San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief today urging a federal court judge to block two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication, bringing the threat of criminal sanctions for private, lawful speech.
At issue are provisions of federal law that require anyone who produces a visual depiction of sexually explicit expression to maintain extensive records -- including copies of drivers' licenses, the dates and times images were taken, and all URLs where images were posted -- and often force public disclosure of a creator's home address. Even more troubling, the regulations allow law enforcement warrantless entry into homes or offices in order to inspect the records that are supposed to be kept. While these statutes regulate the commercial pornography industry, they also likely apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging.
"The plain language of the statute subjects ordinary Americans, who are using emerging communications technologies at an ever-increasing rate, to onerous record-keeping and inspection requirements for lawful speech. They could face up to five years in prison if they don't follow the statutory requirements to the letter," said EFF Senior Staff Attorney Matt Zimmerman. "Speakers who engage in private, expressive activity protected by the First Amendment should not be at risk of criminal sanctions for violating an overbroad statute that they likely know nothing about."
A coalition of artists, producers, distributors, and educators filed suit against the provisions last year, arguing that the law censored their artistic and educational work. In its amicus brief in support of the coalition filed today, EFF asked the judge to throw out the record-keeping regulations as an unconstitutional chill on adult free expression in the digital age.
"Digital cameras, camcorders, and the Internet make it easy to create and share lawful adult material in a wide variety of ways. Thousands of ordinary Americans are doing just that, only to find themselves subject to these record-keeping and inspection requirements," said EFF Civil Liberties Director Jennifer Granick. "This just doesn't square with the Constitution."
For the full amicus brief:
http://www.eff.org/files/filenode/fsc_v_holder/EFF%20Amicus%20Brief.pdf
For more on Free Speech Coalition v. Holder:
http://www.eff.org/cases/free-speech-coalition-v-holder
Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
The Obama Administration has been slowly ramping up its attention to intellectual property issues. Over the past few months, we've seen an IP "summit" at the White House. We've seen the successful nomination of a new cabinet-level "IP Czar" position. We've seen the announcement of a new DOJ task force for IP issues. What does it all portend?
Unfortunately, many signs suggest that the administration is paying far more attention to the interests of the entertainment industry than to the public good. At the same time, there are a few positive efforts and indications, so we're holding out hope that things could improve.
The first bad omen came last December, when Vice President Biden invited the RIAA, MPAA and other representatives of the mainstream entertainment industry to a closed-door "Piracy Summit" at the White House. Although Biden's office sold the summit as "bringing together all the stakeholders" in the piracy debate, it failed to invite a single representative of the public interest or the technology industry.
One outcome previewed at the summit was the formation of a new Department Of Justice "Intellectual Property Task Force", which was formally announced in February. Unfortunately, the Department of Justice already has a history of coming down disproportionately hard on victims of the copyright conflict. And while the task force's announcement stressed that IP crime "threatens not only our public safety but also our economic wellbeing," it didn't even pay lip-service to the harms to privacy, free speech, and innovation in the industry's long war on piracy.
Later in February, the government's new IP Enforcement Coordinator (IPEC), Victoria Espinel, announced that "the Federal Government is currently undertaking a landmark effort to develop an intellectual property enforcement strategy" and asked for public input into what this strategy should look like. A major component of the request seeks information about "the costs to the
U.S. economy resulting from intellectual property violations," which in the past has mainly been expressed through skewed, erroneous accounts of the supposed effects of piracy from entertainment industry lobbyists. However, the IPEC is also demanding an unprecedented level of rigor from these studies:
Submissions directed to the economic costs of violations of intellectual property rights must clearly identify the methodology used in calculating the estimated costs and any critical assumptions relied upon, identify the source of the data on which the cost estimates are based, and provide a copy of or a citation to each such source. [Emphasis mine.]
Since some of these poorly executed studies have appeared to successfully persuade members of Congress to change copyright law only in ways that favor the entertainment industry, it's refreshing to see the IPEC pushing for greater validity. To that end, we look forward to seeing the Obama Administration publicly debunk the empty rhetoric that circulates around questions of unauthorized file sharing and its economic effects.
There are other bright points. Late last year, the Administration supported looser international copyright protections for reading materials for the blind. Limitations and exceptions to copyright are a critical "safety valve" in copyright that helps preserve free expression, access to knowledge, and other human rights, and we hope to see them defended by the Administration in other contexts as well.
While IP enforcement appears to have center stage, there are other double-standards and unintended consequences in copyright and trademark law, all of which could benefit from some attention from the White House. The orphan works conundrum remains unsolved. Copyright term and licensing issues stymie creators and archivists. The anti-circumvention provisions of the DMCA still obstruct innovators.
But will the Obama Administration and Congress choose to face these tough, important issues? At the next IP summit, will advocates for questions like these have a seat at the table? Or will the public interest side of intellectual property law and policy continue to languish unaddressed? Time will tell.
Last month, we celebrated the 20th anniversary of the founding of EFF at the DNA Lounge in San Francisco, joined by Adam Savage, the founders of EFF and dozens of other Internet luminaries. For non-local EFF supporters, we've put the gorgeous photos that John Adams and Johnny Grace captured at the event up on our Flickr page.
Don't forget to check out EFF's 20th Anniversary commemorative t-shirt and poster designed by EFF senior designer Hugh D'Andrade! These are still available in our shop and through our donation page. You can also download hi-res versions and wallpaper from our flickr page here.
Thanks to everyone who joined us or donated — and here's to another 20 years!
We often criticize DMCA takedown abuse here at EFF, but last week's Cryptome snafu highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material.
To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome refused explaining that the document was posted in order to help the public better understand Microsoft's practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the entire Cryptome website. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome.
This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome's beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn't willing to take that small risk, a whole lot of speech was temporarily disappeared.
We’ve recently seen the same scenario with music bloggers, who may have their entire sites taken down as a result of complaints about a few links to music they’re reviewing.
And sometimes it's not even enough to find a courageous hosting provider. Last year a takedown notice targeting a single site parodying the U.S. Chamber of Commerce resulted in a takedown of the websites of over 300 activist organizations hosted by MayFirst/PeopleLink. The Chamber of Commerce went "upstream," targeting one of MayFirst's upstream service providers, Hurricane Electric. When MayFirst pushed back, Hurricane shut off service, thus pulling the plug on unrelated websites, email and other online tools.
In all of these cases, copyright owners reach out to a "weak link," the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of "innocent bystander" customers.
This unfortunate outcome is particularly ironic because Congress gave service providers protections in the DMCA. Service providers who care about free speech have better options:
Customers who also care about free speech should vote with their wallets and look for providers who will commit to following these suggestions. The safe harbors were supposed to help protect free speech, and they often do—but only if copyright owners, service providers, and internet users follow their common sense as well their business sense.
San Francisco - The Electronic Frontier Foundation (EFF) submitted a petition signed by more than 7000 people to the Federal Communications Commission (FCC) today demanding that the agency close a loophole for copyright enforcement in its proposed regulations for network neutrality.
The petition is part of EFF's reply comments in the FCC's net neutrality rulemaking. The FCC's proposed rules generally prohibit ISPs from discriminating or blocking lawful content, but include a loophole for 'reasonable network management' by ISPs. The proposed rules then define 'reasonable network management" to include measures taken by ISPs to block unlawful content or transmissions. This exception would effectively permit ISPs to violate net neutrality rules and block lawful activities in the name of copyright enforcement.
"We can't afford to let lawful speech become collateral damage in Hollywood's war on copyright infringement," said EFF Senior Staff Attorney Fred von Lohmann. "Net neutrality regulations should not excuse ISPs that interfere with lawful content just because they claim they were acting as copyright cops."
EFF's original comments to the FCC, submitted in January, also question whether the FCC has the legal authority or political independence necessary to properly regulate the Internet. Additionally, EFF has called on the FCC to protect the interests of individuals who offer open WiFi Internet access to their neighbors or local communities.
"Before the ink is dry on net neutrality regulations, we already see corporate lobbyists and 'public decency' advocates pushing for loopholes," said EFF Civil Liberties Director Jennifer Granick. "A loophole like this could swallow network neutrality, with ISPs claiming copyright enforcement as a pretext for all sorts of discriminatory behavior."
For EFF's full reply comments to the FCC:
http://www.eff.org/files/filenode/nn/EFF%20NN%20reply%20comments2b.pdf
For more on net neutrality:
http://www.eff.org/issues/net-neutrality
Contacts:
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org
EFF today released Unintended Consequences: 12 Years Under the DMCA. This is the sixth update to the report, which aims to catalog all the reported instances where the DMCA's ban on tampering with DRM have been abused to stymie fair use, free speech, and competition, rather than to attack "piracy."
Congress enacted the DMCA's ban on bypassing DRM at the urging of entertainment industry lobbyists who argued that DRM backed by law would quell digital copyright infringement. Of course, 12 years later, that exactly hasn't worked out. Nor is it likely to ever work out. But lots of industries have recognized that these provisions of the DMCA are good for other things—like impeding scientific research and legitimate competition. The Unintended Consequences report collects these stories, including oldies like Lexmark's effort to block toner cartridge refilling and new cases like the lawsuit against RealDVD.
Other new additions to the report include Apple's use of the DMCA to lock iPhone owners to Apple's own App Store for software, Apple's DMCA threats against Bluwiki for hosting discussions about iPod interoperability, and Texas Instruments' use of the DMCA to threaten calculator hobbyists trying to write their own operating systems.
Although in many cases the DMCA abuser backs down or is beaten in court, the abuses and resulting chilling effect on legitimate activities continues. And even though the U.S. Copyright Office is considering proposed exemptions to the DMCA, that proceeding won't prevent more abuses in the future.
San Francisco - Twelve years after the passage of the controversial Digital Millennium Copyright Act (DMCA), the law continues to stymie fair use, free speech, scientific research, and legitimate competition. A new report from the Electronic Frontier Foundation (EFF) collects reported examples of abuses of the DMCA and the ongoing harm the law continues to inflict on consumers, scientists, and small businesses.
The U.S. Copyright Office is currently mulling proposed exemptions to the DMCA's ban on "circumventing" digital rights management (DRM) and "other technical protection measures" used to restrict access to copyrighted works. The Copyright Office is empowered to grant exemptions to the law every three years to mitigate the harms that DRM otherwise would impose on legitimate, non-infringing uses of copyrighted materials.
The triennial Copyright Office rulemaking, however, has not been enough to prevent abuses of the DMCA. EFF's report details the numerous harms stemming from the DMCA's ban on circumventing DRM, including Apple's attempts to lock down the iPhone and force users into its App Store. Also new in this year's report is the account of hobbyists threatened by Texas Instruments for blogging about potential modifications to the company's programmable graphing calculators as well as the story behind the legal attacks on Real DVD and other products that create innovative new ways for consumers to enjoy DVD content they have legitimately purchased.
"The DMCA's ban on tampering with digital locks on content is a dangerous anachronism, a holdover from a time when people thought DRM could solve all of Hollywood's problems," said EFF Senior Staff Attorney Fred von Lohmann. "The DMCA's ban on bypassing DRM has failed to stem digital copyright infringement, but it has unfortunately been repurposed as a cudgel to threaten legitimate research and competitors."
Among the DMCA exemption requests currently before the Copyright Office are three from EFF. One asks for an exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial remix videos. Another would explicitly exempt cell phone "jailbreaking," allowing iPhones and other handsets to run applications from any source. EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cells phones so they can be used with any mobile carrier. A final decision on these and other requests is expected from the Copyright Office within the next few weeks.
For "Unintended Consequences: Twelve Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-under-dmca
For more on EFF's exemption requests:
http://www.eff.org/cases/2009-dmca-rulemaking
Contact:
Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org
Pittsburgh - On Monday, March 8, at 4 p.m., board members of the Electronic Frontier Foundation (EFF) will discuss the societal impact of technology design in a panel at Carnegie Mellon University.
Technology design can maximize or decimate our basic rights to free speech, privacy, property ownership, and creative thought. The panel will discuss some good and bad design decisions through the years and the ramifications of those decisions.
Monday's panel is free and open to the public.
WHAT:
Architecture Is Policy: The Legal and Social Impact of Technical Design Decisions
WHEN:
4 p.m.
Monday, March 8
WHERE:
Newell-Simon Hall, Room 3305
Carnegie Mellon University
Pittsburgh, PA 15213
WHO:
Ed Felten (Professor of Computer Science and Public Affairs and Director of the Center for Information Technology Policy, Princeton University)
Dave Farber (Distinguished Career Professor of Computer Science and Public Policy in the School of Computer Science, Carnegie Mellon University)
Lorrie Cranor (Associate Professor of Computer Science and of Engineering and Public Policy, Director of the CyLab Usable Privacy and Security Laboratory [CUPS], Carnegie Mellon University)
John Buckman (EFF Board Chair, Serial Entrepreneur)
Cindy Cohn (EFF Legal Director, Moderator)
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
As we've pointed out repeatedly, poor design decisions in YouTube's "Content ID" system have resulted in over-blocking of videos that remix copyrighted materials. Today we got perhaps the most vivid example of the problem: the "silencing" of a lecture by Prof. Larry Lessig about the cultural importance of remix creativity. This is just the latest of many examples. We've been on YouTube's case for more than two years about this problem, and it's high time for YouTube to fix the Content ID system to respect the kinds of fair uses that are at the heart of remix creativity.
How did Prof. Lessig's video trigger the Content ID block? He included "snippets" (I use that word intentionally, as Google does in the context of its own Book Search product, to refer to small portions that should qualify as a fair use) from several remix videos. As a result, the audio track of his lecture included excerpts of several well-known songs. Apparently at least one of those songs is owned by Warner Music, which has chosen to automatically mute the audio track of any video when the Content ID system detects the presence of those songs. It's not clear which song triggered the block—the Content ID system doesn't tell you that.
Of course, in close cases, reasonable minds can differ about whether a particular use of a song qualifies as a fair use (although some cases are easy). But that's no excuse for the automated Content ID filter to block them—if a copyright owner has a good faith belief that any particular remix video crosses the line, it is free to send a formal DMCA takedown notice. Sending a notice is not hard, nor expensive, as demonstrated by the fact that copyright owners routinely send hundreds of thousands of these notices to YouTube. YouTube's Content ID system even will flag all the videos for the copyright owner's review.
But unlike the automated Content ID blocking, DMCA takedown notices at least put a human into the loop, and these humans must take fair use into account before issuing the notice. In contrast, an automated match by the Content ID system results in an automated removal, even where the copyright owner does not object to the use (and, as poorly behaved as Warner Music has been in the past, I can't imagine it really wants to censor Prof. Lessig's lecture).
Fortunately, YouTube permits users to "dispute" automated Content ID removals, and that's why Prof. Lessig's video is once again available. But that's not nearly good enough. First of all, YouTube's procedures for "removing" videos have created considerable confusion and consternation among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Second, the thousands of lawsuits brought by record labels against individuals for file-sharing has created an atmosphere of fear that makes many YouTubers hesitant to go toe-to-toe with a major record label.
There's just no excuse for the Content ID system to be blocking remix videos. There's nothing in the law that requires YouTube to do this. In fact, section 512(m)(1) of the DMCA makes it clear that service providers do not need to install filters or monitor their services at all, much less allow copyright owners to use filters to block remixes.
Nor is there any engineering reason why the system should be designed this way. The filter can fix this problem by insisting that the audio and video tracks both come from the same copyrighted work and that the entire (or almost entire) video is drawn from the same copyrighted work. Unless these conditions are met, "block" should not be an option available to copyright owners. If a copyright owner wants to take down a remix video, they should have to follow the rules Congress established in the DMCA.
This is exactly what EFF, joined by numerous other public interest groups, asked YouTube to do in 2007 in our Fair Use Principles for User Generated Content. It's a shame that YouTube, a company that has become synonymous with remix creativity, can't find the time to fix its own Content ID system to protect remixers from unnecessary censorship.
This week, an Italian magistrate convicted three Google employees for an Internet video that none of them had produced, uploaded, or even seen. The case arose from an Italian video that was uploaded in 2006 to Google Video, which showed a disabled child being bullied by other schoolchildren. An advocacy organization and the boy's father in Milan pushed for a criminal prosecution; a local prosecutor decided to pursue a case against four individual Google employees. In the decision, a defamation charge was dropped, but three of the named executives were found guilty of a charge related to Italy's privacy laws, and each sentenced to a six month suspended sentences.
We may not see the Italian decision stand for long, and cannot imagine a similar case happening in most Western countries. But it represents a growing temptation of courts and lawmakers worldwide: to find excuses to strip away the protection the law grants to Internet intermediaries. It's also an intimation of the very serious consequences to the Net and free speech if those safe harbors are weakened.
Europe has, in theory at least, at the EU level, strong protections for Internet intermediaries in its E-Commerce Directive: Article 14 of that directive provides that hosting providers are not responsible for the content they host, as long as they are not informed of its illegal character, and they act promptly when informed of it. Article 15 clarifies that hosts do not need to monitor hosted content for potentially illegal content.
This judgement guts both these principles. The court dismissed the allegation of criminal defamation but upheld a charge of illegally handling personal data on the basis that a video is personal data, and that under EU data protection law, Google needed prior authority before distributing that personal data.
This interpretation of the law means that Google is co-responsible for the legality of content containing the images of persons -- before anyone has complained about the content. That effectively means to comply with the decision, any intermediary working within Italy must now pre-screen every piece of video with anyone who appears within it, or risk prosecution. As the judgement stands, it also presents such a wide definition of personal data that it might effectively require that all hosts pre-screen all content be it video, text, audio or data.
The unconscionable fact that this prosecution is of individuals, while devastating for those involved, is only part of the problem. The whole Internet relies on the fact that third-parties can carry messages without having to self-police, interfere with those messages or take responsibility for millions of others' communications.
The Net is made of intermediaries, and attacks on the safe harbor protections for those intermediaries is under way across the world. In China, it's called ISP "self-discipline". In the United States, it's rightsholders demanding secondary or even tertiary liability for infringement by users, or loopholes in net neutrality, or attempts to weaken the protections of CDA 230. Italy may choose to unfairly victimize three American executives in this case, but the openness of the entire Internet risks becoming a victim if the safe harbors are compromised elsewhere.
In our last post, we set out some of Google's numbers for the total number of books that would fall under the amended settlement agreement. Now let’s look at how many and what sorts of rightsholders have come forward as a result of the oft-criticized notice program conducted by Google and the plaintiffs. For starters:
Number of Books Google Says are Subject to the Settlement: About 10 million
According to Rust Consulting, the company administering the notice program, 44,450 claim forms (both online and hardcopy) have been received as of February 8, plus 485 "lists" (a kind of modified claim request). The claims relate to approximately 1.13 million books and 21,829 "inserts" (i.e., things like a short story or article in an anthology). Of the 1,107,620 books claimed online, 619,531 are classified by Google as out-of-print and 488,089 are classified as in-print.
Total number of claimants: 44,450
Total books claimed: 1,125,339
Total inserts claimed: 21,829
Percentage of books claimed (online only) that Google classifies as out of print: 56%
So, of the 10 million books potentially covered by the amended settlement on Google's numbers, rightsholders have spoken up for a little more than 10%. Because there may be disagreements between the author and the publisher about who owns the rights, it is possible that some of these claims are actually competing claims for the same book.
Percentage of books claimed on Google's numbers: about 10%
As of the January 28 deadline for opting out, Rust reports receiving 6,818 requests for "exclusion" (which Rust uses here to mean simply "opting out of the settlement"). Adding that number to the 44,450 claiming responses makes a total of a little over 50,000 rightsholder responses, with about 87% choosing to participate in some form in the settlement and 13% opting out altogether. Keep in mind that those who objected to the settlement—and there were over 500 objections filed—had to stay in the settlement in order to object, so the 87% number shouldn’t be read as consisting only of those who favor the settlement.
Percentage of responding rightsholders who have opted out: 13%
Percentage of responding rightsholders who have chosen to participate in some form: 87%
The “Exhibit D” document of Rust Consulting's submission, consisting of four tables, was initially unhelpful and unenlightening, because none of the columns seemed to be properly labeled. However, upon EFF's request, Google promptly had Rust provide a clearer document, which has the missing information (Google says that the prior problem was due to scanning and that the document has not changed). Google confirmed one error in the first table: the correct number of online publisher claims should be 4,312 and 880 for agent claims.
The publisher claims account for 787,942 out of the 1,107,620 books claimed, or 71%, with an average of 895 books per claiming account. It is interesting that a relatively small number of publishers accounted for the bulk of the claimed works.
Percentage of books claimed by publishers: 71%
Percentage of books claimed by authors: 29%
At the fairness hearing, the lawyer for the Science Fiction Writers group raised concerns that publishers are claiming works that are out-of-print, which is problematic since in many instances those rights should have reverted to the authors. The attorney noted that the Google Books settlement appeared to be creating an opportunity for publishers to try to claim ongoing rights, and corresponding income, from works that they had abandoned and to which they may not have current contractual rights. This is one of many criticisms raised by author groups as well as the Department of Justice at the fairness hearing -- that the settlement rides roughshod over the contractual relationships between authors and publishers.
These numbers help clarify the picture, at least a bit. We hope Google, the plaintiffs, and Rust Consulting will provide even more numbers moving forward so that the public can continue to assess the settlement even as the Court deliberates.
Today EFF and the National Coalition Against Censorship (NCAC) wrote to YouTube, asking the video hosting giant to reconsider its removal of the work of internationally recognized video artist Amy Greenfield.
Amy Greenfield received notice from YouTube that her works, which contain some artistic nudity, did not conform with YouTube’s "community standards." Under YouTube's policies, "films and television shows may contain [full nudity]; however, videos originating from the YouTube user community must abide by the YouTube Community Guidelines and are not permitted to include such content." (emphasis in original). The Community Guidelines purport to allow nudity with “some educational, documentary and scientific content, but only if that is the sole purpose of the video and it is not gratuitously graphic,” but does not recognize the value of nudity in art.
When video artists present works that have clear artistic, political or educational merit, YouTube should allow the artist to post the material with at least the same freedom as major studio films and television. If a user community video is flagged as inappropriate, YouTube should at least have an appeals process to allow an artist to explain the artistic merit. While we understand YouTube's desire to keep pornography off its servers, it must also understand that not all nude art is pornographic.
In the wake of yesterday's fairness hearing on the Google Book Search settlement, this might be a good time, while Judge Chin is deliberating, to take a moment to update some of the numbers about the settlement. These numbers were culled from settlement documents (thanks to Prof. James Grimmelmann for much of that), Google's presentation at the fairness hearing, and congressional testimony.
[Note: these are Google's numbers and it wouldn't be surprising if others disputed them.]
First, how many books are there? Overall, Google engineer Dan Clancy said that Google's research indicates that there were over 174 million books total worldwide.
Total number of books in the world = 174m.
At the fairness hearing, however, Google's lawyer Daralyn Durie told the Court that there are approximately 42 million books total in the collections of libraries partnered in Google's digitization project.
Total number of books held by Google partner libraries = 42m.
How many of these fall under the terms of the settlement, which is limited to in-copyright books published in the U.S., Canada, U.K., Australia, and New Zealand? After subtracting public domain works (estimated at 20% by Google), excluding foreign works, and accounting for duplicate works, Google estimates that 10 million books are subject to the terms of the amended settlement.
Total number of books subject to the amended settlement = 10m.
Of this number, Google believes that half (~5 million) are in-print and half (~5 million) are out-of-print. In earlier Congressional testimony, Google estimated that no more than 20% (or ~1 million) of the out-of-print works would turn out to be true "orphan works" (i.e., works whose copyright owners could not be found).
Google's Dan Clancy estimates that Google has scanned 12 million books so far, which includes 2 million scanned through its Partner Program, another 2 million public domain works, and foreign works that are outside the amended settlement.
Some other numbers to keep in mind while pondering all of this: the Authors Guild claims a membership of over 8,500 and the Association of American Publishers claims to represent over 300 publishers, while 30,000 authors and publishers have already struck deals to be in Google Books through Google's Publisher Partner Program.
As we've explained before, a number of Hollywood movie studios have been on the war path against Redbox, the kiosk-based DVD rental operation, because Redbox offers DVD new releases for rent at 99 cents per night. Thanks to the first sale doctrine in copyright law, Redbox's business is completely legal—the company buys legitimate DVDs to stock their kiosks. Great for consumers, and a great alternative for those who might otherwise opt for an unauthorized alternative online.
But Hollywood wasn't pleased, and took a number of steps to interfere with Redbox's business, which in turn led to lawsuits. Earlier this week, Redbox and Warner Brothers settled their litigation, with Redbox promising not to offer Warner DVDs until 28 days after the DVD goes on sale. In other words, no more Warner new releases in the Redbox kiosks. Analysts predict this will be a blueprint for similar settlements with other Hollywood studios.
The Media Wonk has published a great recap of what happened, detailing how the movie studios put pressure on distributors and retailers and ultimately succeeded in subverting the first sale doctrine:
I’m assuming the studios’ were well-advised in their campaign against Redbox, and managed to strong-arm the wholesalers and big-box retailers without actually violating antitrust laws. But it’s still worth noting, I think, the extraordinary lengths to which they were willing to go to thwart the plain language and intent of an inconvenient portion of copyright law.
The First Sale Doctrine was promulgated–first by courts and later by Congress–precisely to deny publishers control over the secondary market in copies of works. It evolved to ensure that the practical application of the copyright statute would not be inconsistent with the Constitutional purpose of copyright itself: “To promote the progress of science and useful arts.” It does that by encouraging a robust and innovative market in copies, including a robust secondary market.
Through their many Redbox machinations, the studios have found a way around the plain purpose of the First Sale Doctrine by effectively (if not quite illegally) fixing the price of DVDs in the secondary market.
Over the weekend, Google announced significant changes to its new social networking service, Buzz. Responding to criticism (including EFF's), Google moved away from the system in which Buzz automatically sets you up to follow the people you email and chat with most. Instead, Google has adopted an auto-suggest model, in which you are shown the friend list with an option to de-select people before publishing the list. While a full opt-in model would be less likely to result in inadvertent disclosures of private information, this is a significant step forward.
In addition, Google said it would show current Buzz users the setup process again, giving a second chance to review and confirm the follower list "over the next couple weeks." We recommend that all current Buzz users immediately turn off the public list, and review their friend list before making it public again. (Instructions)
Google will also stop automatically connecting Picasa Web Albums and Google Reader shared items, and allow users to hide Buzz from Gmail or disable it completely.
These problems arose because Google attempted to overcome its market disadvantage in competing with Twitter and Facebook by making a secondary use of your information. Google leveraged information gathered in a popular service (Gmail) with a new service (Buzz), and set a default to sharing your email contacts to maximize uptake of the service. In the process, the privacy of Google users was overlooked and ultimately compromised.
Though Google responded quickly to these privacy concerns, they never should have happened in the first place. While Buzz previously had a lot of these privacy options available, the user interface failed to provide users with the setting users had reasonably expected. Google should follow fair information practices and make secondary uses of information only with clear, unequivocal user consent and control.
Part of the problem may have stemmed from Google's testing process. The BBC reports that Google only tested Buzz internally with its employees, omitting "extensive trials with external testers - used for many other Google services." Google employees are sophisticated power-users who will meticulously review the available settings. However, a good user interface for privacy must work for all users, and match the default settings with the expectations of the users. Only through broad based testing can Google be sure that users are giving informed consent.
Next week Google will face a federal judge and ask for approval of the Google Books settlement. EFF has raised privacy concerns, including the possibility that Google might make secondary uses of the Books information. Buzz's disastrous product launch highlights the danger posed by this possibility, and showcases the need for firm enforceable commitments to protecting user privacy.
Reports are coming in of additional privacy issues.
The Register reports that "Google Buzz is susceptible to exploits that allow an attacker to commandeer accounts and even learn where victims are located." While a security blog now reports this was fixed, Google should conduct a thorough security review to ensure that no other problems persist.
PC World notes that Google's "vanity URL" functionality presents users with an unfortunate choice: Either expose your email address to the general public, or host your profile at a monstrously long numeric URL. Google ought to provide a third, middle-of-the-road option by allowing users to select a simple and memorable URL which is not based on their email address.
Imagine you're a music journalist who maintains a blog. You've just found a great, new, virtually-unknown artist that you want to tell the world about. How can you do so, in a way that is simple and convenient for your readers, but does not place you or your blog's host at risk of being sued?
Thanks to the increasingly aggressive copyright-enforcement tactics of the music industry, this has become a startlingly complicated question with no good answer.
In the latest signal of this conundrum, at least six music blogs were deleted last week by Blogger due to copyright complaints. It's uncertain who made the accusations that lead to the deletions, but the most likely culprit is the International Federation of the Phonographic Industry (IFPI), a copyright-enforcement organization which had previously filed copright takedown notices against some of the targeted blogs.
Although the takedowns were made in the name of stopping piracy, the deleted blogs do not appear to have been hotbeds of illegal file-sharing. Indeed, some had operated for years and acquired a serious and substantial readership. Like many music blogs and magazines, they mostly posted reviews of artists, albums and concerts.
In at least one case, IFPI's accusations of copyright infringement were almost certainly incorrect. Bill Lipold, author of the deleted I Rock Cleveland, has outlined in painstaking detail the ways in which he received explicit permission to post every file on his blog, including ones which were later accused of infringement and forcibly removed. In one case, the band's publicist wrote of the takedown, "Just so you know, this is none of our doing...apparently, DMCA operate on their own set of odd rules, as they even requested that the (band's) official blog remove the song....What a headache..."
In cases like this, attacks on music blogs seem to be the latest example of the widening disconnect between the goals of the music industry's promotional wing and its enforcement wing. Smart musicians and promoters understand that the Net is a powerful promotional tool, and know that sharing an artist's music is the best way to earn new fans. The IFPI, on the other hand, writes clearly in its takedown notices that "Our top priority is to prevent the continued availability of the IFPI Represented Companies' content on the internet." We've already seen this divergence of interests play out in recent fiascos surrounding bands like OK Go and Death Cab For Cutie. And the television industry has seen similar problems in its attacks on YouTube.
In other cases, it appears that the bloggers may have posted or linked to copyrighted material without permission. But, as targeted blogger Patrick Duffey explains, it's often next to impossible to know exactly which content is being accused of infringement:
In their DMCA take down letters they never inform you what the infringing mp3’s are, forcing the writer to take down ALL the mp3’s in the offending post whether they have the permission to post them or not... If they had just included what the offending mp3’s were they could have avoided all of these headaches and bad press and we could have kept on going like any other day.
Living Ears, another targeted blog, echoes those sentiments:
One problem with these notices is that they do not mention infringing files by name. When I post the playlist from Scene Not Heard and link to a couple of tracks, if I receive a DMCA notice, how can you tell which file is to be deleted?
Targeted bloggers need to know these details, not only so that they can remove the file if it's indeed infringing, but so that they can file a DMCA counter-notice in the event that the file is not infringing.
Ordinarily, the party issueing the takedown notice would be required by US copyright law to specify which content is being accused. But, as an international organization headquartered in London, IFPI is arguing that it doesn't even need to play by the USA's rules. "We neither admit nor accept," they write, "...that Google is entitled to be served a notice in compliance with the DMCA." Translation: IFPI is essentially threatening to sue Google under some unspecified foreign law — presumably one which lacks even the modest safe-harbor provisions available in the USA. It's no wonder Google felt the need to take drastic action to avoid liability, even at the expense of the resulting headaches and bad press.
By now, the affected blogs have mostly migrated elsewhere — in most cases to software like Wordpress, deployed on smaller and less well-known hosting services. While this will buy them some time, these smaller hosting services are just as vulnerable as Google is to attacks by the IFPI and their ilk. In fact, most smaller hosts are likely to be even less helpful to bloggers than Google has been, since they tend to lack Google's legal resources and PR imperatives.
That being said, there are steps that music bloggers can take to protect themselves. Though EFF hasn't created resources specifically for music bloggers, many of the suggestions made in our Guide To YouTube Removals and Guide To Avoiding Gripes About Your Gripe (or Parody) Site will be relevant. Note especially this list of web-hosts that have been known to show some spine when faced with legal threats over their customers' content. And, of course, all current users of Blogger should make regular use of Blogger's "export" feature to back-up their work.
If this game of whack-a-mole seems familiar, that's because it is. The same copyright-enforcement machine that was originally designed to fight music piracy, having largely failed at that goal, has now been turned on music journalists, and — in some cases — musicians themselves. It's just the latest example of how legitimate speech and innovation will continue to be endangered until either Congress or the music industry takes serious steps to fix things.
ACLU National, ACLU of Wisconsin, and EFF have filed an amicus brief in the Wisconsin Supreme Court arguing that the law of that state prohibits police from installing a GPS device on you or your car without first getting a warrant from a judge. A growing number of state high courts have decided that their citizens should be protected from suspicionless GPS tracking, recognizing that uninterrupted around-the-clock surveillance is qualitatively different from ordinary police observations of a suspect. In the Wisconsin case, People v. Sveum, we ask the court to follow the example of Washington, New York, and Massachusetts and find that GPS tracking is a search that requires a warrant. EFF participated as amicus in the New York case, People v. Weaver, and is awaiting a decision under the federal Constitution in U.S. v. Jones, a GPS tracking case pending in the Court of Appeals for the District of Columbia. As more and more states find that their residents have a reasonable expectation that they will not be digitally tracked with surreptitiously installed devices, the federal courts must take note. The Fourth Amendment protects legitimate expectations of privacy.
EFF is also actively litigating several location privacy cases involving government use of cell phone tower information to track the location of mobile handsets. These cases involve the same creepy surreptitious pervasive electronic tracking as GPS tracking, but somewhat different legal issues in part because a complex statutory scheme protects data generated by cell phones. We recently argued one such case in the Third Circuit Court of Appeals. For an in depth analysis of the legal issues in that cell tracking case, see our amicus brief.
For more information, see: State v. Jackson, 150 Wash. 2d 251, 76 P.3d 217 (2003) (installation of a GPS tracking device on defendant’s car required a warrant), People v. Weaver, 12 N.Y.3d 433, 909 N.E.2d 1195 (2009) (same), and Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009) (installation and monitoring of a GPS tracking device on defendant’s minivan was a seizure).
San Francisco - What questions should consumers ask before buying a digital book or reader? Today the Electronic Frontier Foundation (EFF) published "Digital Books and Your Rights," a checklist for readers considering buying into the digital book marketplace.
Over the last few months, the universe of digital books has expanded dramatically, with products like Amazon's Kindle, Google Books, Internet Archive's Text Archive, Barnes and Noble's Nook, and Apple's upcoming iPad poised to revolutionize reading. But while this digital books revolution could make books more accessible than ever before, there are lingering questions about the future of reader privacy, consumers' rights, and potential censorship.
EFF's checklist outlines eight categories of questions readers should ask as they evaluate new digital book products and services, including:
*Does the service protect your privacy by limiting tracking of you and your reading?
*When you pay for a book, do you own the book, or do you just rent or license it?
*Is the service censorship resistant?
"As these new services roll out, we need to know if they will respect or hamper the traditional rights and expectations of readers. Physical books have many natural protections for readers, and other protections have been created over time by libraries and bookstores," said EFF Senior Staff Attorney Corynne McSherry. "These questions will help book lovers decide what they want their digital book future to look like and then vote with their feet to get to that future."
As other ebook readers and reader services develop, a federal judge is considering final approval of a settlement that would pave the way for a huge expansion of Google Books, giving Google the green light to scan and digitize millions of books and allow users to search for and read those books online. Unfortunately, Google's system monitors what books users search for, how much of the books they read, and how long they spend on various pages, and Google refuses to require a warrant before providing that information to the government. EFF Legal Director Cindy Cohn will appear before the court at a hearing in New York on February 18, representing a coalition of authors including Michael Chabon, Jonathan Lethem, and many others concerned about reader privacy.
"Our coalition is asking the court to ensure that Google's huge new digital library/bookstore maintains the strong protections for reader privacy that traditional libraries and bookstores have fought for and largely won," said Cohn.
For more information on next week's hearing, email press@eff.org.
For the full report "Digital Books and Your Rights":
https://www.eff.org/wp/digital-books-and-your-rights
For more on digital books:
http://www.eff.org/issues/digital-books
Contacts:
Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Redwood City, Calif. - On Thursday, February 18, at 9:00 a.m., the Electronic Frontier Foundation (EFF) will urge a judge in Redwood City, California, to suppress evidence illegally gathered from an iPhone.
In People v. Taylor, police in Daly City, California, seized the suspect's phone during his arrest. Hours later, investigators searched through the data on the device -- including contacts, called phone numbers, emails, text messages, Internet search history, and photos -- without a search warrant. Police later obtained a search warrant for the phone, based in part on information gathered during the initial illegal search.
In Thursday's hearing, EFF Senior Staff Attorney Marcia Hofmann will ask the court to suppress the illegally gathered evidence and quash the warrant based on that improperly collected information.
For more information on attending the hearing, email press@eff.org.
WHAT:
People v. Taylor
WHEN:
Thursday, February 18, 2010
9:00 a.m.
WHERE:
Department 2A
San Mateo County Superior Court
400 County Center
Redwood City, CA 94063
For more on this case:
http://www.eff.org/cases/people-v-taylor
Contacts:
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
Google's new social networking service, Buzz has upset a lot of people who have inadvertently posted the list of the people they email and chat with most frequently on their profile. If you took the default options and didn't opt-out or edit this list during profile creation, the list becomes part of your profile. Since who you email with frequently can often be private information (reporters and sources, doctors and patients, former significant others, etc), making this list public can create serious problems.
If you're going to use Google Buzz, we recommend that you opt-out during profile creation. If you have already created a profile, change it to private immediately. Then go through the suggested list, and edit it as appropriate before making it public again. PC World has a helpful privacy checklist to help users understand the privacy implications of Google Buzz options.
Google has attempted to address some of these issues, making it easier to block people and hide the friend list. The underlying issue is that your email and chat contacts are not necessarily people you want to advertise as friends via a public social network. Since Google's competitors make it hard to transfer list of social contacts to new services, Google attempted to jump start Buzz with lists drawn from its successful Gmail and Gchat services. While this may help Buzz grow and save users the time to type in all their contacts, it also has an inherent danger of inadvertent disclosure of private information. Google could significantly reduce this problem simply by making the list private by default, so users could opt-in after reviewing the suggested list.
Google might also consider allowing those who agreed to join Google Buzz without understanding its implications to opt-out fully. Currently, "turning off" Google Buzz merely suspends the viewing and public broadcasting of messages until you might want to re-connect your private email world and the public space again. Some Gmail users would prefer that those worlds stay strongly unconnected. They do not want a list of potential "followers" to gather, awaiting the moment that a user mistake or poor interface design inadvertently reveals private data to the world once again. Google is apparently considering separating Buzz from Gmail.
