Computers Seized from Berkeley Activist Space

Yesterday, the FBI, UC Berkeley police, and Alameda County Sheriff's deputies conducted a raid on the Long Haul Infoshop, a community space that is home to a number of leftist and anarchist groups, including a newspaper and a radio station. Armed with a warrant (PDF), authorities entered and quickly removed every computer in the Long Haul space.

According to the Associated Press, a UC Berkeley spokesman said that the raid was part of an investigation into threatening e-mails tracked to computers there. Among the computers seized were computers belonging to the Slingshot newspaper, and the Berkeley Daily Planet reports that police "got [Berkeley Liberation Radio's] hard drive."

Even with a warrant, the authorities may have acted in violation of federal law when they seized the computers. The seizure of media computers would appear to be a violation of the Privacy Protection Act, which says that the authorities are not entitled to "search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper [or] broadcast."

The purpose of the Privacy Protection Act is to ensure the freedom of speech and of the press. While there are exceptions to the act (such as when the documents seized themselves contain classified information or child pornography), the intent of the act is to prevent the government from using its search and seizure powers to shut down newspapers and radio stations, or otherwise interfere with the free flow of information to the public.

The seizure of computers is of special interest to EFF, since the first case we fought — and won — was a result of the illegal seizure of several computers from Steve Jackson Games in 1990. In that case, the federal court held that the Secret Service violated the Privacy Protection Act, and ordered the agency to pay for the harm it had caused.

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EFF Urges Copyright Office to Fix Digital Music Mess, but Carefully

In comments filed today, EFF joined with other public interest and consumer groups in urging the Copyright Office to clarify the process for licensing digital music services, but to steer clear of larger digital copyright controversies. The comments were filed in a rulemaking involving the Section 115 compulsory license for "digital phonorecord deliveries" (DPDs) that has been dragging on since 2001 (read the July 16, 2008 "notice of proposed rulemaking" for a summary of the tortured history of the proceeding).

The issues are fantastically complex (even most copyright experts are perplexed by the morass surrounding digital music licensing), but the current logjam boils down to music publishers against everyone else. Every music recording involves two copyrights: one for the sound recording (i.e., the "master"), which is usually controlled by a record label, and one for the musical work (i.e., the "composition"), which is usually controlled by a music publisher. Different music services need different sorts of licenses (and those that simply host materials uploaded by users or simply distribute software may need no license at all), and it has been notoriously complicated to figure out who to contact for the relevant licenses.

The licensing of sound recordings has been getting easier, not least because the four major labels cover so much of the waterfront, and because licensing aggregators are consolidating the independent labels. It's the music publishers that represent the last great obstacle to streamlined licensing, in large part because there are so many of them. The good news here is that Congress in 1995 created a compulsory license in Section 115 of the Copyright Act, which means that so long as you pay a set rate, you can get a license to any and all musical works that you need. The bad news is that the interpretation of what the compulsory license covers, as well as the rate setting, has been trapped in regulatory limbo for years, creating uncertainty for everyone.

The Copyright Office has been trying to break the logjam with respect to digital music services by issuing regulations clarifying the scope of the DPD compulsory license. In particular, the Copyright Office is aiming to cut through some of the complexity by saying that the compulsory license is broad enough to cover any and all copies (whether server-side or client-side, whether on a hard drive or in a RAM buffer) made in the course of any kind of digital music service (whether downloading, streaming, or time-limited subscription).

So far, so good. The DPD compulsory license was created by Congress to prevent music services from having to find and negotiate one-by-one with every music publisher for every song. If some incidental copy is left hanging outside the 115 license, that goal would be frustrated.

But, as discussed in the EFF comments, the Copyright Office's proposal goes a bit too far by trying to resolve a number of other, unnecessary, copyright controversies that should be resolved by the courts or Congress. In particular, the proposed regulations took the position that temporary RAM buffer copies made in the course of streaming should qualify as copies under copyright law, precisely the issue that the Cablevision DVR opinion decided the other way just a few weeks ago. The proposed regulations also unnecessarily weigh in on the question of whether the distribution right reaches digital transmissions, an issue EFF has addressed in several court cases.

There is no need for the Copyright Office to get entangled in these continuing controversies in order to clarify the DPD compulsory license. It is enough for the regulations to clarify that all of the activities of digital music services can be licensed under the compulsory license, without coming to any conclusions about whether any particular activities must be licensed. Rather than issuing broad statements that will only spawn more litigation, the Copyright Office should stay out of these extraneous controversies and focus instead on clarifying the Section 115 compulsory license.

UPDATE: The Copyright Office is posting all of the comments received. Reply comments are due on Sept. 15, 2008, and a hearing will be held in Washington, D.C. on Sept. 19, 2008 (details here).

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Required Reading for "User-Generated Content" Sites: Io Group v. Veoh

In an important ruling handed down yesterday, a federal district court threw out a copyright infringement suit brought by adult video producer Io Group against Veoh, concluding that the video hosting site qualifies for the DMCA safe harbor. The ruling should be required reading for the executives of every "Web 2.0" business that relies on "user-generated content."

Veoh, like YouTube, is a streaming video site that hosts videos uploaded by users. Io Group sued Veoh in 2006 after finding clips from 10 of its copyrighted adult films on the Veoh site. So far, this is a familiar story -- user-generated content site gets sued by copyright owner for naughty uploading habits of users (see, e.g., lawsuits against MySpace, iMeem, YouTube, Redlasso, Hi5, Multiply, Stage6, MP3tunes, Scribd, Usenet.com, Bolt, and Grouper). But this is the first case to get to a final ruling, and it's a total victory for Veoh.

The key to Veoh's victory was its scrupulous attention to the DMCA safe harbors. Veoh responded to compliant DMCA takedown notices on a same-day basis, it notified users of its policies against copyright infringement, it registered a Copyright Agent with the Copyright Office, it terminated users who were repeat infringers and blocked new registrations from the same email addresses, it used hashes to stop the same infringing videos from being uploaded by other users. These efforts actually go beyond the requirements of the DMCA safe harbors, and made it clear that Veoh was serious about responding to copyright infringement notices.

This ruling provides valuable guidance to companies that host video, audio, and text files on behalf of users (see, e.g., Muxtape). Too many "Web 2.0" start-ups are careless about the requirements of the DMCA safe harbors. They don't register a Copyright Agent, or keep good records of their responses to takedown notices, or have a demonstrable policy of terminating "repeat infringers." Sure, doing this "compliance" work costs time and money. But, as the Veoh decision demonstrates, the payoff can be enormous, since copyright is almost certainly the biggest liability risk these sites face.

The ruling also debunks some of the favorite anti-safe harbor arguments bandied about by entertainment industry lawyers (and gives a boost to YouTube in its fight with Viacom). The court specifically rejects the argument that "transcoding" content to facilitate access disqualifies a service provider from the safe harbor (Veoh automatically transcodes uploaded videos into Flash). The ruling also joins other courts in concluding that, even if Veoh made money from advertising around the videos, it still qualifies for the safe harbor because it lacks the "right and ability to control" (see Section 512(c)(1)(B) of the Copyright Act) the infringing activities of its users.

While there are still plenty of unexplored legal questions surrounding the DMCA safe harbors, this ruling provides important practical guidance for companies that host user-uploaded content.

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

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. https://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. https://www.ipdi.org/UploadedFiles/web_videos.pdf

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The Secret Room: EFF Designer's Cartoon on Illegal Spying

I was asked recently to create a mural-sized political cartoon (and to paint it live!) at a show of experimental drawings and cartoons at the Mission Cultural Center in San Francisco. I chose as my subject the NSA's "secret room" at AT&T's Folsom Street facility. As part of the Bush administration's massive and illegal spying program, the communications of millions of ordinary Americans are illegally intercepted and copied via fiber-optic splitter, and diverted into this secret room, which is controlled by the NSA.

What exactly goes on inside that room? Here's a time-lapse video of my fanciful answer to that question:

Privacy info. This embed will serve content from youtube.com.

The finished piece is available for viewing now through September 14 at the Mission Cultural Center, along with lots of other great drawings by various artists. Video shot and edited by EFF staffers Chris Contolini and Richard Esguerra, with CC-licensed music by Skandalo Publico.

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minilinks for 2008-08-21

• Senators: FBI Rules Could Target Innocent People
  Four Democrats criticized proposed attorney general guidelines that
  the Senators say would allow the FBI to spy on innocent Americans.
  
• Watch-Listed Fliers Can Sue
  An appeals court ruled that passengers can sue the government to have
  their names removed from no-fly lists.
  
• Why the MIT Students Were Right
  Bruce Schneier argues that the benefits of full disclosure in
  security research far outweighs the dangers.
  
• Microsoft Planning IE Privacy Mode
  The next version of Microsoft's Internet Explorer browser may come
  equipped with a "privacy mode" -- but why isn't all web browsing
  private?
  
• Facebook's Beacon Controversy Returns -- in Court
  Users of Facebook's Beacon product have filed suit, claiming privacy
  violation when the product shared their personal info without consent.
  
• McCain Sued for Copyright Infringement
  The singer Jackson Browne is suing the presidential candidate for
  using his song "Running on Empty" without permission.
  
• Visual Search Engine Tracks Photo Usage
  The new TinEye search engine searches the web for a pattern of
  pixels, rather than a text string.
  

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Appeals Court Remands Gov't Appeal in Hepting v. AT&T

Today, the United States Court of Appeals for the Ninth Circuit returned the Hepting v. AT&T case to the District Court. In a two sentence order, the court wrote:

In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

The government and AT&T had appealed Judge Vaughn Walker's June 2006 decision rejecting the argument that the state secrets privilege prevented millions of ordinary American from having their day in court. Oral argument was held August 2007.

Over the next year, the litigation was stayed because the appeal was pending. In the interim, Congress bowed to the demands of the Bush Administration and passed the unconstitutional retroactive immunity bill, the FISA Amendments Act.

The Government has not yet invoked the FAA's new procedures. Nevertheless, the government moved to have the Ninth Circuit stay the state secrets appeal, effectively asking the court for two chances to get the underlying litigation tossed from the courthouse. EFF opposed, noting that it was already well-known that AT&T and the government cooperated in the warrantless wiretapping program. We requested:

that the Court deny the government’s motion to hold this case in abeyance and instead dismiss the appeal and remand the case to the district court.

Earlier, in a related ruling last year, the Ninth Circuit had remanded the Al Haramain case to Judge Walker to determine whether FISA preempted the state secret privilege. In July, Judge Walker held FISA did preempt, and suggested that the Hepting plaintiffs might be able to benefit from the FISA preemption because they can show “'independent evidence disclosing that plaintiffs have been surveilled' and a 'rich lode of disclosure to support their claims.'"

This decision is good news for the millions of AT&T customers who were illegally surveilled under the warrantless wiretapping program. While we still must convince the court that the retroactive immunity bill is unconstitutional, for now, the state secrets privilege will not keep the courts from dispensing justice.

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Order Against Comcast Issued, FCC Credits EFF

The FCC has finally published its order (adopted on August 1) directing Comcast to stop blocking BitTorrent traffic. The 34-page ruling makes for surprisingly enjoyable reading, at least as FCC publications go. The order follows the basic outline that was explained by Chairman Martin in his statement on August 1, 2008. But there are some interesting additional tidbits:

• The FCC specifically cites and credits EFF's testing in discussing Comcast's BitTorrent blocking activities. And it also relies explicitly on evidence gathered by individual Internet users Adam Lynn, Jeffrey Pearlman, David Gerisch, Dean Fox, and Robert Topolski. The order concludes with this remarkable invitation: "We invite ... members of the public to keep a watchful eye on Comcast." And, as it happens, EFF is building the Switzerland network testing tool to help Internet users to do just that!
• The Commission dismisses Comcast's claim that it was merely "delaying" BitTorrent traffic as "verbal gymnastics," specifically finding that "the company has engaged in blocking." Glad to see we can put that semantic debate to rest.
• The FCC sets out a standard for reviewing discrimination undertaken in the name of "reasonable network management": the "practice should further a critically important interest and be narrowly or carefully tailored to serve that interest." According to the FCC, even if congestion management was "critically important," Comcast's methods were hopelessly over- and under-inclusive. The Commission cited EFF's testing on this point, noting that Comcast admitted to blocking BitTorrent seeding without regard to neighborhood congestion or user-specific bandwidth usage.
• Also in accord with the comments submitted by EFF, the FCC called Comcast out for its failure to disclose its practices to its customers, noting that "Comcast's first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation."
• The FCC spends 12 pages justifying its regulatory authority to issue the order, invoking its Title I "ancillary jurisdiction" to regulate in the name of "national Internet policy" as described in seven statutory provisions, all of which speak in general terms about "promoting deployment," "promoting accessibility," "reducing market entry barriers," and the like. Reading this section of the order, one can't help but feel sympathy for Commissioner McDowell, who in his dissent worries that "under the analysis set forth in the order, the Commission can apparently do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment." If Comcast sues to overturn the order, you can be sure that this is where it will focus its attack.
• And now for the remedy. Quoting Ronald Reagan's mantra, "trust but verify," the Commission has ordered Comcast to do 3 things within 30 days:
  

  (1) disclose to the Commission [but not the public?] the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed;

  (2) submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and

  (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers’ access to bandwidth.

So, while we continue to be worried about the future risk of regulatory capture of the FCC by large ISPs, and have our doubts about the Commission's authority to regulate the Internet, the order hits the nail on the head when it comes to analyzing what Comcast actually was up to.

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Judge Rules That Content Owners Must Consider Fair Use Before Sending Takedowns

A judge's ruling today is a major victory for free speech and fair use on the Internet, and will help protect everyone who creates content for the Web. In Lenz v. Universal (aka the "dancing baby" case), Judge Jeremy Fogel held that content owners must consider fair use before sending takedown notices under the Digital Millennium Copyright Act ("DMCA").

Universal Music Corporation ("Universal") had sent a takedown notice targeting a 29-second home movie of a toddler dancing in a kitchen to a Prince song, "Let's Go Crazy," which is heard playing in the background. Because her use of the song was obviously a fair use and, therefore, non-infringing, Lenz sued Universal for misrepresentation under the DMCA. Universal moved to dismiss the case, claiming, among other things, that it had no obligation to consider whether Lenz's use was fair before sending its notice. The judge firmly rejected Universal's theory:

[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright.

Universal had insisted that copyright owners could not efficiently police copyright infringement if they had to consider whether a give use was fair. Not so, said the judge:

[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

The court also noted that consideration of fair use is necessary to make sure that content owners do not abuse the takedown process:

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Given the "shoot first and ask questions later" approach some content owners take to the DMCA notice process, improper takedowns of non-infringing fair uses are all too common. We're very pleased that Judge Fogel has put content owners on notice: ignore fair use at your peril!

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The FCC and Regulatory Capture

Earlier this month, Internet users welcomed the FCC's ruling against Comcast for interfering with BitTorrent uploads, celebrating the action as a victory for net neutrality. Reigning in Comcast's dishonest behavior was the right thing to do in this case, but many observers are worried that the FCC is establishing a dangerous habit of interfering with the Internet, especially since the FCC has a spotty history when it comes to serving the public.

For those looking for more background, a great panel discussion/podcast from the Technology Liberation Front explores the series of decisions that brought the FCC to the forefront of the net neutrality debate and covers why those decisions are unprecedented. Commenting on the FCC's action, law professor Susan Crawford writes:

The [FCC] is in completely uncharted waters, using this idea of 'ancillary authority' to carry out whatever it feels like. [...] Although in the short term condemning Comcast is certainly a good idea, the notion that case-by-case, wholly discretionary adjudications like this one are possibly a good idea for all aspects of internet policy is nuts.

But it is technology scholar and journalist David Robinson who reaches the root of the problem looming beyond the horizon: "[The Comcast decision] also preserves the Commission's ability to make bad choices in the future, especially if diminished public interest in the issue increases the odds of regulatory capture."

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