is TorrentSpy different from the search index maintained by Bit Torrent? A search for "battlestar" there turns up Battlestar Galactica results that look a lot like those at TorrentSpy. Google, TorrentSpy and Bit Torrent all have DMCA "notice-and-takedown" procedures that allow copyright owners to demand the removal of links from the index, if those links lead to infringing content.

The complaint gives little guidance about what the studios think separates TorrentSpy from any other index. It alleges that "the predominant use" of the index is for infringement (shades of MGM v. Grokster!). It claims that "indexing files according to specific titles of copyrighted television programs" is evidence of inducement. It argues that TorrentSpy "favorably compare[s] its website to other peer-to-peer services widely used for infringing activities." I'm sure the plaintiffs will further develop their "TorrentSpy is different" themes as the case goes forward.

But that's the important question raised by the TorrentSpy lawsuit: what's the difference between a "good" index and a "bad" index, and is that a distinction that copyright law can effectively make? In 1998, when Congress passed the DMCA's "safe harbor" provisions, it seemed to be saying that indexes should be shielded from copyright claims, so long as they implemented a "notice-and-takedown" procedure. The TorrentSpy suit (as well as the MP3Board.com lawsuit) suggests that the entertainment industry wants to renegotiate that bargain in court. The result could have important implications not just for torrent indexes, but for all online index and search services.

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EFF Motion in AT&T Surveillance Case Draws Government's Eye

Deeplink by Derek Slater

EFF filed a motion for a preliminary injunction in its class-action lawsuit against AT&T today. However, much of the evidence that was to be included in the motion—as well as the legal arguments based on that evidence—was held back temporarily at the request of the Department of Justice (DOJ). While the government is not a party to the case, DOJ attorneys told EFF that even providing the evidence under seal to the court—a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence—might not be sufficient security.

EFF's motion seeks to stop AT&T from violating the law and the privacy of its customers by disclosing to the government the contents of its customers' communications, as part of the National Security Agency's (NSA's) massive and illegal program to wiretap and data-mine Americans' communications. The motion was supported by a number of internal AT&T documents that the government now claims might include classified information.

EFF will seek the Court's permission to publicly release the preliminary injunction motion and supporting documents, and hopes to have redacted versions available after further discussions with the government.

"Openness in court proceedings is fundamental to a free society," said EFF Staff Attorney Kurt Opsahl. "The facts supporting our motion are not classified and are important to the public debate over the propriety of the NSA domestic spying program. The public deserves to know the truth."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&T. This surveillance is ongoing, and today's injunction motion seeks to stop the spying while the case is pending.

"AT&T's wholesale diversion of communications into the hands of the NSA violates federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&T's shameful choice to allow the government to spy on millions of ordinary Americans' communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

In the lawsuit, EFF is representing the class of all AT&T residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber & Voorhees, Lerach Coughlin Stoia Geller Rudman & Robbins LLP and the Law Office of Richard R. Wiebe.

For the motion for preliminary injunction:
Brief and some evidence NOT AVAILABLE BY DOJ REQUEST

For more on EFF's suit:
http://www.eff.org/legal/cases/att/

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"Email -- Should the Sender Pay?": EFF Fundraiser, Debate Between Esther Dyson and Danny O'Brien

Deeplink by Derek Slater

In light of AOL's adopting a "certified" email system, EFF is hosting a debate on the future of email. With distinguished entrepreneur Mitch Kapor moderating, EFF Activist Coordinator Danny O'Brien and renowned tech expert Esther Dyson will discuss the potential consequences if people have to pay to send email. Would the Internet deteriorate as a platform for free speech? Would spam or phishing decline?

WHEN:
Thursday, April 20th, 2006
7:00 p.m. to 8:30 p.m.

WHAT:
"Email - Should the Sender Pay?"
A Debate Between Danny O'Brien and Esther Dyson, Moderated by Mitch Kapor
Sponsored by Adaptive Path

WHERE:
Roxie Film Center
3117 16th Street, San Francisco
(between Valencia and Guerrero)
Tel: (415) 863-1087

This fundraiser is open to the general public. The suggested
donation is $20.
No one will be turned away for lack of funds.

Please RSVP to events@eff.org

Speaker bios and directions after the jump.

[Read the entire post]

AV Enthusiasts Hit Hard By DRM, Tech Mandates

Deeplink by Derek Slater

In a terrific article at DesignTecnica, audio editor of Home Theater and the author of Practical Home Theater Mark Fleischmann has a stark warning for fellow "gadget lovers" looking forward to the newest crop of audio and video devices:

"What was once legal and "fair use" of existing gear is being redefined, criminalized, and copy-protected out of existence under new laws and regulations. Your existing gear, including your HDTV and your PC, is also being directly sabotaged by software. And gear you buy in the future may not have the functionality you've always taken for granted."

Fleischmann recounts many ways the entertainment industry is trying to take control of your digital devices that may be familiar to readers of this blog, including tech mandates like the digital radio flag and analog hole bills, the Sony rootkit scandal, and the AACS restrictions in HD-DVD and Blu-ray.

AV enthusiasts like Fleischmann are likely to be among the hardest hit by DRM. Wanting to make the most of their media, they have already invested hundreds if not thousands of dollars in new HD displays, home theater receivers, and other devices. But thanks to the alphabet soup of DRM coming our way (AACS, HDCP, DTCP, CableCard, Macrovision), these enthusiasts will increasingly face irrational restrictions and infuriating incompatibilities. Yet just as we know DRM will frustrate legitimate AV enthusiasts, we also know that it won't do a thing to slow digital copyright infringers.

We'll all soon come to feel the pinch as Hollywood insists on DRM that treats us all as though we are guilty until proven innocent, but it will be the "early-adopters" like Fleischmann who feel it first. So even if you're not about to spend $5000 on an HDTV, you should probably be paying attention to how DRM affects those who are. Visit EFF's Action Center to voice your concerns.

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Hearing Set for Appeal in Key Bloggers' Rights Case

Deeplink by Derek Slater

On April 20, a California Court of Appeal will hear arguments in Apple v. Does, a case with broad implications for all journalists. EFF is fighting to ensure that bloggers and other online writers get the same rights as offline journalists and can protect the confidentiality of their sources.

As you may recall, Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.

In a decision whose sweeping terms threaten every journalist, whether publishing in print, radio, television, or on the Internet, the trial court denied the protective order and held that a journalist's publication of information that a business deems a trade secret destroys the constitutional protections for the journalist's confidential sources and unpublished information. EFF petitioned to correct the trial court's manifest error and restore the previously well-settled constitutional protections for a journalist's confidential information, upon which the practice of journalism and the freedom of the press depend.

On June 2, 2005, the California Court of Appeal issued an Order to Show Cause, asking Apple to show the Court "why a peremptory writ should not issue as requested in the petition" that EFF filed on behalf of these online journalists. The Court has now set an April 20, 2006 hearing on this important issue.

Stay tuned for more information, and learn more about how EFF's fighting for bloggers' rights here.

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FEC Protects Bulk of Internet Speech From Campaign Finance Rules

Deeplink by Matt Zimmerman

On Monday, the Federal Election Commission voted unanimously to adopt new regulations [PDF] that would leave Internet-related activities largely untouched by campaign finance rules. Monday's vote marked the culmination of a series of events put into motion in September 2004 when a federal district court ruled that the FEC couldn't categorically exempt the Internet from federal campaign finance rules and forced the agency to draw up new rules accordingly.

The new rules are a big win for bloggers and other online speakers. When the proposed rules were first announced, bloggers across the spectrum raised concerns that the FEC might intrude too far, imposing burdensome recordkeeping regulations and potentially chilling online speakers who wanted to discuss political issues or coordinate volunteers to support various issues. Frequently forgotten, however, was the fact that the FEC had expressed little interest in adopting any kind of Internet regulations in the first place. Indeed, the 2004 court ruling chastised the agency for shielding the Internet more than federal law allowed.

The final rules should put most of the immediate free speech concerns of bloggers to rest. As the introduction to the final rules note, "These final rules therefore implement the regulatory requirements mandated by the Shays district decision by focusing exclusively on Internet advertising that is placed for a fee on another person's website." The FEC has interpreted campaign finance laws (and the admonition of the district court) extremely narrowly, limiting rules regarding spending limits and reporting requirements to instances where paid advertisements are placed on the Internet. Unless they take money in exchange for political advertisements, the bulk of online speakers will remain unaffected by the rule changes.

The new regulations will go into effect in a little over a month.

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DMCA Rulemaking Hearings Underway

Deeplink by aaron

On Thursday, the Copyright Office held the first in a series of hearings on its triennial DMCA Anti-Circumvention Rulemaking in Palo Alto, CA. Every three years, the Copyright Office solicits proposals to exempt specified classes of works from the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. Seventy-four such proposals were submitted in the current proceeding, two of which were discussed at yesterday's hearing.

Jennifer Granick of the Stanford Cyberlaw Clinic made the case for a proposed exemption that would permit circumvention of access control measures that prevent the unlocking of mobile phones. Many mobile phone carriers include protection measures on their handsets that prevent their customers from accessing firmware on their phones that would enable those customers to switch to another provider, essentially locking their phones to a single service provider. By circumventing these protection measures consumers and organizations like the Wireless Alliance, which offers refurbished mobile phones to developing nations, are able to instruct their phones to connect to rival networks. Granick argued that such use of the phones' firmware implicates none of the copyright holder's exclusive rights and is therefore non-infringing. She contended that the DMCA threatens this non-infringing use because those who unlock phones face potential liability under § 1201(a)(1). A recent lawsuit filed by mobile phone provider Tracfone against a competitor that unlocked its phone provides evidence of this threat.

Steven Metalitz, on behalf of the Joint Reply Commenters, a group of copyright trade organizations including the RIAA, MPAA, and BSA, expressed doubt that the Copyright Office was the appropriate venue for resolving Granick's concerns. Although they admitted the environmental and anti-competitive effects of mobile phone locking, the Joint Reply Commenters suggested that the FCC could more effectively regulate the practices of mobile service providers. They also questioned the substantiality of the threat the DMCA poses to mobile phone locking, contending that the DMCA was a "bit player" in the Tracfone litigation and that the injunction issued in the case did not rely explicitly on Tracfone's DMCA claim. Nonetheless, the Joint Reply Commetners conceded that DRM schemes for securing audio and video content on mobile phones can be and often are separated from the firmware protection measures that lock a phone to a particular network. Overall, the opposition to Granick's proposed exemption from the copyright trade associations represented by Mr. Metalitz was minimal.

The second proposal addressed at yesterday's hearing was filed by the Internet Archive and sought an exemption for computer software and video games distributed in obsolete formats or that require obsolete hardware or operating systems as a condition of access. In the 2003 rulemaking, the Internet Archive convinced the Copyright Office to exempt "computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access." Brewster Kahle explained why the existing exemption not only remains necessary but requires expansion. In its effort preserve previous generations of software and games, the Internet Archive faces the obsolescence of operating systems and hardware. As Amigas and Apple 68K machines become increasingly unavailable, for example, the preservation of the software that ran on those systems has become both more necessary and more difficult. In these instances, circumvention of protection measures is essential to the preservation of these works.

Steven Metalitz and the Joint Reply Commenters expressed concern over the potential impact of this exemption on the market for rereleased classic video games, pointing to Nintendo's plan to make its 8-bit catalog available on its upcoming Revolution system and Time Warner's licensing of numerous classic games for its Gamespot service. The Joint Reply Commenters suggested limiting the proposed exemption to games and software not available in a non-obsolete format and offered a definition of "obsolete" that is far more narrow than the term's current definition under § 108 of the Copyright Act. Section 108 classifies a format as obsolete if hardware necessary to access it is not reasonably available in the commercial market, but the Joint Reply Commenters argued that given the increased access to second-hand goods enabled by sites like eBay, this understanding of "obsolete" is too broad.

The rulemaking hearings will continue next week in Washington, D.C. with discussions of proposed exemptions for compilations of Internet locations blocked by filtering software, ebooks that prevent the use of read-aloud functions, CDs protected by technological measures that create root-kit-like security vulnerabilities, computer programs protected by obsolete dongles, audiovisual works protected by technological measures that prevent their educational use, and audiovisual works in the public domain.

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Last Chance to Sign Up for Free EFF Security Training, Next Week in Los Angeles

Deeplink by Derek Slater

Does your organization know its rights when it comes to government surveillance? Do you and your colleagues have the technical knowledge necessary to secure your organization's sensitive data and communications against government intrusion?

Many of the legal protections against government searches and surveillance have been removed since 9/11 and the USA PATRIOT Act, so EFF has developed STOP -- a free, five-hour security training for non-profits that will give you the legal and technical information that you need to protect the privacy of your organization and its clients.

The next STOP is in Los Angeles, and it's right around the corner. RSVP by March 27th to join in this important training on March 30th!

What: STOP in Los Angeles
When: March 30, 12pm-5pm
Where: SCOPE - La Cienega Office
3346 S. La Cienega Boulevard
Los Angeles, CA 90016
How: RSVP to Risa Brown at rbrown@scopela.org or 323/789-7920 x117 by March 27th

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Free Marketeers Rail Against DMCA

Deeplink by Derek Slater

The content industry likes to say that opposing the DMCA means opposing the free market. The libertarian Cato Institute, whose mission includes limiting government intrusion into the free market, released an excellent paper today taking aim at this faulty economic reasoning. In "Circumventing Competition: The Perverse Consequences of the DMCA," policy analyst and blogger Tim Lee writes:

"The DMCA is anti-competitive. It gives copyright holders—and the technology companies that distribute their content—the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates."

EFF has long been beating this drum, and we're always glad to see more people from all over the political spectrum push for DMCA reform. Tell your Congressmen that you support DMCA reform by visiting EFF's Action Center.

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Embarassment of Riches for Documentarians

Deeplink by Fred von Lohmann

Wow, documentary filmmakers suddenly find themselves with some of the very best resources explaining fair use that have ever been assembled for non-lawyers. First came the Center for Social Media's project to bring together documentarians to distill a Documentary Filmmakers' Statement of Best Practices in Fair Use. This is fantastic because it is short, free, written for non-lawyers, and grew out of discussions inside the documentary film community. Best of all, courts can look to this kind of "best practices" document when deciding fair use cases. So, with any luck, the documentary community is effectively making their own fair use law here, rather than waiting for Congress or the courts to resolve the questions. Bravo!

And now that great project has been joined by Bound By Law (also available in a bound edition from Amazon), a new comic book (!) from Duke Law School's Center for the Study of the Public Domain that describes fair use principles as they apply to documentary film-makers. The graphic novel form here is effectively used to put across a great deal of useful, practical legal information in a way that lay persons can use.

Now it's up to the rest of us to assemble similar resources for the other creators at the vanguard of the digital arts, like mash-up artists, digital satirists, and video remixers.

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