Tonight EFF Legal Director Cindy Cohn will be a guest on The Colbert Report on Comedy Central! The Colbert Report airs at 11:30pm ET. If you miss it, check back here for the video tomorrow!
Newark, New Jersey - The Electronic Frontier Foundation (EFF) and a coalition of academics and public policy groups are urging a federal judge to dismiss a criminal indictment that could give websites extraordinary power to dictate what behavior becomes a computer crime.
The four defendants in this case are the operators of Wiseguys Tickets, Inc., a ticket-reselling service. In its indictment, the government claims the four purchased tickets from Ticketmaster by automated means, violating Ticketmaster's terms of service and therefore the Computer Fraud and Abuse Act (CFAA). In an amicus brief filed today, EFF argues that this prosecution expands the scope of the CFAA beyond what Congress intended, grounding criminal liability in whatever arbitrary terms of service that websites decide to impose on users.
"Under the government's theory, anyone who disregards -- or doesn't read -- the terms of service on any website could face computer crime charges," said EFF Civil Liberties Director Jennifer Granick. "That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails."
The government has suggested that this criminal prosecution is only about protecting consumers' fair access to event tickets. However, Ticketmaster itself has a financial interest in the ticket-reselling business and stands to benefit substantially from putting competitors out of business.
"The CFAA is aimed at blocking trespass and theft, not quashing innovation. Yet under the government's theory, websites could put the power of criminal law behind their own terms of service to create severe obstacles for their competitors," said EFF Senior Staff Attorney Marcia Hofmann. "The government has overstepped here, and we're asking the judge to dismiss this indictment."
EFF's amicus brief was also signed by the Center for Democracy and Technology (CDT), the Association of Criminal Defense Attorneys of New Jersey, and law professors Gabriel "Jack" Chin, Eric Goldman, Michael Risch, Ted Sampsell-Jones, and Robert Weisberg.
For the full amicus brief:
http://www.eff.org/files/filenode/us_v_lowson/LowsonAmicusBriefFinal.pdf
For more on this case:
http://www.eff.org/deeplinks/2010/07/cfaa-prosecution-wiseguys-not-so-sm...
Contacts:
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
In the latest battle to protect users from punishment for violating website terms of use, EFF filed a brief today in U.S. v. Lowson, again arguing that public websites can not decide who is and is not a criminal.
In this federal prosecution in New Jersey, the government charged the operators of Wiseguys Tickets, Inc. with violating Ticketmaster's terms of service, and therefore the Computer Fraud and Abuse Act, by using bots to purchase event tickets to resell them.
The government couldn't charge the men with any scalping offense because ticket resale is not a crime. And while the government has suggested that this criminal prosecution is only about protecting consumers' fair access to event tickets, Ticketmaster and other online ticket vendors are hardly models for consumer protection. Ticketmaster itself has a financial interest in in the ticket-reselling business, and stands to benefit substantially from putting competitors out of business. Along with the Association of Criminal Defense Attorneys of New Jersey, the Center for Democracy and Technology and several law professors, we are asking the judge to dismiss the indictment.
Using criminal law to enforce private website operators' terms of use puts immense coercive power behind arbitrary and self-serving rules. In this case, for example, fans may hate Wiseguys for snapping up good tickets only to sell them at a higher price, but they also hate Ticketmaster for selling them paperless tickets that can not be resold, gifted or transferred, and for its monopolistic control and pricing strategy in both the primary and resale market for tickets (through its TicketsNow service).
Legislators agrees with consumers that the ticket market is broken; Congress has considered at least two laws to try to fix the problem, and several states have scalping regulations. But neither the federal government nor any state has outlawed purchase and resale of tickets. That's because the problem is complicated, and doing things Ticketmaster's way is not going to fix what ails music and sports fans. Yet giving Ticketmaster complete control over purchase and resale is what this prosecution is about. That's why EFF weighed in here, even though we know that many of our fans are music fans too, and might not like the defendants.
This prosecution has ramifications far beyond the ticket market. For example, the same legal theory the government is pushing here has been used to attack anonymity, pseudonymity, data portability and other consumer rights. For example, in United States v. Drew, a woman was charged with violating the federal computer crime law for creating a false profile, which she then used to communicate inappropriately with a teenager who eventually committed suicide. EFF filed an amicus brief in that case, and the charges were eventually dismissed.
We also defended Boston College computer science student Riccardo Calixte, whose computers, cellphone and iPod were seized by local police who claimed that he violated criminal law by giving a fake name on his Yahoo account profile. A justice of the Massachusetts Supreme Judicial Court ordered police to return the property after finding there was no probable cause to search the room in the first place.
Just two weeks ago we filed an amicus brief in Facebook v. Power Ventures. There, Facebook makes basically the same claim that the government makes in the Wiseguys case: because Facebook's terms of service ban users from accessing their information through "automated means", aggregation tools violate the criminal law.
We will continue watching and weighing in on these cases, as criminalizing terms of service violations has severe ramifications for free speech, innovation, and other digital freedoms.
This week EFF joined the Progress & Freedom Foundation and the Center for Democracy and Technology in comments to the Federal Trade Commission (FTC) about the Children's Online Privacy Protection Act (COPPA), urging the FTC not to turn the law into an age-verification mandate for the Internet.
Under COPPA, most websites that are "directed to" kids have to get parental consent before anyone under 13 can use them. But if a site is a general audience site -- i.e. not "directed to" kids -- then there's no duty to obtain parental consent from anyone unless/until the site has actual knowledge that the person is under 13. Now, FTC and Congress are considering expanding the statute to cover teenagers, as well. But these changes would have wide-ranging ramifications for free speech, privacy, and anonymity online.
While a site for pre-teens is likely to have content aimed squarely at that age group, many older teens use the same use Internet services that adults do. If a site with a mixed-age user base is liable for letting kids use its services without a parents' permission, then it will likely set up elaborate age-verification for everyone. Of course, the more information a website collects, the more chances there are for it to get into the hands of a marketing company, a hacker, or someone who has filed a subpoena for it. Also, it makes it much harder to exercise your right be anonymous on the Internet. Another important factor to consider is the free speech rights of older teenagers. At that age, there are a lot of ideas and information that they want to explore that they might not tell their parents about -- for example, they might have questions about sexual health that they are too embarrassed to ask adults about.
Expanding the age-range for COPPA could drastically change the way everyone uses the Internet -- not just teenagers. We hope the FTC considers these important issues, and does not turn COPPA into a sweeping age-verification mandate.
Continuing its efforts to seek judicial review of AT&T's involvement in the National Security Agency’s warrantless wiretapping of millions of Americans, EFF has filed the final brief in the 9th Circuit Court of Appeals challenging the retroactive immunity provision of the FISA Amendments Act.
The brief explains the chief constitutional problem with the law: Congress improperly gave the Attorney General the ability to selectively repeal laws passed to protect telecommunications customers from surveillance, as well as removing the protection of the Constitution from their communications and communications records. EFF filed the brief in conjunction with the ACLU offices in California and Illinois and it was filed on behalf of the 32 pending lawsuits against various telecommunications companies allegedly involved in the spying. The next step will be for the court to schedule an oral argument, likely sometime in the next year.
While the specific legal arguments in the brief are somewhat technical, the basic observation is not: under our Constitution, it is Congress that must make and repeal the laws, and it cannot outsource that duty to the Attorney General. Yet the immunity law does just that, allowing the Attorney General to selectively repeal the strong privacy protections Congress created for Americans in FISA, the Electronic Communications Privacy Act and the Wiretap Act. The Constitution does not allow Congress to delegate that power, nor does it allow Congress or the Attorney General to deprive plaintiffs of their Fourth Amendment rights.
Congress did a great disservice to the American people in passing the retroactive immunity. The Obama Administration has shamefully defended the law, taking the position that even your most basic Constitutional rights to be free from unreasonable search and seizure of your private telephone calls and Internet communications can be discarded by the Attorney General. EFF will continue its fight to defeat this unconstitutional immunity law and stop the spying.
Here are the key briefs filed the appeal:
Opening Brief
Opposing brief from the government
Opposing brief from the telcos
Reply brief
Written Declaration 12 asks EU negotiators to ensure that ACTA respects European citizens' fundamental rights to freedom of expression and privacy, and opposes provisions that would encourage Internet intermediaries to engage in surveillance or filtering of all Internet users' communications for potential copyright-infringing material. If 369 members of the European Parliament sign this declaration before July 8, it will become the official opinion of the European Parliament, and send a strong message to the EU ACTA negotiators. Around 253 MEPs have signed, but 116 MEP signatures are still needed — particularly from MEPs in Germany, the U.K., Italy and Poland.
With the latest round of ACTA negotiations having just wrapped up in Switzerland, and only one more round likely to take place, now is the time to ask your MEPs to sign Written Declaration 12 and ensure that ACTA protects the fundamental rights of all citizens and the open Internet. Please write and call the Strasbourg offices of Members of Parliament who have not yet signed before July 8. The list of Members who have not yet signed and require particular attention is here.
There is a narrow window of opportunity for MEPs to take a stand against ACTA — it is only during the Strasbourg plenary session of July 5-8 that MEPs will have an opportunity to sign Written Declaration 12 at the declarations table. It is crucial that MEPs understand the importance of signing Written Declaration 12 before moving on to the plenary session.
The competition was stiff and the battle for supremacy in any hacker arena is hard fought, yet one person emerged victorious. Congratulations to First Place winner Shawn Merdinger! Shawn and company raised $2,560 for EFF! He will receive the grand prize including two Defcon 18 Human badges, a room at the Riviera Hotel, two tickets to the Vegas 2.0 Party at the Top of the Riv, two tickets to the iSEC Partners Party, and two Ninja Networks Party badges!
Cheers to Second Place winner Art Conklin who raised $2,100! Art will receive two Defcon 18 Human badges, two tickets to the iSEC Partners Party, and two tickets to the Vegas 2.0 Party!
Beating out the competition and making it to Third Place with $1,040, team Holy Handgrenades will receive one Defcon 18 Human badge, one ticket to the iSEC Partners Party, and one ticket to the Vegas 2.0 Party. These top three winners will also receive an EFF Swag Super Pack!
Buck up, brothers and sisters! Just because you didn't make it to the top three doesn't mean you have to walk away empty-handed - not by a long shot! EFF is awarding a limited edition Defcon 18 "Things to Hack" t-shirt to ALL fundraising captains who raised more than $200! All prize winners will be contacted via email.
Thank you to all of the contestants and supporters for raising $9,746 for EFF! Your support makes a meaningful difference in EFF's tireless efforts to defend our civil liberties. EFF relies on your help to continue the fight. Let's keep it up!
Thanks to our Defcon 18 Getaway Contest Prize Donors:
Thanks to our Defcon 18 Getaway Contest Sponsors for their crucial support:
Now on to Sin City!
Thousands of ISP subscribers targeted in mass copyright infringement suits will have a better shot at defending themselves as a result of a hearing held today in Washington, D.C. EFF appeared at a hearing as a friend of the court, arguing that the suits improperly lump thousands of defendants together, a shortcut that deprives the defendants of fair access to individual justice.
The brainchild of a Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG), these "John Doe" lawsuits were filed on behalf of seven filmmakers and implicate well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." Time Warner Cable moved to quash subpoenas issued in two of the suits that sought the identities of the Doe defendants, and EFF, the ACLU and Public Citizen filed an amicus brief in support of the motion. EFF was invited to appear at the hearing, and told the judge that USCG did not offer enough evidence of a relationship between the defendants to justify suing them together, and that the evidence that the plaintiffs themselves submitted suggested the court did not have jurisdiction for people who are located across the country. Indeed, TWC noted that its records showed it had no subscribers in the District of Columbia.
During the hearing, Judge Rosemary M. Collyer said that while the plaintiffs had a right to pursue legitimate claims, she was also concerned that the defendants’ interests be protected as well, and that the defendants might not have a fair opportunity to raise legal objections. As a result, Judge Collyer ordered the plaintiffs, TWC and amici to work together to draft a notice that could be sent to subscribers whose information is sought. The notice is intended to help educate the defendants about the case and their legal options, such as the option to challenge jurisdiction.
EFF and its co-amici had urged the court to go a good deal further, because we believe the posture of these cases violated fundamental principles of fairness. However, we applaud the court’s effort to protect the defendants’ interests and, based on today’s hearing, we are hopeful that Judge Collyer will continue to seek to make these cases as fairer for the thousands of Doe defendants caught in the USCG dragnet.
The stakes are high for anyone identified in these cases. USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for $1,500 - $2,500 per person.
Join the Electronic Frontier Foundation and the Cartoon Art Museum for a special evening with Nina Paley as we screen her award-winning animated feature film "Sita Sings the Blues," described by the creator as "the greatest breakup story ever told." Paley animated and produced the film single-handedly over the course of five years on a home computer, and will be on hand to take filmgoers behind the scenes.
The benefit screening will take place at the Delancey Street Foundation Screening Room at 600 The Embarcadero, San Francisco, CA 94107 on Tuesday, July 20, 2010. Doors open at 6:30 PM. Film begins at 7 PM. Advance tickets may be purchased online for $25 at http://action.eff.org/ninapaley, or for $30 at the door the night of the screening. No food or drink is permitted in the screening room.
A 2006 Guggenheim Fellow, Nina will also screen three of her Minute Memes, a series of animated shorts about intellectual freedom, including the premiere of a new cartoon created by Nina especially for the Electronic Frontier Foundation.
Nina Paley is a longtime veteran of syndicated comic strips, creating Fluff (Universal Press Syndicate), The Hots (King Features), and her own alternative weekly "Nina's Adventures." In 1998, she began making independent animated festival films, including the controversial yet popular environmental short, "The Stork."
"Sita Sings the Blues" has screened in over 150 film festivals and won over 35 international awards including the Annecy Grand Crystal, The IFFLA Grand Jury Prize, and a Gotham Award. Nina's adventures in our broken copyright system led her to copyLeft her film, and join QuestionCopyright.org as Artist-in-Residence. She is now re-releasing all her comics under a Creative Commons Share-Alike license.
Event admission is $25 in advance and $30 at the door.
Purchase your tickets today!
About the Cartoon Art Museum
Founded in 1984, the Cartoon Art Museum is the only museum in the western United States dedicated to cartoons and comics. The Museum was started by a group of cartoonists and collectors who wanted to share their appreciation of this unique art form with the rest of the world. The Museum is dedicated to the collection, preservation, study and exhibition of original cartoon art in all forms to benefit historians, cartoonists, journalists, artists, collectors and the general public.
Ending months of anticipation, yesterday the U.S. Supreme Court finally issued a ruling in Bilski v. Kappos, a business method patent case that, many hoped, would give the Court an opportunity to sharply limit these much maligned patents, or at least offer clear guidance on how business method patents are to be judged in the future. Unfortunately, the Court did neither one.
By way of background, Bernard Bilski and Rand Warsaw applied for a patent on methods for hedging risks for commodities trading. The Patent Office rejected their patent application as covering an abstract idea not eligible for patent protection, under § 101 of the Patent Act. Bilski appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC). The CAFC affirmed the Patent Office’s rejection of the patent application. The CAFC adopted a “machine-or-transformation test” to judge patentability: a patent applicant “may show that a process claim satisfies § 101 either by showing that his claim is tied to a particular machine, or by showing that his claim transforms an article.”
Bilski then appealed to the Supreme Court. EFF joined an amicus brief arguing that patents should only be granted for technological processes. Such technological processes advance the development, understanding, or application of a machine, manufacture, or composition of matter.
The Supreme Court affirmed the CAFC’s rejection of Bilski’s patent application, but with different reasoning. The Court merely agreed that Bilski sought to patent an abstract idea, and held that such abstract ideas were unpatentable.
A majority opinion authored by Justice Kennedy agreed that the Federal Circuit’s “machine-or-transformation” test at least “is a useful and important clue, an investigative tool,” for patentability, but not the sole or exclusive test. The five-justice majority opinion also rejected a rule that all business methods are unpatentable. Four justices would have held that methods of doing business are unpatentable (Justices Stevens, Ginsburg, Breyer and Sotomayor).
By watering down the CAFC’s “machine-or-transformation” test, the Supreme Court regrettably failed to provide guidance in the future about business method patents. For example, suppose a patent claim is not clearly unpatentable as just an abstract idea, but it does fail the now-optional “machine-or-transformation” test. When will such a claim be patentable? The Court did not answer that question, or provide details about how to apply its “abstract idea” test.
In short, the ruling has done little to clean up the mess the CAFC helped created in 1998, when it decided State Street Bank & Trust Co. v. Signature Financial Group, and opened the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results had been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even a “system for toilet reservations.” In its Bilski opinion, the CAFC tried to fix the problem by effectively overruling State Street. Yesterday’s ruling eroded the CAFC’s limits on process patents, and thus missed an opportunity to fix some of the problems with those patents.
Michael Barclay is an EFF Fellow.
With less than two days left, the Defcon 18 Getaway Contest has raised over $5,000 to help EFF protect digital civil liberties! But it's not over yet. Contestants have until 11:59:59 PM Pacific Daylight Time on Wednesday, June 30, 2010 to raise as much as they can through their referral links and compete for our amazing prizes!
What are the current standings you ask? In the lead is online freedom lover Art Conklin with an impressive $1,430. The next contender is Holy Handgrenades with $850! Nodes holds steady at $500, with Nat Mokry edging closer and closer with $425! Special thanks to the honorary Ninja Networks and Friends team for being one of our contest sponsors and raising $1,380. (Note that the Ninja Networks and Friends team is not eligible to win.)
Register Today
In addition to the three top prize packages, EFF will award a limited edition Defcon 18 "Things to Hack" t-shirt to ALL fundraising captains who raise more than $200! This is hands-down one of our coolest shirts and it's an exclusive opportunity for contestants only. This shirt will not be available to the general public until Defcon 18 in Las Vegas, and it will not be available as a standard online member t-shirt!
The Grand Prize includes:
~ two Defcon 18 Human badges;
~ a standard room at the Riviera Hotel for the nights of July 29-31;
~ two tickets to the Vegas 2.0 Party at the Top of the Riv on July 29;
~ two tickets to the iSEC Partners Party (date and location TBD); and
~ two badges to the Ninja Networks Party, location TBD, on July 31
The second place winner will receive two Defcon 18 Human badges, two tickets to the iSEC Partners Party, and two tickets to the Vegas 2.0 Party; the third place winner will receive one Defcon 18 Human badge, one ticket to the iSEC Partners Party, and one ticket to the Vegas 2.0 Party. Those top three winners will receive an EFF Swag Super Pack, including EFF stickers, hats, posters, and more. It's almost yours!
Check Official Rules for full details. See you in Vegas!
Thanks to our Defcon 18 Getaway Contest sponsors:
Yet another country has decided to shut down key parts the Internet. Kathleen Reen at Internews reports that, as of this past Thursday, the Afghan Ministry of Communications mandated that all Internet Service Providers (ISPs) in Afghanistan filter websites falling under the following categories:
Reen reports countrywide blockages of Facebook, Gmail, YouTube, and Twitter. The Afghan Wireless Communication Company (AWCC), one of Afghanistan’s two largest telecommunication companies, is referring people with questions to the Ministry of Communications.
This follows on the heels of reports earlier this week of extensive new Internet censorship in Pakistan and Turkey. Yesterday, Pakistan announced that it will block links to content on Yahoo, Google, MSN, Hotmail, YouTube, Amazon, and Bing — and will completely block 17 other sites — that it deems anti-Islamic. Also this week, Turkey, which has banned more Internet sites than any other country in Europe, started completely blocking YouTube and thousands of other sites, including proxy servers that Turkish citizens were using to circumvent the bans.
EFF will continue to monitor these events. For some ideas on ways to speak freely without falling victim to authoritarian surveillance and censorship, and ways for the rest of us to help support the worldwide community, check out EFF's Surveillance Self Defense International.
In Henley v. DeVore, a federal court recently held that senatorial candidate Charles DeVore’s two political advertisements featuring the songs "The Hope of November" and "All She Wants to Do Is Tax" infringed Don Henley’s "The Boys of Summer" and "All She Wants to Do Is Dance," ruling against DeVore’s fair use defense.
The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?
The trouble is the misguided way that some courts have distinguished "parody” from “satire” in when measuring fair use. "Parody," in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously ">sent-up Roy Orbison’s “ ">Pretty Woman," the Supreme Court found that the use was permitted. A "satire," in contrast, involves using a work to comment on something other than the work itself.
Some courts have drawn the conclusion that "satires" are disfavored under the fair use doctrine. That’s the mistake the court made in Henley v. DeVore. The court determined that "November" was mostly a satire (with a dash of parody), and that "Tax" was a satire through and through. According to the court, if DeVore wanted to use Henley’s songs, he had to be making fun of Henley, not other politicians.
From a First Amendment point of view, this is a bizarre way to address political speech. For the court, the political purpose was a strike against fair use, because the court considered the videos to be a commercial use, seeking "publicity and campaign donations." In contrast, the Supreme Court has recognized that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." In contexts other than copyright, a law blocking this kind of speech would have to meet the strictest First Amendment scrutiny.
So what about fair use, which is supposed to serve as a proxy for First Amendment concerns? Here, the court appears to have misunderstood the potential for market harm that is a critical part of the fair use test. The test should be informed by the purposes of copyright—ensuring that creators have adequate incentives to create—and the importance of the First Amendment.
Can anyone say that musicians like Don Henley would give up on song-writing if they knew that politicians could use their works in satires? Obviously, no one shopping for "The Boys of Summer" would say, "Hey, you know what, I’ll just watch that DeVore ad again instead." But the court insisted DeVore prove the negative, and show that the videos would not harm the potential licensing market for Henley's songs. The court was apparently concerned that "licensees and advertisers do not like to use songs that are already associated with a particular product or cause."
Under that view, however, few satires will ever pass fair use muster. That would inflict far more harm on future creators than DeVore did on Henley’s works. Satire is an art form that has enriched the political process since time immemorial. In the fourth century BC, Aristophanes, a comic playwright in ancient Athens, routinely skewered politicians and influenced this early democracy. Satire has continued to play a vital role in democracies through today.
Satire is most effective when can draw from the well of society’s shared experiences, using common cultural references to leverage the commentary and reach a wider audience. It can take a known quantity, and add new meaning and message – classic characteristics of a fair use.
Fortunately, courts have increasingly begun to understand that fair use can and should apply to transformative satires. So although the judge in Henley v. DeVore got it wrong, other courts will have a chance to recognize the value of satire and fair use.
Today Judge Louis Stanton of the federal court in the Southern District of New York granted YouTube's Motion for Summary Judgment in the Viacom v. YouTube litigation, rejecting the effort by Viacom and other copyright owners to hold YouTube responsible for infringing material uploaded by a tiny minority of YouTube users. EFF and a coalition of public interest and industry groups had filed an amicus brief supporting YouTube in the case.
The ruling is the latest in a series of court rulings upholding the Digital Millennium Copyright Act (DMCA) safe harbors against the persistent attacks of the entertainment industry. YouTube and all other "user-generated content" sites rely on these safe harbors to shield themselves from copyright infringement liability based on the activities of their millions of users. In this case, the plaintiffs argued that because YouTube had general knowledge that infringing videos were available on the service, it should be stripped of the safe harbor protections (of course, since every public hosting service knows that some users will infringe, that would make the DMCA safe harbors meaningless). The court flatly rejected this view:
[I]f a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements.
Without the DMCA safe harbors, sites like YouTube, eBay, Blogger, Wikipedia, and Flickr simply wouldn't exist. Where online platforms for free expression are concerned, it's unavoidable that some users will (knowingly or unknowingly) upload infringing material. The DMCA safe harbors give service providers like YouTube a strong incentive to remove content upon receipt of a takedown notice (Viacom sent 100,000 notices to YouTube in one day; virtually all the videos were gone by the next business day). In exchange, those service providers are shielded from copyright infringement liability.
So today's ruling, while a big win for YouTube, is hardly groundbreaking. It simply reconfirms what lawyers for Internet companies have been telling their clients for years, based on the plain language of the DMCA safe harbors. Of course, the fight is hardly over—Viacom has already vowed to appeal. Moreover, you can be sure that reversing this ruling and re-writing the DMCA safe harbors will be high on Hollywood's list of items for the Obama Administration's "comprehensive review" of copyright law, announced just yesterday.
UPDATE: Prof. Eric Goldman's excellent blog coverage provides more detail on the legal nuances of the ruling.
With the new iPhone 4 hitting stores this week, it seems like a good time to take a look at the impact Apple's business model has had on the stuff EFF cares about most – innovation and your digital rights and expectations.
But first, a little historical perspective. From our earliest days, EFF has been concerned about the ecosystem that exists around communications technologies. We used to refer to this work as our Open Platform Proposal, and we've spent the last 20 years fighting initiatives by governments and private companies that would have damaged the end-to-end interoperability of the Internet and interfered with innovation, free expression and the fundamental freedom to tinker.
The principle is simple: just as you get to choose whatever after-market modification you want to make to your car, whatever disk drive you want to add to your mainframe, and whatever third party add-on you want for your software, you should be able to choose the apps and hardware you want for your iPhone. You should be able to choose your network provider. And you should be able to leave the walled garden and continue to use your device after you've moved on.
This is about end-user choice, and Apple doesn't seem to believe you deserve any. Through its control over the iPhone's software and its mandatory approval process, Apple is pushing the idea that a manufacturer should be able to dictate how things can interoperate with a product at every layer – from the software, applications, and services that can be developed and sold, to the consumer's use of the device, to the other devices that can physically plug into it.
The consequences of this approach are all too clear. Consider these examples:
These are exactly the kinds of moves that we generally trust customer choice to solve – if you could get your apps from other stores, then Apple's censorship and anti-competitive moves would be much less problematic. Apple claims it needs to build a walled garden to protect users. From where we’re sitting, however, the walled garden looks very much like an effort to control the user and re-set traditional expectations about what you can do with the products you buy.
As Jason Snell put it over at MacWorld, Apple should offer iPad and iPhone owners "an option that lets you install Apps from 'unknown sources.'” Think of it as a "freedom of choice" button, for those who elect to leave the "safety" of Apple's walled garden of pre-approved apps.
Apple's certainly not the only company trying to control your user experience. We're involved in a lawsuit right now where Facebook has sued a company for creating an app that enables end-users to log into their multiple social networking accounts and aggregate messages, friend lists, and other data. Microsoft's expulsion of users from Xbox Live for altering their consoles is another example. There is a troubling trend of companies cutting off their customers when they learn that the customers have tried to control, without company permission, some aspect of the hardware or software they purchased.
To quote our dear friend Cory Doctorow, "If someone takes something that belongs to you and puts a lock on it that you don't have a key for, that lock isn't in your best interests." It’s abundantly clear that Apple is no exception to this rule. If Apple and its fellow travelers truly care about protecting the user experience – in the long term as well as the short term – they should abandon the lock-down mentality and support your right to control your own devices. They should support the interoperability that has fostered consumer choice and the rapid growth of new technologies. They should give up the keys to the garden.
Yesterday, the Obama Administration's Intellectual Property Enforcement Coordinator (IPEC), Victoria Espinel, released the "Joint Strategic Plan on Intellectual Property Enforcement" that Congress ordered up when it created the IPEC position. The plan lays out 33 "enforcement action items" grouped in 6 categories, which are helpfully summarized in a two-page chart. The plan is the result of a months-long public process in which EFF submitted comments.
Overall, the plan is chiefly about what the federal government can do to better coordinate its own enforcement efforts over a whole host of areas, such as blocking trafficking in counterfeit medicines, rooting out infringing software among federal contractors, and improving communication between federal and state enforcement agencies. Many of these efforts are laudable, aimed at increasing the efficiency and transparency of our government agencies. And the plan explicitly recognizes the importance of fair use and balance in the U.S. legal system.
With respect to the specific action items, TechDirt has done a nice job summarizing some of the more controversial recommendations. The plan embraces ACTA, which may be troubling depending on whether that proposed agreement is revised to "ditch the crazy stuff." It also calls for the feds to continue "facilitating cooperation" among "the business community to reduce Internet piracy." And there is quite a bit of emphasis on enforcement against "foreign pirate websites," without much specificity about what, exactly, "enforcement" might mean in this context.
But from EFF's perspective, the most important aspect of the plan is the one that has just begun: a 120-day "comprehensive review of existing intellectual property laws to determine needed legislative changes."
The IPEC will initiate and coordinate a process, working with Federal agencies, to review existing laws—whether they impose criminal and/or civil liability—to ensure that they are effectively reaching the appropriate range of infringing conduct, including any problems or gaps in scope due to changes in technologies used by infringers. ... The initial review process will conclude within 120 days from the date of the submission of this Joint Strategic Plan to Congress. The Administration, coordinated through the IPEC, will recommend to Congress any proposed legislative changes resulting from this review process.
This is the action item to watch. Remember, the last time the feds did a "comprehensive review" of intellectual property, we got the infamous 1995 IITF "White Paper," the document that was the genesis of the anti-circumvention provisions of the DMCA. Let's hope the IPEC "review" yields something more positive.
As we now know, the Anti-Counterfeiting Trade Agreement — allegedly conceived to reduce the flow of fake physical goods across borders — could cut people off of the Internet, turn Internet intermediaries into copyright cops, and create a global framework that puts severe restrictions on innovation.
With the next round of high level negotiations taking place in less than a week, now is a great time to remind negotiators that ACTA must safeguard the fundamental rights of all citizens and not impede Internet innovation.
To that end, a coalition of scholars and public interest organizations have drafted a communiqué. We encourage everyone who cares about digital civil liberties and the future of the free and open Internet to join EFF in signing it. The communiqué argues against the dangerous policies in ACTA — including policies that could require Internet service providers to disconnect individuals accused of repeated copyright infringement, prohibit reform of the Digital Millennium Copyright Act (DMCA), and make unbalanced amplifications to intellectual property enforcement worldwide.
The final version of the communiqué will be released to the public tomorrow morning (June 23). Endorsements will be accepted Sign the communiqué now!
UPDATE: Public Knowledge has issued an action alert, inviting users to send a wake-up call to the Administration about the dangerous policies in ACTA. Visit Public Knowledge and make your voice heard!
Can public websites decide who is and is not a criminal through their terms of service? A brief EFF filed yesterday argues no.
The amicus brief is a follow-up to one we filed last month in Facebook v. Power Ventures. Facebook claims that Power breaks California criminal law by offering users a tool that aggregates their own information across several social networking sites. For some, it may be a useful way to access various social network information through one interface. The tool also makes it easier for users to export their data out of Facebook. In its suit against Power Ventures, Facebook claims that the tool violates criminal law because Facebook's terms of service ban users from accessing their information through "automated means."
This is not an esoteric business issue, because the legal theories Facebook is pushing forward would make it a crime not to comply with terms of service. People have already faced criminal charges for violating a site's terms of use policy. For example, in United States v. Lori Drew, a woman was charged with violating the federal computer crime law for creating a false profile that was used to communicate inappropriately with a teenager who eventually committed suicide. EFF filed an amicus brief in that case arguing that terms of service do not define criminal behavior, and the charges were eventually dismissed. We also defended Boston College computer science student Riccardo Calixte, whose computers, cellphone and iPod were seized by local police who claimed that he violated criminal law by giving a fake name on his Yahoo account profile. A justice of the Massachusetts Supreme Judicial Court ordered police to return the property after finding there was no probable cause to search the room in the first place.
Using criminal law to enforce private website operators' terms of use puts immense coercive power behind measures that may be contrary to the interests of consumers and the public. EFF believes that users have the right to choose how they access their own data, and that services like Power's give users more options. So long as the add-on service does not access off-limits information and is not harmful to server functionality, authorized users who choose add-on technologies like Power’s commit no crime. Frighteningly, under Facebook's theory, millions of Californians who disregard or don't read terms of service on the websites they visit would risk criminal liability.
Another wrinkle in the case is Facebook's attempt to interfere with uses of the Power service through IP address blocking. In response to the block, Power simply changed its IP address so it could continue to provide its service. The IP address blocking used by Facebook was a crude attempt to control the means by which authorized users could access the website; it was not aimed at distinguishing between authorized and unauthorized users. Yet, remarkably, Facebook claims that Power's IP address change is also a violation of the law. Indeed, Facebook's claimed prohibition against "automated means" of access is so broad that it could be read to prevent any automatic process for presenting your credentials -- even the "remember my password" functions in web browsers.
As social networking increases in popularity, it's important that users are able to preserve their rights when using these services, including the right to choose competitive services and to take their information and leave. That's why we've developed a Bill of Rights for Social Nework users. Users deserve to maintain control of their information without facing criminal threats.
San Francisco - The Electronic Frontier Foundation (EFF), the Citizen Media Law Project (CMLP), and Public Citizen Monday urged the U.S. Court of Appeals for the Second Circuit to consider the critical First Amendment questions at issue in a case asserting "hot news misappropriation" -- a doctrine that a federal court used to put time limit restrictions on the reporting of facts.
The defendant in the case, TheFlyOnTheWall.com, had gathered stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley, and Lehman Brothers and reported them on its website. The firms sued TheFlyOnTheWall.com, claiming that the information was "hot news" and the website was free-riding on the firms' work in creating the recommendations. A federal court agreed with the investment banks and ordered TheFlyOnTheWall.com to delay reporting of the information for two hours after the reports are released.
"Surprisingly, no court has carefully explored the tension between the so-called 'hot news misappropriation' doctrine and freedom of speech and freedom of the press," said EFF Senior Staff Attorney Corynne McSherry. "We're asking the appeals court to recognize the elephant in the room and analyze the 'hot news' doctrine in light of the strong First Amendment protections developed by the Supreme Court to encourage the expression of truthful statements on matters of public concern."
Applying heightened First Amendment scrutiny is especially important now, as the Internet is increasingly allowing Americans to publicly gather, share, and comment on the news of the day. Misuse of the "hot news" doctrine could stifle this extraordinary growth of free expression.
"It's not hard to see how new and vital forms of social media could get caught in a 'hot news' dragnet," said McSherry. "The court must ensure that this doctrine is not used to quash online commentary and information-sharing."
For the full amicus brief:
http://www.eff.org/files/filenode/barclays_v_fly/FlyBriefFinal.pdf
Contact:
Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Today EFF and the Tor Project are launching a public beta of a new Firefox extension called HTTPS Everywhere.
This Firefox extension was inspired by the launch of Google's encrypted search option. We wanted a way to ensure that every search our browsers sent was encrypted. At the same time, we were also able to encrypt most or all of the browser's communications with some other sites:
Firefox users can install HTTPS Everywhere by following this link.
As always, even if you're at an HTTPS page, remember that unless Firefox displays a colored address bar and an unbroken lock icon in the bottom-right corner, the page is not completely encrypted and you may still be vulnerable to various forms of eavesdropping or hacking (in many cases, HTTPS Everywhere can't prevent this because sites incorporate insecure third-party content).
