Microsoft Embraces Machinima ... and Maybe the GPL?

Deeplink by Fred von Lohmann

The big news in the machinima world this week has been Microsoft's new "Game Content Usage Rules," which is a license that explicitly authorizes the creation of machinima (and other derivative works) using Microsoft game content. As far as I know, this is the first time a major commercial game vendor has created a "machinima license" to facilitate this exciting new genre. (Check out This Spartan Life's interview of Malcolm McLaren for an example of the amazing things machinima creators are doing using Halo.)

Microsoft deserves praise for the new license (even if it's partly motivated by the imminent launch of Halo 3, which includes a "Saved Film" feature that is sure to unleash many new machinima creations). But at a time when the likes of Blizzard (World of Warcraft) and Valve (Counter-Strike) have left machinima creators in legal limbo, it's noteworthy that Microsoft is trying to do the right thing here.

The new license appears to give you permission to do things that would otherwise be forbidden by copyright law. These permissions are in addition to any fair use rights you might otherwise enjoy (according to Microsoft's lawyers, Xbox games do not include any contractual terms intended to strip you of those rights). So machinima creators who use Microsoft games now have two choices -- they can follow the rules set out in the new license, or they can fall back on their fair use rights.

For example, the license does not extend to "pornographic or obscene ... or otherwise objectionable" creations. So, if you want to do something like that, you're back to whatever fair use would permit (consult with a lawyer!). In other words, no machinima creators are worse off thanks to this license, and many are better off.

(And there may be more good news soon. Hugh Hancock and I had a conversation with some of the Microsoft lawyers and game designers who developed the new license. They assured us that they would be considering revisions that might address some misunderstandings that stemmed from the current draft.)

Finally, here's the interesting GPL intersection: this new Microsoft license appears to be a pure unilateral license (in other words, permission), not a contract. After all, it can't be a contract because gamers never see it or agree to it when they buy Microsoft games. But if Microsoft sues you for infringement, you can assert this license as a defense ("I didn't know it at the time, but Microsoft actually gave me permission, along with the rest of the world"). This is exactly the same legal mechanism that is the foundation of the GPL.

To those of us who are licensing lawyers, that's an interesting development, as there are those who have questioned the GPL to the extent it's not a contract. Apparently Microsoft agrees with the FSF that unilateral permissions "work" in the world of IP licensing.

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Is it Legal to Unlock Your iPhone?

Deeplink by Fred von Lohmann

Well, now that a high-school senior has done it, everyone wants to know: is it legal to unlock your iPhone?

The answer, as we lawyers like to say, is complicated. And, for that complicated answer, there is no one better qualified than Jennifer Granick, the Stanford Law School professor who obtained the DMCA exemption in 2006 for cell phone unlocking.

Rather than give the full exposition, I'll just encourage you to read her recent explanation at WIRED.

The iPhone's fantastic user interface is inspiring another consumer-electronics revolution: making people care about cell-phone unlocking. After my clients' long, successful battle before the U.S. Copyright Office to exempt phone unlocking from the anti-circumvention provisions of the Digital Millennium Copyright Act, have iPhone customers won the freedom to tinker with their cool new handsets? The answer, unfortunately, is that we still don't know.

One suggestion, however -- if you are going to be unlocking your iPhone, don't activate it using the usual iTunes process, lest you "agree" to the 21,000 words worth of contracts that await you there. Fortunately, there are plenty of other ways to activate an iPhone out of the box, which shouldn't involve clicking "I agree" to anything.

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minilinks for 2007-08-30

miniLinks by Danny O'Brien

• The Freedom to Read Online in Jeopardy
  EFF joins in amicus appeal of United States v. Forrester ruling.
  
• iPhone Freed From AT&T
  Your hardware delivered - back into your control.
  
• California Judge Decides Perl's "Artistic License" Is a Contract
  Free software advocates (in this case) would prefer copyright law.
  
• Geeks <3 Human Rights
  Tim Lee ponder's the techie love of civil liberties.
  
• WordPress Hosted Sites Blocked in Turkey
  A single defamation site brings down thousands of blogs.
  
• Walmart Offers DRM-free Music Downloads
  Support for restricting your fair use rights continues to crumble.
  
• The Law According to Godwin
  EFF's first lawyer, and now Wikimedia general counsel, is profiled.
  
• Microsoft Declares Genuine Customers Pirates
  Redmond's remote validation of Windows users fails.
  
• Is Comcast Breaking BitTorrent?
  The company denies it, but customers are seeing strange reset packets kill
  their seeds.
  
• Opening up the Law
  Tim Wu and Carl Malamad work to open up case law and the Federal Register.
  
• RMS Speaks at Stanford
  The creator of the General Public License speaks on GPL3 on September 10th.
  

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Universities Need to Resist the RIAA, Not Bully Their Students

Deeplink by Derek Slater

As students return to school, many colleges are ratcheting up their penalties and restrictions on P2P use. MTV News has a nice round-up, and here are some of the lowlights:

• UC Berkeley students will now be booted off the network for a week if they're accused of illegal file sharing.

• The University of Tulsa will force alleged filesharers to pay $250 in order to reactivate their network access. Stanford students who fail to respond within 48 hours will be hit with a $100 charge.
• The University of Kansas has adopted a one strike and you're off the network policy.
• Ohio University has decided to monitor its network and block all P2P applications.

It's long past time for colleges to realize that bullying their students won't get the RIAA off their backs. Universities have already gone out of their way to appease the industry over the last four years. Along with implementing penalties for alleged infringements, many colleges have wasted valuable resources on expensive network filtering tools and access to DRM-laden limited download services.

Of course, P2P use continues to grow unabated, and the campus crackdown can't and won't slow file sharing. Even if students were cut off from the Internet entirely, they could still use myriad other easily available alternatives to share music (like copying CDs, swapping hard drives, and private networks).

But that hasn't stopped the record industry from continuing to ramp up its misguided war on ordinary students, as detailed in our comprehensive report on the RIAA's four-year litigation campaign released today. Despite universities' efforts, the RIAA started its new "pre-settlement" threat campaign, and, in the six months since its start, the industry has singled out nearly 3,000 students across 100 different campuses for harsh fines. The RIAA is also lobbying hard for legislators to make universities do their dirty work. Just last month, Congress nearly passed a bill to take away education funds from schools that don't use filtering tools.

Enough is enough -- universities need to help put a stop to the RIAA's futile fight against file sharing. The longer it goes on, the more random fans will be hit with disproportionate penalties, the more educational resources will be wasted, the more legitimate uses of P2P will be chilled, and the more money will be left on the table. After all, tougher enforcement isn't putting a dime in artists' pockets.

Universities should insist on a blanket license for their students, collecting a reasonable regular payment -- for example, $5 a month -- in exchange for the right to keep sharing music with their classmates. With this solution, the RIAA can call off the lawyers and the lobbyists, and universities can get back to education instead of copyright enforcement.

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EFF Documents Shed Light on FBI Electronic Surveillance Technology

Deeplink by Marcia Hofmann

The Electronic Frontier Foundation (EFF) has obtained documents through the Freedom of Information Act that reveal the inner workings of the FBI's Digital Collection System Network (DCSNet), a software suite that allows the Bureau to conduct surveillance on a wide variety of digital devices.

As Ryan Singel writes in his extensive report for Wired News:

Many of the details of the system and its full capabilities were redacted from the documents acquired by the Electronic Frontier Foundation, but they show that DCSNet includes at least three collection components, each running on Windows-based computers.

The $10 million DCS-3000 client, also known as Red Hook, handles pen-registers and trap-and-traces, a type of surveillance that collects signaling information -- primarily the numbers dialed from a telephone -- but no communications content. (Pen registers record outgoing calls; trap-and-traces record incoming calls.)

DCS-6000, known as Digital Storm, captures and collects the content of phone calls and text messages for full wiretap orders.

A third, classified system, called DCS-5000, is used for wiretaps targeting spies or terrorists.

You can read more commentary from Ryan on Threat Level. Professors Matt Blaze and Steve Bellovin have also weighed in on the security implications of the system.

EFF obtained these documents through a FOIA lawsuit filed against the FBI last year. A federal judge has ordered [PDF] the Bureau to turn over new documents every month, so check back often the learn more about DCSNet.

As with all our FOIA documents, EFF encourages you to go through these files yourself and let the world know what you find. We ask only that you please mention EFF if you use these documents in any way. We're a nonprofit organization, and our funding for the FOIA Litigation for Accountable Government (FLAG) Project depends on showing that our work is important and relevant.

For more information about these documents or EFF's FLAG Project, please contact EFF Staff Attorney Marcia Hofmann at marcia(at)eff.org.

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Spy Chief Admits Telcos Collaborated With NSA Spying

Deeplink by Derek Slater

In a lengthy and revealing interview, the Director of National Intelligence Mike McConnell admitted that telecommunications companies collaborated with the NSA's massive domestic spying.

Of course, it's long been an open secret that the government is engaging in dragnet surveillance of millions of ordinary Americans and has backdoor access to telecommunications providers' networks and records databases. The overwhelming evidence includes statements from fully briefed members of Congress, whistleblower evidence from a former AT&T employee, and numerous newspaper reports. Alongside our lawsuit against AT&T, numerous other lawsuits have been brought against various carriers, including Verizon and MCI.

Yet the government has tried to sweep away these allegations as mere speculation, and has desperately tried to stop lawsuits against the the carriers by claiming that "whether any particular company (or type of company) is assisting the Government" is a "state secret." McConnell's sworn declaration in one customer lawsuit against Verizon states that: "Plaintiffs in these cases put directly at issue ... whether or not it has done so with the secret help of a private entity. The disclosure of any information that would tend to confirm or deny these allegations ... would cause exceptionally grave harm to the national security."

Now McConnell has conceded the truth: "[U]nder the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued."

This admission is critical. On the government's theory, the truth that is as plain as the nose on your face remains secret until the private sectors' assistance has been officially acknowledged by the Administration. With McConnell's statement, now the Administration itself has provided that acknowledgment. As we have argued in our case, the courts are well equipped to protect state secrets while determining whether the spying is illegal, and the evidence already on the record is sufficient to move forward with the case, but McConnell's statement should absolutely settle the question.

In the wake of these admissions by McConnell, the government is poised to repeat its claims that the illegal telco assistance is a secret. Next Thursday, government lawyers will argue their motion to dismiss lawsuits against Verizon in front of U.S. District Judge Vaughn Walker -- a motion to dismiss that is, again, based on the state secrets privilege.

Even though McConnell's candid interview shines a little more light on the illegal spying, much more needs to be made public about this still-shadowy program. In fact, it should not have taken so long for the Administration to start to openly discuss the program. Congress has a duty to check the President's power and should have already launched vigorous investigations into the NSA's activities. Yet nearly six years since the spying program first began and nearly two years since it was publicly revealed, Congress still has yet to do its job. Instead, it has rolled over to the Administration's requests for even more power to invade ordinary Americans' privacy.

This cannot stand; Americans deserve to know the truth about how their rights have been violated and to have those rights restored. Yesterday, Sen. Patrick Leahy threatened contempt proceedings if the Administration does not comply with subpoenas for information about the NSA spying, and now Congress must follow through and pry answers out of the Administration. Moreover, along with repealing its recent expansion of spying powers, Congress should not consider any further legislation until it has uncovered the truth and held accountable whoever has broken the law. The Administration's thin claims of state secrets can no longer be allowed to cover up the truth about its illegal activity.

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White House Flouts NSA Subpoena Deadline, But Will Congress Fight Back?

Deeplink by Derek Slater

Yesterday, the White House once again flouted Congress' authority and failed to comply with Senate subpoenas regarding the NSA's illegal domestic spying. In response, Senator Patrick Leahy threatened contempt proceedings, and stated that the compliance deadline, which was already delayed twice, would not be pushed back again.

That's certainly welcome news, but Congress can't let this turn into yet another set of empty threats. Tough talk is not enough -- after all, Congress has already made numerous requests for critical information about the spying program and let the President dodge them again and again. Instead of forcing his hand, it practically rewarded his evasiveness by capitulating to the Administration's outrageous demands and radically expanding domestic spying powers earlier this month.

Congress cannot allow itself to be pushed around any longer. It needs to make good on its threats and pry the truth out of the Administration using all available means, including by holding it in contempt.

And that must only be a first step towards the ultimate goal of stopping the President's abuse of power. Truth and accountability for the warrantless wiretapping of Americans should have come before any legislative changes were given even the slightest consideration. Now Congress needs to undo its mistake, starting with a repeal of the so-called "Protect America Act," the Administration's FISA "modernization" power grab.

Take action now and tell Congress to stop the warrantless wiretapping.

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Senator Cites EFF FOIA Work in Call for Investigation of Attorney General

Deeplink by Marcia Hofmann

EFF's Freedom of Information Act (FOIA) work has helped to prompt the head of the Senate Judiciary Committee to ask for an investigation into whether the attorney general has lied to Congress.

In a letter to the Justice Department Office of the Inspector General, Senator Patrick Leahy asked the agency watchdog to probe "potentially false or misleading testimony given by Attorney General Alberto Gonzales during his appearances before various congressional committees."

The evidence cited by Leahy includes documents that EFF obtained through a FOIA lawsuit against the Justice Department for records related to the FBI's misuse of National Security Letters. As the letter notes:

Attorney General Gonzales said in April 27, 2005, testimony before the Senate Select Committee on Intelligence with regard to National Security Letters (NSLs) and other information-gathering techniques that statutory civil liberties safeguards had been effective and that ?[t]here has not been one verified case of civil liberties abuse.? Similarly, his responses to written questions following his April 19, 2007, Senate Judiciary Committee hearing indicated that he had not learned of problems with NSLs prior to your March 2007 report on the issue. Documents obtained in a Freedom of Information Act lawsuit indicated that the Attorney General had in fact received numerous reports in 2005 and 2006 of violations in connection with NSLs and other surveillance tools. The Attorney General in his July 24 testimony suggested that his prior testimony and answers were premised on the fact that he was not aware of any ?intentional? violations. The Washington Post has reported that at least one intentional violation was reported in the relevant time period.

Leahy's request shows why the FOIA is an important tool for making sure that government works the way it should. Through its FOIA Litigation for Accountable Government (FLAG) project, EFF files FOIA requests and lawsuits for documents about the government's use of investigative power, among other things. Our goal is to pry information out of government filing cabinets and make it available for all to see, which helps to ensure that public officials are held accountable for their actions.

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EFF FOIA Docs: Soldiers Rarely Blog Information That Threatens Military Operations

Deeplink by Marcia Hofmann

According to documents released to the Electronic Frontier Foundation (EFF) by the Army and Defense Department, soldier journalists post far less information that could harm military operations than official .mil websites do. These documents call into question the need for new restrictions on soldiers' online speech, which some critics say will cause military bloggers to cut back on their posts or shut down their sites altogether.

The documents, which EFF obtained through a Freedom of Information Act (FOIA) lawsuit, shed light on the work of the Army Web Risk Assessment Cell (AWRAC) [PDF], a unit that monitors official and unofficial military websites "for information and trends of data that could be used to breach security or pose a threat to defensive and offensive operations and military personnel."

According to statistics [PDF] obtained from the Army, the AWRAC spotted no more than 28 content violations on 594 military blogs (or "milblogs") between January 2006 and January 2007. In contrast, the unit found at least 1,813 content violations on 878 official military websites during the same period.

(The numbers cited in the Army's own documents vary widely, but we've drawn our conclusion on the figures we found that are most favorable to the military. However, the documents show that the number of content violations discovered may have been as as low as 14 on milblogs, and as high as 4,052 on official military sites.)

More after the jump.

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Judges Grill Government at NSA Surveillance Hearing

Deeplink by Derek Slater

In a packed San Francisco courtroom yesterday, EFF urged the 9th U.S. Circuit Court of Appeals to allow AT&T customers to continue to fight against illegal spying on their telephone and Internet communications.

A ruling probably won't come out for months, but at the hearing the judges were certainly asking the right questions about the serious constitutional issues at stake. The government is trying to get the case thrown out, arguing that thin claims of "state secrets" can trump the courts' constitutional duty to uphold the rule of law. All three judges grilled the government's attorney on this point and appeared worried that granting its motion to dismiss would amount to an abdication of authority. Judge Harry Pregerson asked the government's attorney, "Are you saying the courts are to rubber-stamp the determination of the executive of what's a state secret? What's our job?"

As we've argued, the courts are well equipped to protect state secrets while determining whether the spying is illegal and if so, to put a stop to it. Judicial review is one of the essential checks and balances that define our democracy. No president, now or in the future, should be allowed unfettered authority to evade the courts and trample on your freedom.

Audio from the whole oral argument is available here. Wired's Threat Levels posted a live blog blow-by-blow, and ACLU-NC's Nicky Ozer posted this summary after attending the hearing. The Washington Post, NY Times, San Jose Mercury News, News.com among many others have posted reports.

The panel of judges also heard oral arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the federal agents illegally wiretapped calls between the charity and its lawyers. The government wants this case dismissed on state secrets grounds as well. The LA Times covered the case's background yesterday, and you can hear the oral argument here.

Update: Video from the hearing is now available here.

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