Deeplinks Blogs related to Free Speech
EFF and ACLU of Northern California to ISPs and Content Owners: Do Your Part to Protect Political Speech
Commentary by Corynne McSherryOn blogs, personal and political websites, and through user generated content sites, ordinary citizens in extraordinary numbers are recreating a public sphere and reinvigorating the democratic debate at the core of our political system. 46% of Americans have already used the Internet in connection with the political campaign- more than during all of 2004.1 User-generated content is playing a particularly integral role, with 35% of Americans watching online videos and 10% using social networking sites to engage in political activity. 2
An overwhelming number of political discussions are taking place in publicly-accessible but privately-owned, online town squares. Which means that this important political speech depends on service providers, users, and content owners all doing their part to safeguard free speech.
Unfortunately, political speech has been threatened repeatedly by claims that controversial material violates a site’s terms of use or infringes copyrights or trademark rights. Here are just a few recent examples:
- The International Olympics Committee demanded that YouTube remove a video of a protest by Students For A Free Tibet, based on a bogus copyright infringement claim. The IOC subsequently withdrew the notice, but the IOC’s demand is a lesson in the dangers of hair-trigger DMCA takedowns by service providers.
- An alleged terms of service violation caused YouTube to take down a slideshow of a military funeral.
- Another alleged terms of use violation caused YouTube to remove a video critical of John McCain, apparently because the video included numerous graphic images of the effects of war. But those images were integral to the commentary: the video focused on McCain’s support for the Iraq war.
- An apparent copyright complaint caused Broadview Networks to shut down a political website parodying Exxon’s environmental policies.
- The Republican National Committee threatened the online vendor CafePress for allowing users to create t-shirts using Republican trademarks, like "Grand Old Party," or the official version of the elephant logo.
- The Chicago Auto Show tried to use allegations of trademark infringement to force the shutdown of a satirical website promoting transportation alternatives.
- The Associated Press tried to use the Digital Millennium Copyright Act (DMCA) to force the takedown of blog entries that reproduced excerpts of AP news stories—some of them just a few words long.
ACLU of Northern California and EFF urge service providers to take extra precautions before pulling the plug on political speech. Remember that you're facilitating a new era of reason and debate, and that there are laws that protect you as a facilitator. By taking that responsibility seriously, you’ll do right by your users, content owners and the political process.
We urge content owners to count to ten and look at the Fair Use Frequently Asked Questions and Fair Use Principles for User-Generated Video Content for some guidance before firing off a complaint. Remember that you are legally obligated to consider whether the use of your material is a fair use. Consider carefully whether actions may result in the loss of free speech, and remember: the antidote to free speech that you don't like is MORE free speech. Make your voice heard with a written blog post, a video blog post, or a message in the comment thread. We also urge users to contact us if they feel that their political speech has been improperly censored.
As we move forward into the fall election season, the Internet can continue to revitalize our political lives in exciting and unforeseen ways—but only if service providers, users and content owners all do their parts. No matter where you stand on the candidates or the issues, we should all agree on one principle: No downtime for online free speech!
- 1. http://www.pewinternet.org/pdfs/PIP_2008_election.pdf
- 2. Id. As many as 65-milliion Americans watched the virally distributed, political web video, “This Land,” in 2004. Under the Radar and Over the Top: Online Political Videos in the 2004 Election. http://www.ipdi.org/UploadedFiles/web_videos.pdf
Wikipedia Wins Dismissal of Baseless Defamation Claims
News Update by Rebecca JeschkeIn a victory for free speech and user-generated content, a New Jersey judge has dismissed baseless defamation claims against the operator of Wikipedia. In a recent ruling, the judge correctly found that federal law immunizes the Wikimedia Foundation from liability for statements made by its users.
This case began when literary agent Barbara Bauer sued Wikimedia, claiming the organization was liable for statements identifying her as one of the "dumbest of the twenty worst" agents and that she had "no documented sales at all." EFF and the law firm of Sheppard Mullin Richter & Hampton represented Wikimedia, and moved to dismiss the case in May, arguing that under Section 230 of the Communications Decency Act, operators of "interactive computer services" such as Wikipedia cannot be held liable for users' comments.
Section 230's blanket protection of sites like Wikipedia does not mean that alleged defamation on the Internet cannot be challenged in court. Instead, the law requires that litigants direct their efforts at the speakers themselves and not the forums where statements were made. This means that sites like Wikipedia, Craigslist, and other online communities can continue to include user-generated content without living in fear of costly lawsuits.
Since it was signed into law over a decade ago, courts across the country have consistently applied the protections of Section 230 broadly, fulfilling Congress' intent to foster online interactive communications. We're pleased to add this case to the list.
In Memoriam: Ed Foster, 1949-2008
Deeplink by Fred von LohmannEd Foster, the journalist and consumer advocate behind InfoWorld's GripeLine column and GripeLog blog, died of a heart attack this weekend. He was 59.
It's no exaggeration to say that Ed was one of the preeminent consumer rights activists of the digital age. During his more than 20 years as a "reader advocate" at InfoWorld, he was far ahead of his time, recognizing that in a world increasingly dominated by software and online services, the digital consumer needed a champion when squaring off against the likes of Microsoft, Adobe or AutoDesk. Following in the traditions of the best consumer reporters before him, Ed exposed software vendors and online service providers that treated their customers shabbily.
But it was in his tireless work against "sneakwraps" -- those "end user license agreements" (EULAs) and "terms of service" (TOS) that require our "agreement" -- that Ed was without peer. You may not be reading all those "agreements" before you click thru, but Ed was. He recognized earlier than most that sneakwraps were going to be the digital consumer's worst nemesis, the mechanism that stripped consumers of the legal protections they enjoy when buying a book, a chair, or an automobile. Long before most consumer groups were thinking about sneakwraps, Ed was covering and participating in efforts to block UCITA, a package of state laws pushed by large software vendors that would have stripped consumers of valuable protections under contract law (UCITA was ultimately adopted by only two states, VA and MD, and has since been abandoned). Ed also contributed his insights on DRM, product activation, and reverse engineering to groups like AFFECT (Americans For Fair Electronic Tranactions) and EFF, making sure we knew what consumers were dealing with in the trenches.
Ed will be sorely missed, both professionally and personally, by all who benefited from his wisdom. Here are a few of my personal favorites from among his remarkable output of columns and posts:
Embroidering on a Copyright Shakedown Theme -- casting the spotlight on the "Embroidery Software Protection Coalition" (ESPC) after it sent settlement demand letters to grandmothers who bought embroidery software on eBay. Based on Ed's tip, EFF stepped in to protect the interests of innocent purchasers.
Sneakwrap Files: McAfee Automatic Renewals -- a consumer advocate's classic, wherein Ed confronts McAfee over the "automatic renewal" provision buried in the fine print of their EULA. McAfee backs down and coughs up a refund.
The Lexmark Car -- an April Fool's post explaining what the world would be like if a car manufacturer tried to get away with the kinds of shenanigans practiced by Lexmark in connection with their laser toner cartridges.
Into the DMCA Groove -- in 2003, an eBay seller gets into hot water after trying to auction a promo CD given away at The Gap. Ed cries foul, predicting 5 years in advance the exact outcome of EFF's UMG v. Augusto case, where a court found that "promo use only" labels can't trump the first sale doctrine.
More ISPs Decide to Filter Usenet Newsgroups
Deeplink by Jennifer GranickNew York Attorney General Andrew Cuomo recently succeeding in pressuring AOL and AT&T to join the ranks of Verizon, Sprint, and Time Warner Cable in limiting access to many or all of the Usenet newsgroups hosted on their servers. This tactic will hinder free speech and the access to information in Usenet communities, without deterring the child pornographer. But since the ISPs are “voluntarily” bowing to political pressure, rather than obeying a statutory edict, traditional First Amendment court challenges are unlikely to protect these online communities.
Attorney General Cuomo has pressured these companies into censoring enormous amounts of First Amendment-protected material after an investigation found 88 groups containing child pornography, or 0.5% of the active discussion groups in the alt.* hierarchy. Verizon and Sprint are taking down one gigantic subset of groups, the very popular alt.* hierarchy, AT&T will block all alt.binaries.* groups, while Time Warner Cable and AOL are shutting down their Usenet service entirely. (link) California's Governor and Attorney General have jointly called on California's service providers to follow New York's initiative in "removing child pornography from existing servers and blocking channels that disseminate the illegal material."
Usenet is a technology that predates the birth of the World Wide Web. Similar to bulletin boards, it allows for conversation threads on a wide variety of topics. The alt.* hierarchy alone contains nearly 19,000 different groups. (link) Blocking the alt.* hierarchy, which is the largest and most active, predominantly censors innocent discussions in order to stop illicit activity in a handful of them. Examples of some of the groups that will no longer be available are alt.adoption, alt.culture, and even alt.horology (discussing the science of timekeeping). Blocking all of Usenet throws out even more legitimate and useful expressive speech.
Congress and the courts have struggled for more than 10 years to address the issue of "objectionable" Internet content, without a constitutionally permissible result. Two well-known attempts by Congress were the passage of the 1996 Communications Decency Act and the 1998 Child Online Protection Act. Both attempted to punish individuals who transmitted indecent material that was harmful to minors. The U.S. Supreme Court has ruled these provisions unconstitutional because they block speech that would be protected by the First Amendment in contexts outside of the Internet. States have also attempted to preemptively censor material. In 2002, the Pennsylvania legislature attempted to hold ISPs criminally liable for child pornography available on the Internet. The Pennsylvania Attorney General was able to unilaterally and secretly order ISPs to block access to IP addresses suspected of containing child pornography, resulting in the blocking of many innocent sites (particularly when the same IP address was used to host a variety of websites). A state court soon struck down that law as unconstitutional for violating both due process and prior restraint of speech.
The censorship demanded by NY Attorney General Cuomo arbitrarily filters an entire electronic neighborhood due to the activities of a few of its residents. Measures already existed to take down objectionable material from Usenet. The kind of responsive enforcement that has been previously used balances free speech and the need to stop the dissemination of child pornography much better than the arbitrary, blanket ban to which the ISPs have agreed. Even so, the tactic will not stop committed child pornographers. ISPs are only blocking their own internal Usenet servers, access to Usenet groups on remote websites remains unblocked. As a result, these actions will do little to stop the threat they are intended to prevent. (link)
Because imposed online censorship inevitably goes to far and has never been upheld in the courts, it is not surprising that Attorney General Cuomo chose to apply political rather than legal pressure to the ISPs. While Internet users have First Amendment rights to speech and expression online, ISPs also have a First Amendment right not to carry content that they do not want to promote. To the extent the filtering program is “voluntary”, it is not the government censoring Usenet or the ISPs, but the ISPs choosing what speech they want to carry. Still, ISPs offer the critical public service of providing people with access to the prosperity of information available online. They have an obligation to consider the effects of their censorship on innocent material, and not just the political expediency of accommodating the Attorney General’s request. The heavy-handed approach of shutting down an entire online service is the least efficient and effective way to accomplish their legitimate goal. Usenet is a communication protocol, no different from Hypertext Transfer Protocol (HTTP), which makes the Web possible. Although the Web is also plagued by some amount of objectionable material, no one would remotely consider blocking access to the entire internet an appropriate solution. ISPs should not take advantage of the relatively small size of the Usenet community to deny their customers access to the diverse forms that content can take on digital networks.
*Thanks to Nick Jackson, summer intern, for his work on this Deeplink
B-24 Liberated!
Deeplink by Corynne McSherryLast month we told you about Lockheed Martin's effort to use trademark infringement claims to cause the removal of digital images of classic military aircraft from TurboSquid, a stock images site. The central mark at issue was the term “B-24,” which Lockheed managed to register as a trademark for use in connection with scale models of airplanes. We sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections. We're pleased to report that Lockheed has decided to withdraw its claim, and TurboSquid is putting the images back up forthwith.
This is a good outcome, but the problem remains. Because online communication and commerce often depends on intermediaries like TurboSquid, who may not have the resources or the inclination to investigate trademark infringement claims, it is much too easy for trademark owners like Lockheed to ignore fair use and shut down legitimate content. And not every target of improper claims is going to have the resources to push back.
One way to help prevent future overreaching claims is for trademark owners to learn that a trademark registration doesn’t give you a right to control everyday use of regular descriptive terms. Another is for large trademark owners to set up websites or email "hotlines" where the targets of trademark claims can seek review and prompt withdrawal of the claim if the takedown request was in error. Such a hotline won't stop real abuse, but will provide a relatively painless way for trademark owners to correct honest mistakes. Finally, service providers should institute a form of counter-notice procedure that would allow those who believe they have been accused unfairly to quickly determine the basis for a takedown, and request reconsideration. Real infringers won't bother to take advantage of such a procedure, but fair users could use it to show that their use is permissible (and therefore does not put the service provider at risk).
Knitwit BBC Goes After Dr Who Fans
Deeplink by Danny O'Brien
Here's a fascinating UK legal analysis of an incident we see occurring all over the world: an over-eager rightsholder undermining Internet goodwill by pursuing their own fans for supposed IP infringements.
Andre Guadamuz, is a lecturer at the Edinburgh University school of law, and organizes the fantastic British conference on "geek law", Gikii. He was recently put in contact by the Open Rights Group with Mazzmatazz, a Dr Who fansite which posts knitting patterns of the current batch of Dr Who monsters, including those obedient servants of man, the Ood (see above).
BBC Worldwide, the commercial wing of the public service BBC, sent the site a demand to remove "any designs connected with DR WHO" -- even though the site was offering them free to anyone who wants to knit their own loveable Who-related terrors.
Guadamuz covers the legal ground, and suggests that, like many rightsholders, the BBC has less power to stop fans from creating their own transformative works than they might think. Sadly, that's not enough to save the woolly Ood designs which were taken down out of concern for just the threat of legal action.
As Guadamuz notes, the BBC and Dr Who production staff should know better than to pursue a campaign of online threats against their own fans. These are the people that kept the BBC's now-lucrative Who franchise going during years of neglect by its owners; these are the people who actively promote the current series; and, in the UK at least, these are the people who pay the bulk of BBC's salaries.
Like Dr Who's Ood, fans are happy to serve their favorite franchises when treated well. But if the BBC starts treating them like this, they can all too easily rise up and attack the very brand value the BBC is overzealously seeking to protect.
How Surveillance Hurts Free Speech
Deeplink by Hugh D'AndradeSunday's LA Times has a great opinion piece by political writer Julian Sanchez, situating the current debate over FISA reform within the long and sordid history of illegal surveillance in the US.
Going back to the '20s, Sanchez reviews multiple occasions when authorities have used spying powers not to protect the country, but to further the political aims of parties and politicians:
The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts — and the presidents they served — had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices — even Eleanor Roosevelt and the Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."
Sanchez traces the history of US government surveillance abuses by both Democrats and Republicans throughout the 20th century. He emphasizes that surveillance isn't just a threat to privacy — it's a threat to free speech. That's why today's wiretapping debate matters, even to those who may think they have nothing to fear:
It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.
The Atlantic Monthly's Matthew Yglesias follows up, putting the current legislative fight over immunizing telephone companies in context:
Given the long bipartisan record of wiretap abuse, and given the greater range of possible abuses under modern technological circumstances, it's all-but-inevitable that if we further weaken the restrictions on the White House's ability to act, that abuses will happen.
It's really baffling to me that Republican members of congress — and all-too-many Senate Democrats — don't see it this way. Unlimited, unaccountable power will be abused, and not always in ways that Republicans like.
A Free Speech Double Whammy: Flawed Anti-Phishing Bill Would Dilute Trademark Fair Use and Anonymity Protections
Deeplink by Corynne McSherryCongress is contemplating a so-called “Anti-Phishing Consumer Protection Act” (APCPA) that takes an odd view of consumer protection. In the name of stopping phishing schemes, Senator Olympia Snowe has introduced S. 2661, a bill that would expand trademark law, limit consumer access to information about competitive products, and eviscerate key protections for anonymous speech. Co-sponsors are Senators Bill Nelson and Ted Stevens (yes, THAT Ted Stevens).
The bill starts off relatively inoffensively by prohibiting the use of false information to solicit identifying data from a computer (this was already illegal, but we’ll let that go for now). But then it goes on to forbid the use of brand names in domain names, and the use of another’s domain name in emails, on websites, or in web ads. This prohibition is unnecessary: if the use of a brand name in a domain name is confusing, it is already actionable under trademark law. And it is dangerous because, unlike current federal trademark law, the APCPA does little to protect noncommercial and comparative advertising uses of trademarks. For example, U.S. trademark dilution law excludes noncommercial, parodic and comparative uses. Under the APCPA, however, noncommercial use is merely a factor to be “considered,” not a clear exclusion, and comparative use is not explicitly protected at all. Given that trademark law simply doesn’t apply to noncommercial uses of marks, such meager “protection” for noncommercial use is unacceptable. Moreover, it appears that the bill would give a new weapon to folks like Sanofi-Aventis, the pharmaceutical giant that tried to use trademark law to shut down a news site about a new and controversial drug, Acomplia, because the site (www.acompliareport.com) included the name of the drug.
To make matters worse, another provision allows any Tom, Dick or Harry to force domain name registrars to reveal a customer’s personally identifying information by simply sending an email alleging that the customer has violated the new law. No need to comply with the traditional legal niceties of, say, an actual filed lawsuit or a subpoena that might permit the customer to go to court to protect her anonymity. A mere allegation is enough.
Sure, phishing is a problem. But you don’t solve it by rewriting trademark law and depriving lawful speakers of the chance to keep their identities private. This ill-conceived legislation should be stopped in its tracks.
Julius Baer Drops Case Against Wikileaks after EFF, ACLU Help Restore Wikileaks.org Domain Name
Deeplink by Matt ZimmermanFollowing a federal district court's reversal of its prior ruling that disabled one of the domain names of whistleblower site "Wikileaks," Swiss bank Julius Baer has decided that it has had enough. On Wednesday, Julius Baer filed a motion of voluntary dismissal, effectively ending the case. While the bank notes that it "may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue," that seems unlikely, at least in a U.S. court.
In early February, the bank filed suit against Wikileaks for hosting allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar.
Last week, EFF moved to intervene in the case, along with the American Civil Liberties Union, the American Civil Liberties Union Foundation of Northern California, and the Project on Government Oversight (POGO). arguing that the court's order order infringed on the First Amendment rights of Internet users who have an interest in accessing material of public concern on the site. Ruling from the bench, Judge Jeffrey White cited concerns about the First Amendment, the effectiveness of disabling the wikileaks.org domain name, and the court's own jurisdiction over the case as reasons to dissolve his previous orders. While Judge White permitted Julius Baer to proceed with its case, he suggested to the bank that it "take a deep breath" and decide whether litigation was really the right course given the cited difficulties.
We're glad to see Julius Baer abandon this ill-conceived lawsuit. The bank was never able to offer satisfactory answers as to why the case should even be heard in a U.S. court, let alone why the First Amendment rights of individuals who wanted access to other materials on the Wikileaks site should be held hostage while the bank tried (futilely) to pull down a handful of disputed documents. Julius Baer unwittingly demonstrated once again that the "Streisand effect" remains in force: attempts to censor material available on the Internet will almost invariably backfire, causing the information to be widely publicized.
ABA Quietly Considers Anti-Consumer Proposals to Impede Keyword Advertising
Deeplink by Corynne McSherryWhen you type a word like "Chevrolet" into an Internet search engine, you aren't necessarily looking for the nearest dealership. You might be looking for independent information about Chevy's business practices, quality, compliance with emissions standards, or even information about how Chevrolets match up against their competitors. One of the best ways for competitors, critics and others to get that information to you is to place ads that use Chevrolet's trademarks as keywords, so that this information pops up when you run the search. That's why EFF has worked hard to stop efforts to use trademark law to impede keyword advertising. Through lawsuits and legislation -- like a law that was proposed in Utah -- trademark owners have tried to limit consumer access to information and block the ability of critics from using keywords to advertise their point of view, stimulate debate and mobilize support.
Now there is a quiet move in the American Bar Association's Intellectual Property Section to make the legal defense of such keyword advertising more difficult. An ABA committee is currently debating four resolutions on the issue, all of which have serious flaws, at best, and anti-consumer slants, at worst. And, some members of the committee are trying to keep this discussion from public view. The full analysis by Eric Goldman and myself shows why these efforts -- not to mention the committee's attempts to prevent public scrutiny of those efforts -- are deeply misguided and could help undermine the very purpose of trademarks: to improve consumer access to accurate information about goods and services.
