Viacom Makes Its Case Against Yesterday's YouTube: Via EFF.org Updates.

Today, after three years of litigation, the Viacom v. YouTube combatants finally publicly released their briefs (Viacom's; YouTube's; Class Action Plaintiffs') in what most expect to be the main event in the case, namely, cross-motions for summary judgment (for the non-lawyers: a summary judgment motion asks the court to rule that the case is such a slam dunk in your favor that no trial is necessary).

One surprise from Viacom is a concession that it basically has no beef with YouTube as it has been run since May 2008: "[W]e do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom's summary judgment motion is granted, do not intend to do so at trial." What happened in May 2008? That would be when YouTube launched its Content ID system, enabling copyright owners to "claim" their content and decide whether it will be blocked or monetized on YouTube.

In other words, this case isn't really about YouTube (at least YouTube circa 2010). It's about Viacom's effort to get the court to re-write the DMCA safe harbors to require everyone else to implement (and pay for) copyright filtering. If Viacom succeeds, it would radically change the innovation environment for all Internet companies that depend on the DMCA safe harbors.

Why are the DMCA safe harbors so important? YouTube says it best: [ Read more ... ]

Major ISPs Help Fund BitTorrent User Tracking Research: Via Slashdot YRO.

An anonymous reader writes "I was scanning conference proceedings to come up with ideas for a reading group I run at my workplace, and I noticed an interesting paper from the new IEEE WIFS forensics conference. Researchers from the University of Colorado have published a technique for tracking BitTorrent users (PDF) by joining and actively probing torrent swarms using low-cost cloud computing services. They claim their methods allowed them to monitor the entire Pirate Bay torrent set for as little as $13/mo using EC2. But that's not even the interesting part. Their work appears to have been 'funded in part through gifts from PolyCipher' — a broadband ISP consortium. That's right; three major national ISPs funded this round of BitTorrent tracking research, not the MPAA/RIAA. Could this be evidence of ISP support for ACTA and a global three-strikes law?"

Read Original Article:(Via Slashdot.)

The Weakest Link Redux: Via EFF.org Updates.

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. [ Read more ... ]

DMCA Muscle Strong-Arms DVD Copying: Via Threat Level.

Those awaiting a legitimate method to duplicate DVDs for personal use likely will have to wait even longer, perhaps forever, after RealNetworks tossed in the white towel and abandoned litigation toward that end.

RealNetworks spent almost two years in a legal battle with the Motion Picture Association of America, which sued the Seattle-based company to block the sale of its DVD-copying software and hardware –- generally known as RealDVD. The company said late Wednesday it was dropping its appeal of an August federal court decision that declared RealDVD an illegal violation of the Digital Millennium Copyright Act of 1998.

The act, which the Hollywood studios strongly lobbied for, prohibits the circumvention of encryption technology. DVDs are encrypted with what is known as the Content Scramble System, and DVD players must secure a license to play discs. RealDVD, U.S. District Judge Marilyn Hall Patel ruled, circumvents the CSS technology designed to prevent copying and is therefore a breach of the CSS license.

The litigation cost RealNetworks millions of dollars, including $4.5 million to reimburse the MPAA for its legal costs. The outcome cost Rob Glaser, RealNetworks’ CEO, his job. [ Read more ... ]

YouTube's Content ID (C)ensorship Problem Illustrated | Electronic Frontier Foundation: Via EFF - Electronic Frontier Foundation.

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. [ Read more ... ]

Unintended Consequences: 12 Years Under the DMCA: Via EFF.org Updates.

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. [ Read more ... ]

Cryptome's Publication of Microsoft's Compliance Manual is a Fair Use: Via EFF.org Updates.

Yesterday, Microsoft used a Digital Millennium Copyright Act (DMCA) takedown notice to demand that a copy of the "Microsoft® Online Services Global Criminal Compliance Handbook" (the Compliance Manual) be removed from Cryptome, a security website. As a result, Network Solutions felt obliged to takedown the entire Cryptome.org domain, a repository for thousands of important and controversial documents.

As is often the case, the ensuing uproar simply called more attention to the document in question. Yesterday evening, Microsoft wrote to Network Solutions and withdrew its takedown demand, while insisting that its copyright concern was nevertheless legitimate.

We appreciate that Microsoft acted quickly to correct its error, but are still disappointed that Microsoft nonetheless insists that, in the words of Evan Cox, outside counsel for Microsoft, "Microsoft has a good faith belief that the distribution of the file that was made available at that address infringes Microsoft's copyrights."

To the contrary, as we explain below, Cryptome's publication of the Compliance Manual is a clear fair use under the Copyright Act. [ Read more ... ]

Leaked ACTA draft reveals plans for internet clampdown: Via Computerworld(NZ).

ISPs must snoop on subscribers or face being sued by content owners

The US, Europe and other countries including New Zealand are secretly drawing up rules designed to crack down on copyright abuse on the internet, in part by making ISPs liable for illegal content, according to a copy of part of the confidential draft agreement that was seen by the IDG News Service.

It is the latest in a series of leaks from the anticounterfeiting trade agreement (ACTA) talks that have been going on for the past two years. Other leaks over the past three months have consisted of confidential internal memos about the negotiations between European lawmakers.

The chapter on the internet from the draft treaty was shown to the IDG News Service by a source close to people directly involved in the talks, who asked to remain anonymous. Although it was drawn up last October, it is the most recent negotiating text available, according to the source.

It proposes making ISPs (internet service providers) liable under civil law for the content their subscribers upload or download using their networks. [ Read more ... ]

ACTA "internet enforcement" chapter leaks: Via Boing Boing .

Someone has uploaded a PDF to a Google Group that is claimed to be the proposal for Internet copyright enforcement that the USA has put forward for ACTA, the secret copyright treaty whose seventh round of negotiations just concluded in Guadalajara, Mexico. This reads like it probably is genuine treaty language, and if it is the real US proposal, it is the first time that this material has ever been visible to the public. According to my source, the US proposal is the current version of the treaty as of the conclusion of the Mexico round.

I've read it through a few times and it reads a lot like DMCA-plus. It contains, for example, a duty to technology firms to shut down infringement where they have "actual knowledge" that such is taking place. This argument was put forward in the Grokster case, and as Fred von Lohmann argued then, this is a potentially deadly burden to place on technology companies: in the offline world Xerox has "actual knowledge" that its technology is routinely used to infringe copyright at Kinko's outlets around the world -- should that create a duty to stop providing sales and service to Kinko's?

This also includes takedown procedures for trademark infringement, as well as the existing procedures against copyright infringement. [ Read more ... ]

Copyright Undercover: ACTA & the Web: Via Internet Evolution - The Big Report .

Let's pause a moment to consider the nature of copyright, the Internet, and governance. Copyright law has historically been made by and for the entertainment industry's supply chain. Copyright rules were not envisioned as an adequate or desirable regulation-set for any other realm: We don't try to shoehorn labor law, finance, education, healthcare, election campaigns, or parenting matters into copyright.

But once you take those activities onto the Internet, copyright becomes the first line of regulation governing everything. It's impossible to do anything on the Internet without making copies (you made between 5 and 50 copies of this article just by following a link to it). And since copyright regulates copying, any rule that affects copyright will affect all those realms, too.

That's what makes ACTA's secrecy so troubling, even if you don't care about copyright, fair use, or other wonky subjects. [ Read more ... ]

Redbox, Movie Studios, and Subversion of First Sale: Via EFF.org Updates.

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. [ Read more ... ]

ACLU, EFF And Others In Court Today To Challenge Google Book Search Settlement: Via American Civil Liberties Union.

Groups And Prominent Authors Say Settlement Doesn't Protect Free Speech Or User Privacy

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org  

NEW YORK – The American Civil Liberties Union, Electronic Frontier Foundation (EFF) and Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law are in federal court today urging a judge to reject the proposed settlement in a lawsuit over Google Book Search because it does not include critical privacy protections for users of the online book materials. The groups filed an objection to the settlement in September 2009 on behalf of a coalition of more than two dozen authors and publishers, including ACLU Executive Director Anthony D. Romero and best-selling novelists Michael Chabon and Jonathan Lethem.

"As digital book programs like Google Book Search advance, more and more people will turn to the Internet for their reading needs. Readers should be able to expect as much privacy when they're reading a book on a Web site as they do in a library or bookstore," said Aden Fine, staff attorney with the ACLU First Amendment Working Group. "People should feel that they are free to read on the Internet without being monitored by private companies or the government." [ Read more ... ]

Google Books Fosters Intellectual, Legal Crossroads: Via Threat Level.

Nobody in their right mind opposes the intellectual soundness of digitizing the world’s books – even titles gathering dust in the stacks of university libraries — and making them available online.

Yet Google will encounter stiff resistance in a Manhattan federal court Thursday during a marathon hearing that could grant Google the keys to free the written word from a business and intellectual model as old as paper and ink.

“The benefits of approval are bounded only by the limits of human creativity and imagination,” Google told U.S. District Judge Denny Chin in a recent court filing ahead of Thursday’s hearing.

The final word on the so-named “Google Books” plan won’t rest with Judge Chin, and instead likely could fall on the U.S. Supreme Court. [ Read more ... ]

Digital Books and Your Rights: A Checklist for Readers: Via EFF.org Updates.

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: [ Read more ... ]

Any use of this article without the NFL's express written consent is prohibited: Via Law & Disorder Section - Ars Technica.

With the Super Bowl just concluded and baseball's spring training only weeks away, a question occurred to us: whatever happened to the push for copyright holders to tone down their copyright notices?

We hear and see the warnings whenever a football or baseball game is televised, whenever we read books, whenever we watch a movie. These are the sort of warnings that make claims like, "Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited," despite the apparent wrongheadedness of the statement. [ Read more ... ]

Authors Guild: ‘To RIAA or Not to RIAA’: Via Threat Level.

There’s equal reason to support or object to the proposed Google Books settlement.

Creating a digital catalog of the worlds’ words might be the Holy Grail of intellectual empowerment.

Yet building that library in the clouds would be allowed without the rights-holders’ consent — which the Justice Department and others contend is a complete and fundamental alteration of copyright law.

The Authors Guild is backing the settlement in hopes of creating a new and legitimate book-selling venue. In a message to members Friday, it supported the development of a digital marketplace for the world’s words as a counter to digital piracy.

What’s more, the group noted it didn’t want to be like the Recording Industry Association of America. The labels’ lobbying and litigation arm has sued thousands of individuals and music-trading sites — lawsuits that have not dented the illegal, pirated-music marketplace. [ Read more ... ]

Know Before You Go: Tickets May Come at a Higher Price Than You Realize: Via EFF.org Updates.

As part of our Terms of Ab(use) project, we pay close attention to the fine print of online agreements for provisions that are potentially dangerous to consumers. We've noticed a troubling change in the way event planners restrict the rights of individuals who attend their shows. Where once these limitations had to fit on the back of a ticket, increasingly event organizers have moved their fine print online, where they are able to use even more contract law to avoid the limits of trademark and copyright law and actively control what ticket holders can say or do even after the event is over.

These burdensome terms can show up in some pretty unexpected places. Last year we noted how the Burning Man Organization (BMO) used online ticket terms to require participants to assign to BMO—in advance—the copyright to any pictures they took on the playa. Tickets for the 2010 event went on sale in mid-January, and we hoped the new terms would acknowledge the concerns we had expressed. Sadly, the new terms are just as onerous as before. [ Read more ... ]

Anti-RIAA Site Folds: Via Threat Level.

Provocative website p2pnet.net, the online voice to one of the world’s most blistering and perpetual attacks on the Recording Industry Association of America, is shuttering amid financial doldrums. It was 9 years old.

“I can’t claim p2pnet has been protecting the world, but I’ve done my best to unspin some of the vested interest corporate spin, and expose a few of the lies and corruption,” the site’s voice and founder Jon Newton said in his “last post” Wednesday.

The Vancouver Island, British Columbia huckster is looking for donations or even a partnership in hopes of reviving the site that has become infamous for its mocking portrayal of the RIAA, which consists of Vivendi Universal, Sony BMG, EMI and Warner Music.

While Newton mocked the Motion Picture Association of America, the site is best remembered for referring to the RIAA as the “Big 4 Organised Music Cartel,” [ Read more ... ]

Will your big-screen Super Bowl party violate copyright law?: Via Law & Disorder Section - Ars Technica.

An offhand comment the other day by a friend caught my attention—"Did you know that you can't watch the Super Bowl on a TV screen larger than 55 inches? Yeah, it's right there in the law."

With the Colts and Saints set to do battle in Super Bowl XLIV, this seemed worth looking into as a public service. Could it be that some of those giant flat panel TV sets now finding their way into US living rooms are actually violating copyright law?

Read Original Article:(Via Law & Disorder Section - Ars Technica.)

Lawyers Challenge Lowered Amount of ‘Shocking’ File Sharing Award: Via Threat Level.

Lawyers for a music file sharer said Monday they would challenge a judge’s order reducing from $1.92 million to $54,000 the amount their client, Jammie Thomas-Rasset, must pay the recording industry for copyright infringement of 24 songs.

The appeal concerns Friday’s head-spinning order by U.S. District Judge Michael Davis. The Minnesota federal judge dramatically lowered the amount a jury in June ordered Thomas-Rasset to pay — after being found liable in what at the time was the nation’s first Recording Industry Association of America file sharing case to reach trial. Most of the RIAA’s 30,000 lawsuits were settled out of court for a few thousand dollars during the record companies’ six-year litigation campaign, which is winding down.

Joe Sibley, Thomas-Rasset’s attorney, said in a telephone interview that even the reduced amount of damages is unconstitutionally excessive. It’s a penalty of 2,250 times an assumed $1 cost of a music download. [ Read more ... ]

"Three Strikes" and Verizon: Not Happening: Via Public Knowledge.

Yesterday’s CNET report that Verizon had secretly adopted a “three strikes” policy towards alleged copyright infringers had our office all atwitter last night - how could a charter member of our ad hoc copyright reform coalition be engaging in such radical activity? Well, it turns out they weren’t.

As their misquoted spokesperson explains here, what Verizon employs is a process for passing on warning notices to alleged infringers, but that process does not include automatic termination. My guess is that to the extent that she was talking about infringers having their internet access terminated, she was referring to people who had been adjudicated by a court to be infringing, and as such, they would be violating Verizon’s terms of service.

Passing on warning notices that do not involve deep packet inspection is a process for limiting infringement that PK wholeheartedly supports and which appears to be quite effective. [ Read more ... ]

Verizon Terminating Copyright Infringers’ Internet Access: Via Threat Level.

While it was not immediately clear whether other internet service providers were following suit, the move comes as the Recording Industry Association of America and the Motion Picture Association of America are lobbying ISPs and Congress to support terminating internet access for repeat, online copyright offenders.

All the while, the United States has been privately lobbying the European Union to “encourage” so-called three strikes policies, according to leaked documents surrounding a proposed international intellectual property accord.

Verizon was not immediately prepared to comment in detail on the developments, first reported by CNET, or to detail how many of its more than 8 million broadband subscribers it has terminated — although CNET said the number was “small.” The RIAA declined comment.

“We reserve the right to do that,” Verizon spokeswoman Bobbi Henson said in a telephone interview regarding the terminations. [ Read more ... ]

Court Reduces ‘Shocking’ File Sharing Award: Via Threat Level.

A federal judge on Friday reduced a $1.92 million file sharing verdict to $54,000 after concluding the award for infringing 24 songs was “shocking.”

A federal jury in June found Jammie Thomas-Rasset liable in what at the time was the nation’s only Recording Industry Association of America file sharing case against an individual to go to trial. The Minnesota federal jury dinged her $1.92 million for infringing 24 songs. She asked the judge to set aside or reduce that $80,000 per song in damages.

U.S. District Judge Michael Davis agreed on Friday, and said the RIAA may have a retrial if it does not accept his ruling.

“The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music,” Davis wrote. “Moreover, although plaintiffs were not required to prove their actual damages, statutory damages must bear some relation to actual damages.” [ Read more ... ]

Hello Streisand Effect: Takedown Hall of Shame Grows by Four: Via EFF.org Updates.

(The Streisand Effect describes the phenomenon by which an attempt to suppress information results in faster, broader dissemination of that information. Roughly explained, attempted censorship -- particularly by a famous or well-known entity -- can flag the information as more interesting.)

Last October, we launched the Takedown Hall of Shame to highlight the most egregious attempts to silence speech online with bogus intellectual property complaints. Today, we’re inducting four more would-be censors into the pantheon of speech bullies. They are: [ Read more ... ]

John Morris will speak at a National Town Hall Webcast on Net Neutrality, Copyright Protection and the National Broadband Plan: Via CDT - Center for Democracy & Technology.

January 19, 2010 - 8:00am - 11:00am

John Morris

Internet Openness & Standards

Internet Neutrality

John Morris will speak at a National Town Hall Webcast on Net Neutrality, Copyright Protection and the National Broadband Plan.

Federal Communications Commission Chairman Julius Genachowski has confirmed that he will offer video remarks to kick off the Town Hall Webcast, by BroadbandBreakfast.com. [ Read more ... ]