Press Releases related to DMCA
EFF Marks 10th Anniversary of DMCA with Report on Law's Unintended Consequences
Ten-Year Legacy of Harm to Fair Use, Free Speech
San Francisco - Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.
"Unintended Consequences: Ten Years Under the DMCA" focuses on the most notorious aspect of the law: its ban on "circumventing" digital rights management (DRM) and "other technical protection measures." Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. "Unintended Consequences" collects reports of the law's most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.
"Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it's been a decade of costs, with no benefits," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn't like. It's time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws."
For "Unintended Consequences: Ten Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca
For more on the DMCA:
http://www.eff.org/issues/dmca
Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
Judge Shoots Down Universal's Bogus Infringement Allegations
Ruling Affirms Right to Resell Promo CDs
San Francisco - A federal judge has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores.
Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs could trump Augusto's right to resell materials that he owns, guaranteed by copyright law's "first sale" doctrine.
In dismissing UMG's lawsuit late Tuesday, U.S. District Court Judge S. James Otero ruled that the promo CDs are gifts distributed by UMG, as they are mailed free and unsolicited to thousands of people without any expectation or intention of their return. The first sale doctrine says that once the copyright owner sells or gives away a copy of a CD, DVD, or book, the recipient is entitled to resell that copy without further permission.
"This is a very important ruling for consumers, and not just those who buy or sell used CDs," said EFF Staff Attorney Corynne McSherry. "The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames. This ruling affirms and protects the traditional balance between the rights of copyright owners and the rights of the public."
"It was clear to the court that these CDs were the property of Mr. Augusto, and therefore he had the right to resell them," said Joseph C. Gratz, attorney with Keker & Van Nest. "Copyright holders can't strip consumers of their first sale rights just by sticking a 'Not for Sale' label on a CD."
Mr. Augusto's victory comes almost one hundred years to the day after the United States Supreme Court's June 1, 1908 decision in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), established the first sale doctrine as a central part of American copyright law.
EFF has long fought efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.
For the full order:
http://www.eff.org/files/filenode/umg_v_augusto/LA07CV03106SJO-O.pdf
For more analysis:
http://www.eff.org/deeplinks/2008/06/liberation-day-promo-cds-victory-um...
Contacts:
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Joseph C. Gratz
Attorney
Keker & Van Nest, LLP
jgratz@kvn.com
Spoon-Bending 'Paranormalist' Ramps Up Illegal Attacks on Online Critic
More Bogus Copyright Claims in Uri Geller's Frivolous Lawsuit
San Francisco - The Electronic Frontier Foundation (EFF) urged a judge Monday to dismiss a frivolous lawsuit filed by Uri Geller -- the "paranormalist" famous for seemingly bending spoons with his mind -- because of its blatant attempt to silence critic Brian Sapient with bogus copyright claims.
Geller's quest to shut down Sapient's criticism started when Sapient uploaded video to YouTube challenging Geller's assertions about his mental powers. The 14-minute segment came from a NOVA television program, but Geller and his corporation Explorologist Ltd. claimed the video infringed its own copyrights and had the video removed from YouTube. Sapient filed a counter-notice under the Digital Millennium Copyright Act (DMCA), had the video restored to YouTube, and sued Geller for misrepresentation.
As Sapient was challenging Geller's meritless claims, Explorologist filed a separate lawsuit against Sapient. The suit includes more bogus charges, with many of them based on the assertion that Explorologist has the copyright to eight seconds of the introductory footage in the NOVA video. EFF's motion to dismiss the case points out the numerous holes in this claim, arguing that even if it were true, eight seconds is a classic fair use -- especially given the critical purposes of the use. The brief also argues that Section 230 of the Communications Decency Act protects Sapient from infringement claims and other charges in Explorologist's complaint, immunizing Sapient as the publisher of third-party content.
"Copyright law is meant to protect creative artists, not hypersensitive public figures who don't like criticism," said EFF Senior Staff Attorney Jason Schultz. "The First Amendment does not allow Geller or his corporation to silence legitimate discussion of his abilities."
Meanwhile, Sapient's lawsuit against Geller is still pending before the Northern District of California. The suit asks for damages due to Geller's DMCA violation, a declaratory judgment that the NOVA video does not infringe Geller's copyrights, and Geller to be restrained from bringing any further legal action against Sapient in connection to the clip.
For the full motion to dismiss Geller's suit:
http://eff.org/legal/cases/sapient_v_geller/sapient_motiontodismiss.pdf
For more on Sapient v. Geller:
http://eff.org/legal/cases/sapient_v_geller
Contacts:
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org
Hollywood Continues Legal Battle Against Remote DVRs
EFF Weighs in On Behalf of Innovators in Remote Computing
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups, trade associations, and businesses urged a federal appeals court Friday to overturn a damaging lower court ruling that puts companies that provide remote computing technologies at risk of copyright infringement liability.
The case involves a remote "digital video recorder" (DVR) developed by Cablevision -- the fifth largest cable television provider in the U.S. -- that allows customers to record programs provided through their Cablevision subscription for later viewing, much like many other DVR offerings. However, instead of storing the recorded programs using a DVR at home, Cablevision's remote DVR stores the recorded programs on equipment located on Cablevision's premises. Twentieth Century Fox, the Cartoon Network, and other television networks filed suit, and a district court in New York ruled against Cablevision, reasoning that Cablevision, not its customers, was making the copies. That ruling has now been appealed by Cablevision.
"The Supreme Court has already ruled that consumers have a fair use right to time-shift TV shows," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters."
In an amicus brief filed the with 2nd U.S. Circuit Court of Appeals Friday, EFF and the coalition argued not only that the lower court ruling is at odds with copyright law, but also that it poses a threat to innovation in remote computing services more generally. Consumers often have remote access to digital services that provide better performance more conveniently than devices they could buy for their home, but this decision opens the door to more lawsuits that could shut these services down.
"Both consumers and the enterprise are increasingly enjoying the benefits of remote computing capabilities, relying on services like Amazon's EC2, Google Apps, and Apple's .Mac, for processing power, applications, and data hosting," said von Lohmann. "It can't be the case that these companies are automatically liable for every copyright infringement committed by every user, whether they know about it or not."
For the full amicus brief filed in the case:
http://eff.org/legal/cases/studios_v_cablevision/CDF_et_al_amicus.pdf
For more on protecting technology innovations:
http://www.eff.org/innovate
Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
'Electric Slide' Creator Calls Off Online Takedown Campaign
Agreement Ends Copyright Threats Over Non-Commercial Use of Popular Dance
San Francisco - The man who claims to have created "The Electric Slide" has agreed to call off his online video takedown campaign and to stop threatening people using the popular line dance for non-commercial purposes. Instead, he's making the dance available for all noncommercial use.
The agreement settles a lawsuit filed by the Electronic Frontier Foundation (EFF) on behalf of videographer Kyle Machulis, who posted a concert video to YouTube that included a ten-second segment of audience members attempting to do the Electric Slide. Richard Silver sent a takedown demand to YouTube under the Digital Millennium Copyright Act (DMCA), alleging he owned the copyright to the Electric Slide and that the video infringed his rights. Machulis's video was removed from the site.
"Mr. Silver's misuse of the DMCA interfered with our client's free speech rights," said EFF Staff Attorney Corynne McSherry. "New technologies have opened multiple avenues for artists and their audiences to create, share and comment on new works. We cannot let absurd copyright claims squash this extraordinary growth."
Under the terms of the settlement, Silver will license the Electric Slide under a Creative Commons license -- allowing the performance, display, reproduction or distribution of any recorded performance of the dance in any medium for non-commercial purposes. Silver has agreed to post these terms on any of his current or future websites that mention the Electric Slide so that users are aware of the Creative Commons license.
"Often, 'all rights reserved' copyright is too restrictive and prevents people from being able to legally use and build upon other people's creativity in any reasonable way," said Eric Steuer, Creative Director of Creative Commons. "When that is the case, it makes sense to adopt a more flexible, 'some rights reserved' approach to copyright. We couldn't be happier that Mr. Silver is using a Creative Commons license to make the Electric Slide freely and legally available to anyone in the world to use for noncommercial purposes."
"We are pleased that Mr. Silver has stepped up and recognized fair uses of the Electric Slide," said EFF Staff Attorney Jason Schultz. "Copyright law is meant to encourage creativity. It must not be used to chill free expression."
For more on the Electric Slide lawsuit:
http://www.eff.org/legal/cases/electricslide/
For more on Creative Commons:
http://creativecommons.org/about/licenses
Contacts:
Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
Eric Steuer
Creative Director
Creative Commons
eric@creativecommons.org
Universal Music Group Backs Off Claims to Michelle Malkin Video
Online Criticism of Hip Hop Artist Akon Drew Baseless Copyright Allegations from UMG
San Francisco - Universal Music Group (UMG) has backed off of its attempt to silence nationally syndicated columnist Michelle Malkin's online criticism of one of its controversial artists after Malkin fought back with the help of the Electronic Frontier Foundation (EFF).
Earlier this month, UMG filed a baseless copyright notice regarding a recent episode of "Vent with Michelle Malkin" -- an irreverent daily video podcast produced by Malkin's conservative Internet broadcast network "Hot Air." In the video posted on YouTube, Malkin called Universal hip hop artist Akon a "misogynist," supporting her criticism with excerpts from Akon's music videos as well as onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad.
Despite Malkin's legally protected fair use of the Akon footage to support her criticism, UMG claimed that the podcast infringed its copyright. UMG submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing YouTube to pull the episode down. However, with EFF's assistance, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. As a result, the video is back up on the site, one that has become an important forum for political speech of all kinds.
"We're pleased that UMG has backed off its bogus copyright claim and stopped squelching Michelle Malkin's video criticism," said EFF Senior Staff Attorney Kurt Opsahl. "However, it remains inexcusable. UMG's misuse of federal law made the video unavailable on YouTube for a full week, denying the Hot Air podcast access to YouTube's extensive audience during a time when the controversy about Akon's behavior was all over the news."
After UMG rescinded its takedown request, YouTube briefly continued to block access to the video podcast, claiming it included a "terms of use" violation. However, after EFF contacted YouTube to discuss the alleged violation, the video was quickly returned to public view.
"My Hot Air staff and I are grateful for EFF's invaluable aid in forcing UMG to retreat," said Malkin. "Shame on any copyright holder who would attempt to use the DMCA to intimidate and silence critics. We hope YouTube and its corporate partners, like UMG, will think twice next time before yanking video commentary and criticism that clearly falls under fair use."
Reposted episode of "Vent with Michelle Malkin":
http://www.youtube.com/watch?v=YZL1IHw6ea8
More on the controversy from Michelle Malkin:
http://hotair.com/archives/2007/05/09/hot-air-eff-challenge-umg
More on intellectual property and free speech:
http://www.eff.org/IP/freespeech
Information about Hot Air:
http://hotair.com/about
Contacts:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com
About EFF:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/
Malkin Fights Back Against Copyright Law Misuse by Universal Music Group
EFF Supports Conservative Columnist Who Criticized Controversial Hip Hop Artist Akon
San Francisco - With the legal backing of the Electronic Frontier Foundation (EFF), nationally syndicated columnist and prominent blogger Michelle Malkin has contested music giant Universal Music Group's (UMG's) improper attempt to silence her online criticism of one of its artists.
In a recent episode of "Vent with Michelle Malkin" -- an irreverent daily video podcast produced by Malkin's conservative Internet broadcast network "Hot Air" -- Malkin criticized Universal hip hop artist Akon, calling him a "misogynist" and his antics "vulgar and degrading." She supported her criticism with excerpts from Akon's music videos as well as controversial onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad. Malkin's accompanying commentary condemned both Akon's lyrics and his behavior.
On Thursday, May 3 -- after Malkin appeared on a nationally syndicated talk radio show to put pressure on Akon's sponsors -- UMG claimed the podcast infringed its copyrights and submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing online video hosting site YouTube to pull the episode down. Yesterday, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. Under the DMCA, YouTube can repost Malkin's video ten days after receiving her counter-notice.
"It is impermissible and irresponsible for copyright holders to use the DMCA as a pretext to squelch criticism," said EFF Senior Staff Attorney Kurt Opsahl. "Ms. Malkin had every right under copyright law to criticize UMG and Akon, and to use footage of Akon to emphasize her point. Criticism and commentary are not only the core of fair use, but vital to our traditions of free speech."
"We believe this is a clear attempt by UMG to hide the truth about Akon and intimidate critics," said Malkin. "The Hot Air staff and I are grateful for EFF's willingness to challenge a corporate bully wrapped in the DMCA cloak."
YouTube's message explaining the UMG takedown:
http://www.youtube.com/watch?v=YZL1IHw6ea8
"Vent" podcast (on hotair.com) that was removed from YouTube:
http://hotair.com/archives/2007/05/03/akon-story-gaining-steam
Michellemalkin.com post discussing the takedown:
http://www.michellemalkin.com/archives/007446.htm
More on intellectual property and free speech:
http://www.eff.org/IP/freespeech
Information about Hot Air:
http://hotair.com/about
Contacts:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com
DMCA Abuser Apologizes for Takedown Campaign
Michael Crook Agrees to Stop Attacks on Free Speech
San Francisco - Michael Crook, the man behind a string of meritless online copyright complaints, has agreed to withdraw those complaints, take a copyright law course, and apologize for interfering with the free speech rights of his targets.
Upholding the Legality of Reverse Engineering
Judges Weigh Issues in Eighth Circuit Videogame Case
Consumer Choice at issue in Oral Argument in Blizzard v. Bnetd
St. Louis, MO - On Monday, June 20, the 8th Circuit Court of Appeals will hear oral arguments in Blizzard v. BnetD, a case that could dramatically impact consumers' ability to customize software and electronic devices and to obtain customized tools created by others.
Along with co-counsel Paul Grewal of Day Casebeer, the Electronic Frontier Foundation (EFF) is representing three open source software engineers who reverse-engineered an aspect of Blizzard's Battlenet game server in order to create a free software game server called BnetD that works with lawfully purchased Blizzard games. The BnetD server lets gamers have a wider range of options when playing online. The lower court held that the reverse-engineering of the games needed to create this new option for consumers was illegal.
The 8th Circuit Court of Appeals will determine whether the three software programmers were in violation of the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF will argue that the DMCA expressly protects the programming and distributing of programs such as BnetD and this protection cannot be undercut by general state contract law as applied to EULAs.
EFF took the case to stand up for consumer choice in the marketplace. Reverse engineering is often the only way to craft a new product that works with older ones. Congress expressly recognized this when it created an exception to the DMCA for reverse engineering. Whether it's allowing gamers to choose a better server for Internet play, or allowing a printer owner to purchase from a range of printer cartridge replacements, reverse engineering is a critical part of innovation in a world where more and more devices need to talk to each other in order to operate correctly.
The hearing will take place Monday, June 20, at 9 a.m. at the Eighth Circuit US Court of Appeals, 27th Floor, Southeast Courtroom, at the Thomas F. Eagleton Courthouse, 111 South 10th Street in St. Louis, MO.
Contacts:
Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
