Change.gov Content Now Under Creative Commons License

In the last few days, President-elect Obama's transition team took a significant stride towards a more open government by licensing the content of Change.gov under a Creative Commons Attribution license. Using that license essentially means that the transition team is allowing others to freely share and remix what's posted there, provided that reposts are attributed to Change.gov. The move is a victory for the public and the many advocates for a more wired, participatory democracy.

It's also another reminder of the importance of Creative Commons, which affords creators an opportunity to opt for something less than Disney-style copyright restrictions. By embracing a CC license, the Obama team sets a valuable example for others in government, many of whom may have defaulted to "all rights reserved" without considering other options.

While Change.gov has experienced some growing pains, the transition team appears to be making a real effort to use the website as a legitimate location for its conversation with the American public. The preview post of the President-elect's planned weekly address (posted on Thanksgiving Day) includes links to multiple sources — an embedded YouTube video, a link to the same video posted to Yahoo! Video, and a high-resolution .mov file — with the Creative Commons license guaranteeing that the public can freely share, remix, comment, and report on the President-elect's statement.

The switch to Creative Commons licensing is encouraging and we hope that it is a herald of more pro-open government changes to come.

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Judge Allows Bogus Jones Day Trademark Claims to Go Forward

In a decision that could have significant negative consequences for online speech and commerce, Judge John Darrah of the Northern District of Illinois has refused to dismiss some of the most preposterous trademark claims we've ever seen (and that's saying something).

The defendant in the case, BlockShopper.com, provides information about recent real estate transactions, including publicly available information about buyers and sellers. After BlockShopper published articles referring to two Jones Day attorneys who had recently bought homes (with links to their bios on the Jones Day firm website), the law firm sued BlockShopper, alleging that using the term "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site. With amicus support from EFF, Public Citizen, Public Knowledge and the Citizen Media Law Project, BlockShopper.com argued that the uses were fully protected by fair use and the First Amendment, and that no Internet user would imagine that Jones Day was affiliated with or sponsored BlockShopper based solely on a link or a reference to the firm in a headline.

This case was a perfect candidate for early dismissal. It is based on the erroneous belief that trademark owners can prevent others from using their marks, accurately, in the ordinary course of communication, to refer to the owners themselves. Trademark law has never given a mark owner veto power over all uses of its mark, and for good reason. Online and off, trademarks—words, symbols, colors, etc—are also essential components of everyday language, used by companies, consumers and citizens to share information. If Jones Day were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But that is not the law, and Jones Day should know it.

We're disappointed that a respected law firm like Jones Day started this outrageous litigation, but we're even more disappointed that the court didn't take this opportunity to nip it in the bud. The court said that it could not end the case at this stage because it is required to take Jones Day's allegations as true. That's not precisely so; on an early motion like BlockShopper's, a court is required to accept facts as true, but not (implausible) legal conclusions. That's because deciding the facts is up to a jury. But interpreting the law is exactly what the judge is supposed to do, and it's disheartening to see the court let this case go any further.

At any rate, by allowing the case to go forward, the court has made BlockShopper's defense much more expensive, even if BlockShopper is confident (as it should be) that it will win in the end. Thus, the court has sent a signal to news sites and blogs everywhere: no matter what the Lanham Act says, if you link to a trademark owner's site, or use a mark in a headline or post, you'd better have a pretty decent legal budget.

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YouTube Responds to McCain Campaign's Letter

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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YouTube Anti-Scientology Takedowns: Good News, Bad News

Now that the dust has settled on the anti-Scientology video takedown controversy, it's time to take stock. For those of you who missed this one: on September 4th and 5th, hundreds and possibly thousands of videos critical of the Church of Scientology were taken down as a result of DMCA notices reportedly sent by by American Rights Counsel, Dr. Oliver Schaper, the Schaper Company, Media House Enterprises, and ContentFactory America. It rapidly became clear that these entities did not hold the copyrights to the materials they claimed to be infringed, including footage from a Clearwater City Commission meeting and a man-on-the-street interview. In addition, many of these videos were obvious fair uses, such as independent news reports.

Here’s the good news: YouTube quickly realized something was fishy, and began investigating. Within days, YouTube suspended the accounts that had sent out the allegedly fraudulent DMCA takedown notices, reinstated the accounts that had been suspended for multiple allegations of copyright infringement, and put most of the videos back up on YouTube, all without waiting to receive DMCA counter-notices from YouTube users who had had their videos taken down.

Well done, YouTube. The company identified a problem and worked to resolve it and protect users, rather than waiting passively for the takedown targets to send counter-notices. As we noted last month, online service providers play a crucial role in preserving and promoting online political speech, and YouTube seems to have taken that role seriously here.

Now, the bad news: if YouTube had not been proactive in dealing with what appeared to be fraud, the Anti-Scientology videos might still be down today. Very few YouTube users filed DMCA counter-notices in response to the takedowns, apparently out of concern for their privacy. The DMCA-compliant counter-notices must normally include the full name, address, and telephone number of the alleged copyright infringer. YouTube passes this information along to the party making the copyright infringement claim. Scientology critics, reportedly concerned about Scientology’s alleged Fair Game policy, were reluctant to surrender their anonymity.

And here's more bad news: not only would takedown targets have to give up their own private information to get their videos restored, they had no guarantee that they would in turn be given the names and addresses of the people who sent the DMCA notices. The DMCA does not require Online Service Providers, such as YouTube, to pass on the identifying information in the DMCA takedown notice to the alleged infringer. Without that legal requirement, YouTube, as well as other OSPs, are reluctant to reveal this information for fear of violating the sender's privacy. That lack of quid pro quo is not just unfair, it makes it very difficult for takedown targets to determine whether the notices are from legitimate owners, and to pursue legal action when notices are sent improperly.

But now back to the good news: YouTube and other OSPs can take steps to remedy this imbalance. They should require individuals who send takedown notices to agree, in advance, to disclosure of their identifying information. If circumstances caution against disclosure (e.g., if the takedown target has been harassing or stalking the copyright holder in some way), copyright holders can use an agent to send the takedown, giving the alleged infringer a point of contact while protecting the individual's personal privacy. Whether the DMCA is being used as a tool of censorship or to press a legitimate copyright claim, transparency and openness is critical, and the copyright holder should have the courage to stand up and be counted.

We understand YouTube is aware of the problem and is considering ways to correct it. We hope that happens soon, before the next wave of abusive takedowns hits.

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Massive Takedown of Anti-Scientology Videos on YouTube

Over a period of twelve hours, between this Thursday night and Friday morning, American Rights Counsel LLC sent out over 4000 DMCA takedown notices to YouTube, all making copyright infringement claims against videos with content critical of the Church of Scientology. Clips included footage of Australian and German news reports about Scientology, A Message to Anonymous/Scientology , and footage from a Clearwater City Commission meeting. Many accounts were suspended by YouTube in response to multiple allegations of copyright infringement.

YouTube users responded with DMCA counter-notices. At this time, many of the suspended channels have been reinstated and many of the videos are back up. Whether or not American Rights Counsel, LLC represents the notoriously litigious Church of Scientology is unclear, but this would not be the first time that the Church of Scientology has used the DMCA to silence Scientology critics.

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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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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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Olympic Committee Takedown Shows Risks of Ill-Timed Take-Downs

It’s never OK to use improper copyright claims to take down legitimate, non-infringing content, but such takedowns are particularly galling when they are timed to directly interfere with the impact of a political message. That’s what happened this week to the Free Tibet movement, and the situation illustrates the risks of a “shoot first, ask questions later” approach to copyright policing.

The 2008 Olympic Games have been marked by controversy relating to the human rights record of its host, China. Two days ago, the International Olympic Committee (IOC) added to the debate by demanding that YouTube block a video of a protest by Students For A Free Tibet. The demand appeared to be based on a bogus copyright infringement claim: the protesters had projected various images on the wall of the Chinese consulate in New York, and the video of the protest was titled “Beijing Olympics Opening Ceremony.”

This is not the first time the IOC has used an intellectual property claim to stomp on speech. Nor is it the first time a content owner has caught a dolphin in its DMCA takedown driftnet. But the political and time-sensitive nature of this video made this “mistake” particularly appalling.

The blogosphere reacted with outrage, and rightly so. EFF made some inquiries of our own (we understand YouTube did so as well) and the IOC ultimately withdrew the complaint. That is a good thing. But this takedown highlights a larger problem. It takes just seconds to have a video taken down, but over two weeks to get a video put back up. And YouTube’s hair-trigger content verification program has made takedown even easier and faster—content owners can rapidly create lists of videos for takedown, and then send a takedown demand with a couple of additional clicks.

If IOC had not withdrawn its notice, here’s what would have happened in this case: the protesters’ DMCA counter-notice would have started the clock running and, if the IOC didn’t sue within 10-14 days—which of course it wouldn’t have, because it didn’t have a claim—the video would be restored. But that wouldn’t happen until after the 2008 games were over, and the delay would inevitably lessen the video’s political impact. As political organizers of all stripes know, timing is everything.

The DMCA was not designed to help content owners silence legitimate speech, even temporarily. But that’s exactly what happens when content owners don’t bother to form a good faith belief that the material they target is actually infringing. Shame on the IOC for failing to meet its minimal obligations.

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Tiffany v. eBay: Court Rejects Tiffany's Expansive Trademark Infringement Theories

In a decision that surely will be cited many times in coming years, Judge Richard Sullivan today sided with eBay in his decision [sixty-six page PDF] in the Tiffany v. eBay trademark trial. In so doing, the judge confirmed that trademark law is about consumer protection, not about squelching speech, and also rejected an attempt by Tiffany radically to expand the reach of contributory infringement.

First, the judge squarely rejected Tiffany's direct infringement claim. Tiffany noted that eBay had, for a time, "actively advertised the availability of Tiffany merchandise," both on eBay's own website and using sponsored links on Google and Yahoo!. The judge's reaction was, in a nutshell, "so what?" The judge rightly concluded that there isn't any reasonable way to describe the fact that people are selling Tiffany goods without saying "Tiffany." So long as you don't confuse consumers about the source of goods and/or suggest a mark owner endorses your activity, you're free to use a trademark accurately to describe products made by the trademark owner - here, to describe Tiffany jewelry as, um, "Tiffany jewelry."

But what if consumers are confused in another way, because it isn't Tiffany jewelry? What if it's fake? Tiffany argued that eBay should be held liable for sales of counterfeit Tiffany goods on the eBay site because eBay had been put on notice that such sales were (according to Tiffany) rampant on the site. Leaving aside the question of how extensive the sale of counterfeit goods actually is on eBay (the judge pointed out a number of problems with Tiffany's evidence), generalized notice of infringement - notice that there's "infringement in the air," as opposed to notice of a specific instance of claimed infringement - shouldn't magically shift the burden of policing for counterfeits from Tiffany to eBay. And the evidence showed that eBay quickly takes down listings when Tiffany sends specific notices that the goods being sold are not genuine.

Happily, the judge recognized as much and rejected Tiffany's "infringement in the air" theory. He pointed to a 1946 decision in which Coca-Cola had tried to argue that Snow Crest Beverages should be held liable, under a theory of contributory infringement, for the fact that some bartenders were using its Polar Cola in "rum and Coke" cocktails. "The [1946] court reasoned that if it imputed knowledge to the defendant based on Coca-Cola's blanket demand, the court would be expanding Coca-Cola's property right in its trademark, allowing Coca-Cola to secure a monopoly over the entire mixed drink trade." Judge Sullivan concluded that just as Snow Crest shouldn't be held liable based on generalized notice of what others might be doing with its product, eBay shouldn't be held liable based on generalized notice that some of its users (or even many of its users) were selling counterfeit Tiffany goods on its site:

Significantly, Tiffany has not alleged, nor does the evidence support a conclusion, that all of the Tiffany merchandise sold through eBay is counterfeit. . . . [T]he doctrine of contributory trademark infringement should not be used to require defendants to refuse to provide a product or service to those who merely might infringe the trademark. . . . Were Tiffany to prevail on its argument that generalized statements of infringement were sufficient to impute knowledge to eBay of any and all infringing acts, Tiffany’s rights in its mark would dramatically expand, potentially stifling legitimate sales of Tiffany goods on eBay. . . .

* * *

The Court is not unsympathetic to Tiffany and other rights owners who have invested enormous resources in developing their brands, only to see them illicitly and efficiently exploited by others on the Internet. Nevertheless, the law is clear: it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites.

(Emphasis added.)

This decision sends a clear signal to intermediaries worried about their liability for their users' potentially infringing activity: it is not your job to police all potential infringement on your site. That is a good thing for free speech of all kinds. When platform providers are concerned about being held liable for the alleged misdeeds of their users, their reaction is to remove anything that might be infringing. As a result, wide swaths of creative and lawful conduct are wiped from the Internet, like dolphins caught in a tuna driftnet. We're pleased Judge Sullivan resisted Tiffany's urging to shift its policing burden onto eBay, so that the dolphins can live to swim another day.

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Arista v. Does 1-21: What's at Stake for the Rest of Us

As if it weren't bad enough that the RIAA's lawsuits against file-sharers are futile, unfair, and immoral [PDF], they are also beginning to distort the law. In many of these cases, the recording industry is urging judges to accept controversial legal theories on the way to busting file sharers. It's not clear whether this is a tactical effort to cut legal corners to save money, or a strategic effort to build lower court precedents for use in other cases. Either way, these are frequently extremely unfair fights (such as in Atlantic v. Howell, where the defendant can't even afford a lawyer), and thus bad vehicles for making controversial new law. The judges simply aren't hearing both sides.

EFF is trying to do something about that.

Earlier this week, EFF filed an amicus brief [PDF] in Arista v. Does 1-21, a case against 21 Boston University students whose identities are being sought through a subpoena to the university. One of the anonymous students filed a motion to quash the subpoena, which is now pending before Judge Gertner in Boston. EFF filed the amicus brief on Monday, which was accepted by the judge yesterday.

EFF's brief in Arista v. Does 1-21 focuses on two issues that have been the subject of several EFF briefs in the past:

First Amendment Protection for Anonymous Speech: In many other cases, EFF has long fought hard to establish a baseline of constitutional protection for anonymous speech online. We've been successful, with courts recognizing that, where anonymous speech is concerned, you don't get to unmask someone just by having your lawyers file a meritless lawsuit in order to issue a subpoena. Instead, courts must make a preliminary inquiry to ensure that the suit has merit.

The RIAA, however, insists that their boilerplate complaints are enough to unmask anonymous file-sharers, even when completely unsupported by any specific evidence about the target. That's just flat wrong, as other courts have recognized [PDF]. But the RIAA keeps making the argument, without mentioning the First Amendment standard.

It may well be that the recording industry can meet the constitutional threshold here (as they have in other cases where they were forced to come forward with the evidence gathered by MediaSentry). But it's critical that the precedents don't get distorted to somehow treat copyright claims as exempt from the constitutional test that applies to every other sort of anonymous speech online. To understand the importance of consistently applying the right standard, imagine how this would work in a future case where a copyright owner was trying muzzle or intimidate an anonymous fair user (see, e.g., OPG v. Diebold, where Diebold tried to use bogus copyright claims to censor leaked documents off the Internet).

Distribution and "Making Available": In all of these cases, the recording industry is arguing that simply having a file in a shared folder makes you an infringer because you are "distributing" the file, even if no one has ever downloaded it from you. Huh? That sounds like attempted distribution, at best. That's not the law (and the Department of Justice has thus far failed in its efforts to change the Copyright Act to reach mere attempts).

This "making available" theory is wrong in two ways. First, as we've argued in other cases, distribution under the Copyright Act doesn't apply to electronic transmissions. Second, even if it does, the copyright owner has to prove that an actual distribution occurred -- it's not enough to say it could have happened.

This doesn't leave the recording industry without a weapon -- everyone agrees that file sharing involves the making of unauthorized copies of songs. It's just that the recording industry doesn't want to have to go to the trouble of gathering and introducing evidence of copying in court (like everyone else does). It's much easier to rely exclusively on MediaSentry's downloads from each defendant -- that way there is no need to know anything about the defendant.

The trouble with this is the precedent it sets for the future. Already, the recording industry has sued XM as a "distributor" because they transmit satellite radio to subscribers who have recording devices. The movie industry also pressed this "making available" theory against Google [PDF], reasoning that just linking to something online "makes it available." Fortunately, courts in these high profile cases have not taken the bait. But if the RIAA racks up a string of contrary precedents in file sharing cases, the next lawsuit against XM or Google might come out differently.

The trouble for those who are hoping to prevent these kinds of distorted precedents is that it's hard to keep up with all of the more than 20,000 lawsuits (and litigation threats) that have been brought by the recording industry. With any luck, one of the judges will sit down and write a strong opinion letting the RIAA know that it can't use overmatched file-sharers to reshape the law to their liking.

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