DMCA: Ten Years of Unintended Consequences

Commentary by Fred von Lohmann

Today is the tenth anniversary of the Digital Millennium Copyright Act (DMCA), signed into law by President Bill Clinton on October 28, 1998. EFF is marking the occasion with the release of a 19-page report that focuses on the most notorious part of the law: the ban on "circumventing" digital rights management (DRM) and other "technological protection measures." The report, entitled Unintended Consequences: Ten Years Under the DMCA, collects reported cases where the DMCA was used not against copyright infringers, but instead against consumers, scientists and legitimate competitors.

The collected stories are like a trip down memory lane for those who have followed digital freedom issues over the past decade. Here are a few examples of DMCA abuse in the report that you might remember:

• In 1999, Sony sues Connectix over the Virtual Game Station, which let you play your legit Playstation games on your Macintosh.
• In 2001, the Secure Digital Music Initiative (SDMI) threatens Princeton Professor Ed Felten's research team over disclosure of vulnerabilities in audio watermarking technology.
• In 2001, Russian programmer Dmitry Sklyarov is arrested after speaking at Defcon, accused of building software for his employer, ElcomSoft, that converted Adobe e-books to PDF.
• In 2002, Blizzard sues a group of hobbyist open source developers over bnetd, server software that allows people to play Blizzard games against each other over the Internet.
• In 2003, Lexmark uses the DMCA to block distribution of chips that allow refilling of laser toner cartridges.
• In 2004, Hollywood succeeds in shutting down 321 Studios' DVD X Copy software, which allowed people to make backup copies of their own DVDs.
• In 2006, computer security researchers at Princeton delay disclosure of the Sony-BMG "rootkit" based on fears of DMCA liability.
• In 2008, Hollywood targets Real Networks over RealDVD, software that allows you to copy DVDs to a hard drive for later viewing.

The collection of stories makes vividly clear what EFF has been saying for the past ten years: the DMCA has harmed fair use, free speech, scientific research, and legitimate competition.

That's all the more galling because the law has failed in its stated goal of preventing digital piracy, instead being used to prop up weak DRM schemes whose only purpose is to hinder competition, innovation, and interoperability. That explains why the music industry has largely abandoned DRM, while the Hollywood studios cling to it more fervently than ever.

Not everything in the DMCA is bad. While the anti-circumvention provisions have proven to be a dangerous failure, the so-called "safe harbor" provisions for online service providers have succeeded in creating enough legal certainty to launch companies like Yahoo, Google, eBay, YouTube, and MySpace. Of course, copyright owners have been working hard in cases like Viacom v. YouTube and Io v. Veoh to erode these safe harbors. And, while the safe harbors have protected intermediaries like Google, they have not adequately protected the free speech interests of internet users, as the McCain-Palin campaign recently learned.

There have been recent rumors that the new Congress might reopen the DMCA, creating an opportunity for reform. Unfortunately, that may also create an opportunity for MPAA and RIAA mischief. For now, here's hoping that the DRM continues its slow death and the anti-circumvention provisions become less relevant to real businesses, while the courts continue to interpret the safe harbors to leave a door open to the Internet's disruptive innovators.

P.S. For more perspectives on the DMCA's origins and legacy during this 10 year anniversary week, see Freedom to Tinker and the Public Knowledge blog all this week.

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YouTube Responds to McCain Campaign's Letter

Legal Analysis by Michael Kwun

Yesterday, we wrote about the McCain-Palin campaign's letter to YouTube, highlighting how DMCA takedown notices can make online speech disappear from the Internet, even when the claims of infringement plainly lack any merit.

Today, we bring you YouTube's response. YouTube's response points out, much like we did yesterday, that the McCain-Palin campaign's proposed solution (human review of DMCA takedown notices targeting videos posted by political candidates and campaigns) favors speech from one particular class of users. YouTube says that it "tri[es] to be careful not to favor one category of content on [its] site over others, and to treat all of [its] users fairly, regardless of whether they are an individual, a large corporation, or a candidate for public office."

At the end of the day, we agree with YouTube that "[t]he real problem here is individuals and entities that abuse the DMCA takedown process." And we commend YouTube for taking action in some cases where it has identified false takedown notices.

Nonetheless, although YouTube may not be the source of the problem, that doesn't mean it can't do more to be part of the solution. YouTube notes that it can't always be certain whether a video qualifies as fair use, and that it can't know whether the poster has a license to the content. That's all true.

But just because YouTube can't always identify sham takedown notices doesn't mean it can't sometimes know the answer. Using a short excerpt from a news broadcast and commenting on it in a political commercial is clearly fair use. And there are many other examples of clear fair uses, as well.

We'd love to see YouTube take further action, so that takedown notices directed at clearly non-infringing videos can't be used to silence speech. As we said yesterday, stay tuned for more on this topic from us soon.

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McCain Campaign Feels DMCA Sting

Legal Analysis by Fred von Lohmann

Yesterday, the McCain-Palin campaign sent a letter to YouTube describing the troubles it has been having with bogus DMCA takedowns targeting its videos:

[O]verreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech. Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine. The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use...

It's heartening to see a presidential campaign recognize the importance of fair use and "remix culture" (the Obama-Biden campaign has also been the victim of frivolous takedowns from big media companies, so this is a bipartisan problem). EFF, the ACLU, Harvard's Citizen's Media Law Project, and Stanford's Fair Use Project have been making the same point for several years now. EFF has also been providing direct legal assistance to victims of DMCA abuse.

Unfortunately, the solution proposed by the McCain campaign addresses only the tip of the iceberg:

[W]e believe that it would consume few resources--and provide enormous benefit--for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns.

The obvious problem with this solution? It assumes that YouTube should prioritize the campaigns' fair use rights, rather than those of the rest of us. That seems precisely backwards, since the most exciting new possibilities on YouTube are for amateur political expression by the voters themselves. After all, the campaigns have no trouble getting the same ads out on television and radio, options not available to most YouTubers.

Let's start by identifying the real villains here: the major news media outlets. They are the ones censoring these political ads, based on the use of a few seconds of their footage. The networks need to back off and give fair use a wide berth. So let's start by shaming the bad guys here. In addition, lawsuits might help. Under the DMCA, both the campaigns themselves and YouTube have standing to sue those who send clearly bogus takedown notices. (EFF has represented video creators in a number of these cases, including against Viacom.)

There are other possible solutions, as well. Stay tuned for our specific ideas on what YouTube can do to protect fair use while staying within the bounds of its DMCA safe harbor protection (hint: as the McCain-Palin letter points out, you don't need a safe harbor if the video isn't infringing, something that human review by YouTube should be able to determine).

UPDATE: The McCain-Palin campaign has identified the news outlets behind the YouTube removals: CBS, Fox News, and the Christian Broadcasting Network. We noted above that NBC has targeted an Obama-Biden video for removal. That's four news entities that should know better.

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EFF and ACLU of Northern California to ISPs and Content Owners: Do Your Part to Protect Political Speech

Commentary by Corynne McSherry

Coauthored by ACLU of Northern California Technology and Civil Liberties Policy Director Nicole A. Ozer

On blogs, personal and political websites, and through user generated content sites, ordinary citizens in extraordinary numbers are recreating a public sphere and reinvigorating the democratic debate at the core of our political system. 46% of Americans have already used the Internet in connection with the political campaign- more than during all of 2004.1 User-generated content is playing a particularly integral role, with 35% of Americans watching online videos and 10% using social networking sites to engage in political activity. 2

An overwhelming number of political discussions are taking place in publicly-accessible but privately-owned, online town squares. Which means that this important political speech depends on service providers, users, and content owners all doing their part to safeguard free speech.

Unfortunately, political speech has been threatened repeatedly by claims that controversial material violates a site’s terms of use or infringes copyrights or trademark rights. Here are just a few recent examples:

• The International Olympics Committee demanded that YouTube remove a video of a protest by Students For A Free Tibet, based on a bogus copyright infringement claim. The IOC subsequently withdrew the notice, but the IOC’s demand is a lesson in the dangers of hair-trigger DMCA takedowns by service providers.
• An alleged terms of service violation caused YouTube to take down a slideshow of a military funeral.
• Another alleged terms of use violation caused YouTube to remove a video critical of John McCain, apparently because the video included numerous graphic images of the effects of war. But those images were integral to the commentary: the video focused on McCain’s support for the Iraq war.
• An apparent copyright complaint caused Broadview Networks to shut down a political website parodying Exxon’s environmental policies.
• The Republican National Committee threatened the online vendor CafePress for allowing users to create t-shirts using Republican trademarks, like "Grand Old Party," or the official version of the elephant logo.
• The Chicago Auto Show tried to use allegations of trademark infringement to force the shutdown of a satirical website promoting transportation alternatives.
• The Associated Press tried to use the Digital Millennium Copyright Act (DMCA) to force the takedown of blog entries that reproduced excerpts of AP news stories—some of them just a few words long.

ACLU of Northern California and EFF urge service providers to take extra precautions before pulling the plug on political speech. Remember that you're facilitating a new era of reason and debate, and that there are laws that protect you as a facilitator. By taking that responsibility seriously, you’ll do right by your users, content owners and the political process.

We urge content owners to count to ten and look at the Fair Use Frequently Asked Questions and Fair Use Principles for User-Generated Video Content for some guidance before firing off a complaint. Remember that you are legally obligated to consider whether the use of your material is a fair use. Consider carefully whether actions may result in the loss of free speech, and remember: the antidote to free speech that you don't like is MORE free speech. Make your voice heard with a written blog post, a video blog post, or a message in the comment thread. We also urge users to contact us if they feel that their political speech has been improperly censored.

As we move forward into the fall election season, the Internet can continue to revitalize our political lives in exciting and unforeseen ways—but only if service providers, users and content owners all do their parts. No matter where you stand on the candidates or the issues, we should all agree on one principle: No downtime for online free speech!

1. 1. http://www.pewinternet.org/pdfs/PIP_2008_election.pdf
2. 2. Id. As many as 65-milliion Americans watched the virally distributed, political web video, “This Land,” in 2004. Under the Radar and Over the Top: Online Political Videos in the 2004 Election. http://www.ipdi.org/UploadedFiles/web_videos.pdf

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Wikipedia Wins Dismissal of Baseless Defamation Claims

News Update by Rebecca Jeschke

In a victory for free speech and user-generated content, a New Jersey judge has dismissed baseless defamation claims against the operator of Wikipedia. In a recent ruling, the judge correctly found that federal law immunizes the Wikimedia Foundation from liability for statements made by its users.

This case began when literary agent Barbara Bauer sued Wikimedia, claiming the organization was liable for statements identifying her as one of the "dumbest of the twenty worst" agents and that she had "no documented sales at all." EFF and the law firm of Sheppard Mullin Richter & Hampton represented Wikimedia, and moved to dismiss the case in May, arguing that under Section 230 of the Communications Decency Act, operators of "interactive computer services" such as Wikipedia cannot be held liable for users' comments.

Section 230's blanket protection of sites like Wikipedia does not mean that alleged defamation on the Internet cannot be challenged in court. Instead, the law requires that litigants direct their efforts at the speakers themselves and not the forums where statements were made. This means that sites like Wikipedia, Craigslist, and other online communities can continue to include user-generated content without living in fear of costly lawsuits.

Since it was signed into law over a decade ago, courts across the country have consistently applied the protections of Section 230 broadly, fulfilling Congress' intent to foster online interactive communications. We're pleased to add this case to the list.

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In Memoriam: Ed Foster, 1949-2008

Deeplink by Fred von Lohmann

Ed Foster, the journalist and consumer advocate behind InfoWorld's GripeLine column and GripeLog blog, died of a heart attack this weekend. He was 59.

It's no exaggeration to say that Ed was one of the preeminent consumer rights activists of the digital age. During his more than 20 years as a "reader advocate" at InfoWorld, he was far ahead of his time, recognizing that in a world increasingly dominated by software and online services, the digital consumer needed a champion when squaring off against the likes of Microsoft, Adobe or AutoDesk. Following in the traditions of the best consumer reporters before him, Ed exposed software vendors and online service providers that treated their customers shabbily.

But it was in his tireless work against "sneakwraps" -- those "end user license agreements" (EULAs) and "terms of service" (TOS) that require our "agreement" -- that Ed was without peer. You may not be reading all those "agreements" before you click thru, but Ed was. He recognized earlier than most that sneakwraps were going to be the digital consumer's worst nemesis, the mechanism that stripped consumers of the legal protections they enjoy when buying a book, a chair, or an automobile. Long before most consumer groups were thinking about sneakwraps, Ed was covering and participating in efforts to block UCITA, a package of state laws pushed by large software vendors that would have stripped consumers of valuable protections under contract law (UCITA was ultimately adopted by only two states, VA and MD, and has since been abandoned). Ed also contributed his insights on DRM, product activation, and reverse engineering to groups like AFFECT (Americans For Fair Electronic Tranactions) and EFF, making sure we knew what consumers were dealing with in the trenches.

Ed will be sorely missed, both professionally and personally, by all who benefited from his wisdom. Here are a few of my personal favorites from among his remarkable output of columns and posts:

Embroidering on a Copyright Shakedown Theme -- casting the spotlight on the "Embroidery Software Protection Coalition" (ESPC) after it sent settlement demand letters to grandmothers who bought embroidery software on eBay. Based on Ed's tip, EFF stepped in to protect the interests of innocent purchasers.

Sneakwrap Files: McAfee Automatic Renewals -- a consumer advocate's classic, wherein Ed confronts McAfee over the "automatic renewal" provision buried in the fine print of their EULA. McAfee backs down and coughs up a refund.

The Lexmark Car -- an April Fool's post explaining what the world would be like if a car manufacturer tried to get away with the kinds of shenanigans practiced by Lexmark in connection with their laser toner cartridges.

Into the DMCA Groove -- in 2003, an eBay seller gets into hot water after trying to auction a promo CD given away at The Gap. Ed cries foul, predicting 5 years in advance the exact outcome of EFF's UMG v. Augusto case, where a court found that "promo use only" labels can't trump the first sale doctrine.

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More ISPs Decide to Filter Usenet Newsgroups

Deeplink by Jennifer Granick

New York Attorney General Andrew Cuomo recently succeeding in pressuring AOL and AT&T to join the ranks of Verizon, Sprint, and Time Warner Cable in limiting access to many or all of the Usenet newsgroups hosted on their servers. This tactic will hinder free speech and the access to information in Usenet communities, without deterring the child pornographer. But since the ISPs are “voluntarily” bowing to political pressure, rather than obeying a statutory edict, traditional First Amendment court challenges are unlikely to protect these online communities.

Attorney General Cuomo has pressured these companies into censoring enormous amounts of First Amendment-protected material after an investigation found 88 groups containing child pornography, or 0.5% of the active discussion groups in the alt.* hierarchy. Verizon and Sprint are taking down one gigantic subset of groups, the very popular alt.* hierarchy, AT&T will block all alt.binaries.* groups, while Time Warner Cable and AOL are shutting down their Usenet service entirely. (link) California's Governor and Attorney General have jointly called on California's service providers to follow New York's initiative in "removing child pornography from existing servers and blocking channels that disseminate the illegal material."

Usenet is a technology that predates the birth of the World Wide Web. Similar to bulletin boards, it allows for conversation threads on a wide variety of topics. The alt.* hierarchy alone contains nearly 19,000 different groups. (link) Blocking the alt.* hierarchy, which is the largest and most active, predominantly censors innocent discussions in order to stop illicit activity in a handful of them. Examples of some of the groups that will no longer be available are alt.adoption, alt.culture, and even alt.horology (discussing the science of timekeeping). Blocking all of Usenet throws out even more legitimate and useful expressive speech.

Congress and the courts have struggled for more than 10 years to address the issue of "objectionable" Internet content, without a constitutionally permissible result. Two well-known attempts by Congress were the passage of the 1996 Communications Decency Act and the 1998 Child Online Protection Act. Both attempted to punish individuals who transmitted indecent material that was harmful to minors. The U.S. Supreme Court has ruled these provisions unconstitutional because they block speech that would be protected by the First Amendment in contexts outside of the Internet. States have also attempted to preemptively censor material. In 2002, the Pennsylvania legislature attempted to hold ISPs criminally liable for child pornography available on the Internet. The Pennsylvania Attorney General was able to unilaterally and secretly order ISPs to block access to IP addresses suspected of containing child pornography, resulting in the blocking of many innocent sites (particularly when the same IP address was used to host a variety of websites). A state court soon struck down that law as unconstitutional for violating both due process and prior restraint of speech.

The censorship demanded by NY Attorney General Cuomo arbitrarily filters an entire electronic neighborhood due to the activities of a few of its residents. Measures already existed to take down objectionable material from Usenet. The kind of responsive enforcement that has been previously used balances free speech and the need to stop the dissemination of child pornography much better than the arbitrary, blanket ban to which the ISPs have agreed. Even so, the tactic will not stop committed child pornographers. ISPs are only blocking their own internal Usenet servers, access to Usenet groups on remote websites remains unblocked. As a result, these actions will do little to stop the threat they are intended to prevent. (link)

Because imposed online censorship inevitably goes to far and has never been upheld in the courts, it is not surprising that Attorney General Cuomo chose to apply political rather than legal pressure to the ISPs. While Internet users have First Amendment rights to speech and expression online, ISPs also have a First Amendment right not to carry content that they do not want to promote. To the extent the filtering program is “voluntary”, it is not the government censoring Usenet or the ISPs, but the ISPs choosing what speech they want to carry. Still, ISPs offer the critical public service of providing people with access to the prosperity of information available online. They have an obligation to consider the effects of their censorship on innocent material, and not just the political expediency of accommodating the Attorney General’s request. The heavy-handed approach of shutting down an entire online service is the least efficient and effective way to accomplish their legitimate goal. Usenet is a communication protocol, no different from Hypertext Transfer Protocol (HTTP), which makes the Web possible. Although the Web is also plagued by some amount of objectionable material, no one would remotely consider blocking access to the entire internet an appropriate solution. ISPs should not take advantage of the relatively small size of the Usenet community to deny their customers access to the diverse forms that content can take on digital networks.

*Thanks to Nick Jackson, summer intern, for his work on this Deeplink

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B-24 Liberated!

Deeplink by Corynne McSherry

Last month we told you about Lockheed Martin's effort to use trademark infringement claims to cause the removal of digital images of classic military aircraft from TurboSquid, a stock images site. The central mark at issue was the term “B-24,” which Lockheed managed to register as a trademark for use in connection with scale models of airplanes. We sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections. We're pleased to report that Lockheed has decided to withdraw its claim, and TurboSquid is putting the images back up forthwith.

This is a good outcome, but the problem remains. Because online communication and commerce often depends on intermediaries like TurboSquid, who may not have the resources or the inclination to investigate trademark infringement claims, it is much too easy for trademark owners like Lockheed to ignore fair use and shut down legitimate content. And not every target of improper claims is going to have the resources to push back.

One way to help prevent future overreaching claims is for trademark owners to learn that a trademark registration doesn’t give you a right to control everyday use of regular descriptive terms. Another is for large trademark owners to set up websites or email "hotlines" where the targets of trademark claims can seek review and prompt withdrawal of the claim if the takedown request was in error. Such a hotline won't stop real abuse, but will provide a relatively painless way for trademark owners to correct honest mistakes. Finally, service providers should institute a form of counter-notice procedure that would allow those who believe they have been accused unfairly to quickly determine the basis for a takedown, and request reconsideration. Real infringers won't bother to take advantage of such a procedure, but fair users could use it to show that their use is permissible (and therefore does not put the service provider at risk).

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Knitwit BBC Goes After Dr Who Fans

Deeplink by Danny O'Brien

Here's a fascinating UK legal analysis of an incident we see occurring all over the world: an over-eager rightsholder undermining Internet goodwill by pursuing their own fans for supposed IP infringements.

Andre Guadamuz, is a lecturer at the Edinburgh University school of law, and organizes the fantastic British conference on "geek law", Gikii. He was recently put in contact by the Open Rights Group with Mazzmatazz, a Dr Who fansite which posts knitting patterns of the current batch of Dr Who monsters, including those obedient servants of man, the Ood (see above).

BBC Worldwide, the commercial wing of the public service BBC, sent the site a demand to remove "any designs connected with DR WHO" -- even though the site was offering them free to anyone who wants to knit their own loveable Who-related terrors.

Guadamuz covers the legal ground, and suggests that, like many rightsholders, the BBC has less power to stop fans from creating their own transformative works than they might think. Sadly, that's not enough to save the woolly Ood designs which were taken down out of concern for just the threat of legal action.

As Guadamuz notes, the BBC and Dr Who production staff should know better than to pursue a campaign of online threats against their own fans. These are the people that kept the BBC's now-lucrative Who franchise going during years of neglect by its owners; these are the people who actively promote the current series; and, in the UK at least, these are the people who pay the bulk of BBC's salaries.

Like Dr Who's Ood, fans are happy to serve their favorite franchises when treated well. But if the BBC starts treating them like this, they can all too easily rise up and attack the very brand value the BBC is overzealously seeking to protect.

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How Surveillance Hurts Free Speech

Deeplink by Hugh D'Andrade

Sunday's LA Times has a great opinion piece by political writer Julian Sanchez, situating the current debate over FISA reform within the long and sordid history of illegal surveillance in the US.

Going back to the '20s, Sanchez reviews multiple occasions when authorities have used spying powers not to protect the country, but to further the political aims of parties and politicians:

The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts — and the presidents they served — had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices — even Eleanor Roosevelt and the Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."

Sanchez traces the history of US government surveillance abuses by both Democrats and Republicans throughout the 20th century. He emphasizes that surveillance isn't just a threat to privacy — it's a threat to free speech. That's why today's wiretapping debate matters, even to those who may think they have nothing to fear:

It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.

The Atlantic Monthly's Matthew Yglesias follows up, putting the current legislative fight over immunizing telephone companies in context:

Given the long bipartisan record of wiretap abuse, and given the greater range of possible abuses under modern technological circumstances, it's all-but-inevitable that if we further weaken the restrictions on the White House's ability to act, that abuses will happen.

It's really baffling to me that Republican members of congress — and all-too-many Senate Democrats — don't see it this way. Unlimited, unaccountable power will be abused, and not always in ways that Republicans like.

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