With the help of Chilling Effects’s terrific new research associate, Rebecca Schoff, we’ve been updating the “Weather Reports” blog to provide timely updates on the climate for free expression online. Recent posts check in with the wild west of fair use, Veoh’s DMCA safe-harbor victory and some bites at the Apple. Add Chill weather RSS or follow @chillingeffects on twitter or identi.ca.

We’re also working behind the scenes to get takedown notices posted more quickly. In conjunction with Blogger, we’ve been working to help Bloggers get better information about DMCA notices demanding removal of material from their blogs, so they can determine whether to remove or edit the posts, or to counter-notify instead.

The French Constitutional Court Wednesday struck down the provisions of the HADOPI “graduated sanction” law that would have required Internet service providers to cut off subscribers access (while continuing to take their payments) after repeat warnings of copyright infringement.

The Court’s ruling recognizes the importance of Internet access and the necessity of due process — before access is cut off:

12. Whereas under Article 11 of the Declaration on the Rights of Man and Citizen of 1789: “The free communication of thoughts and opinions is one of the most precious rights of man: every citizen may therefore speak, write and print freely, except to respond to the abuse of this freedom in cases determined by law” that in the current state of communications and given the widespread development of communication services to the public online and the importance of these services for participation in democratic life and to the expression of ideas and opinions, this right includes freedom to access these [Internet] services;

See more at La Quadrature du Net.

Although French legislators say they will revise the law to leave its graduated warnings, the stripping of its automatic termination provisions is an important recognition that copyright cannot trump democratic communication.

UPDATE: While preparing for my SouthEast LinuxFest talk, it occurred to me that this is a good example of the power of generative demonstration: The hundreds of thousands of users participating in democratic communications via the Internet are all part of the wave that helped the Constitutional Court to see the Internet as a critical medium for speech and its access as a core human right. Five years ago, this decision would be unlikely, five years from now, it will seem inevitable.

There’s nothing like a misfired copyright claim to make a presidential campaign see the value of fair use. After finding several of its campaign videos removed from YouTube for copyright claims, the McCain-Palin campaign has fired off an eloquent defense of fair use — and another illustration of where the DMCA’s counter-notification process falls short.

The McCain campaign complains that its ads and web videos posted to YouTube have been removed on the complaint of news organizations whose footage was quoted:

[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…

Of course the McCain-Palin team could counter-notify, but the DMCA’s 10-14 business day waiting period makes that option next to useless, when “10 days can be a lifetime in a political campaign.”

The campaign proposes an expedited process for political campaigns. EFF’s Fred von Lohmann calls for a broader solution, to protect the bottom-up political expression of citizens, not just those who would be our leaders. We shouldn’t have to battle bogus copyright claims to debate the debates. And we shouldn’t exempt politicians from the effects of their laws, so perhaps their copyright misadventures can give them a bit more sympathy for the rest of us. Let’s hope this fair use defense lasts longer than a DMCA waiting period.

Students for a Free Tibet posted video of a Free Tibet protest to YouTube. YouTube pulled it, in response to a copyright complaint from the International Olympic Committee. From the
copy posted to vimeo (and thence re-posted to YouTube, it appears), it’s hard to see a colorable copyright infringement claim. Sure, the image of the Olympics’ (trademarked) interlocking rings and (copyrightable) mascot showed up, but those uses would be fair and non-infringing.

We see once again that the DMCA’s unbalanced takedown scheme encourages overzealous claiming of copyright, as an easy route to removal of unflattering content. With those already inclined toward enforcement zealotry, that pushes them far overboard.

Update 8/15: It appears that YouTube reinstated the video after the IOC indicated it did not really intend to pursue a copyright claim. Still sad that this level of assurance isn’t required before claims are filed in the first place.

Hasbro should have settled with the Scrabulous developers, not sued

While Hasbro was scrapping with Mattel over rights to develop an official online Scrabble (the two split geographic ownership of the Scrabble trademark), the Agarwalla brothers were building one. Their Facebook app, launched a year ago, won a loyal following among Scrabble fans who appreciated a chance to play the word game online, with friends in their social networks. Scrabulous listened to user suggestions, enhancing the online version to the point where it could boast 1.3 million monthly users and a 4.2 star rating, (as compared to 235k users giving Hasbro’s recently launched “beta” 1.2 stars).

Hasbro, however, responded to Scrabulous with a lawsuit, filed in the Southern District of New York, claiming copyright and trademark infringement, trademark dilution, and unfair competition. In response, the Agarwalla brothers closed the Scrabulous app to users whose IP addresses were located in the U.S. and Canada. (Since the Scrabulous website remains accessible from North American IPs, it’s possible the Facebook app was restricted under pressure from and on Facebook.) The EA Scrabble beta has been criticized as more visual flash than substance, without many of the playability features users had appreciated in Scrabulous.

Whether or not it has the legal right, I think Hasbro’s lawyers gave the company bad business advice. As I’ve said before, I believe Hasbro has no copyright claim, but might have (easily avoidable) trademark claims based on the “Scrabulous” name. If trademark’s value is goodwill, Hasbro’s federal complaint lost far more in goodwill than it preserved in control.

Hasbro may think it can ride this one out, that even 1.3 million Facebookers are only a small fraction of those it might interest in an “official” version later. Numerically, of course, that may be correct, but the raw numbers would miss the identities of those users.

I just came out of a three-day workshop on user innovation, where much research was presented on the value of “lead users” in innovation (see Democratizing Innovation for more). Lead users, such as Tim O’Reilly’s “alpha geeks,” push products and services to their limits, tweaking and often improving when their needs aren’t met by the stock components. Smart companies learn to listen to these users — while some of their demands will be unique corner cases, others are early indicators of where the masses will be soon — and where profits are to be made by a company that can supply needs and lead demand.

The Net makes lead-user innovation easier than ever, lowering the costs of communications channels to users sharing their enthusiasm and jointly developing ideas. They often freely reveal ideas and improvements that the savvy company can use in its own product development.

Some companies, O’Reilly’s among them, recognize the value of lead-user innovation and foster these user communities with conferences, forums, or support. When they take ideas and develop them further, to a mass audience now caught up to the curve, they do it so everyone feels fairly treated: the lead users get access to better products the company can produce at larger scale — and a platform for further innovation. Maybe the company even gets a chance to steer the “hackers” toward developments it prefers.

Others, however, see any hacking as “unauthorized,” to be shut down with cease-and-desist threats. They send nasty letters that may shut down the activity but also alienate the users who might show them where to go next. This is what Hasbro has done with its lawsuit against the Agarwalla brothers behind Scrabulous.

The Scrabulous users included Scrabble’s lead-user enthusiasts. Many fans posted to the application’s forum or “wall” (10,953 posts), giving the app developers (and anyone listening) both praise and suggestions for further enhancement. These lead users both told and showed where they wanted the game to go next. The Agarwalla brothers themselves were lead user innovators par excellence, spotting a need and filling it.

Hasbro’s lawsuit response to this outpouring of enthusiasm around Scrabble play quashed much of that lead-user drive. The posts on the EA “Scrabble beta” forum mix criticism of the company with complaints of bugs. Hasbro has neither the quality application nor the community around “official” Scrabble as the Agarwalla brothers had for Scrabulous.

There should have been enough value in Scrabulous to share — Hasbro does have US and Canada trademark rights to Scrabble, which imparted some value to the “Scrabulous” app, and Hasbro’s authorization could have allowed Scrabulous to build even further on the recognized brand. The Agarwallas have shown both programming talent and the ability to engage other enthusiasts. Together, they could create more value than either alone, and likely more than enough extra value to make it worth both their whiles to cooperate. As is, some of that value will migrate over to Wordscraper (Scrabulous’s revised form, which is fun but suffers from lack of interoperability with Scrabble), and some will head to authorized Scrabble, but some will dissipate entirely.

The Scientology critic known as “Wise Beard Man” returned to YouTube this week after successfully filing counter-notifications to copyright claims that had earlier been made against his account. The takedown and delayed return illuminate another of the lesser-known shoals of the DMCA safe harbor, the 512(i)(1)(A) “repeat infringers” consideration.

As Mark Bunker, the critic, describes it, he had initially set up a YouTube account under the name XenuTV, where he posted clips including commentary on Scientology. Some of these clips came from other sources, and two of them attracted DMCA takedown requests from Viacom, for “Colbert Report” clips in which Stephen talked about Scientology. These might well have been fair use, or he might have chosen to remove them, but as Bunker says, “Before I could act on the takedown notices and remove the offending clips, the accounts were canceled.”

Bunker began using a second YouTube account, XenuTV1, posting only clips of entirely his own material. His advice to the “Anonymous” critics made him a sort of elder statesman to the movement, and his account attracted over 10,000 subscribed viewers.

In April, however, this second account was abruptly canceled. Apparently, YouTube had discovered that it was Mr. Bunker’s second, after a canceled first, and interpreted the DMCA to compel termination of this second account.

The provision they were invoking was 512(i)(1)(A), which sets some conditions for service provider eligibility for shelter in the DMCA safe harbor:

“The limitations on liability established by this section shall apply to a service provider only if the service provider—
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers”

Now the DMCA does not define “repeat infringers,” and no cases have yet done so, so it’s left to ISPs to determine how to do so. Copyright claimants urge that two takedown notices make someone a “repeat infringer” whose account must be terminated (let’s hope it’s just the account, and not the subscriber himself!). In contrast, noted copyright scholar and attorney David Nimmer suggests that the provision should be construed strictly, to require “repeat infringer” sanctions only against those who have more than once been found liable for copyright infringement after legal proceedings. Nimmer, Repeat Infringers, 52 J. Copyright Soc’y 167 (2005). Nimmer also notes that unless “repeat” is limited to the service at issue, all the major motion picture studios would be ineligible for online posting accounts, since all have had multiple copyright infringement judgments rendered against them.

Nor does the DMCA define “appropriate circumstances” for account termination, so mitigating factors might well be raised against the termination of any particular account. The DMCA pre-condition is open to interpretation.

It appears, however, that YouTube determined that the two Viacom notices (Feb. 2, 2007, and Jan. 15, 2008) levied against Mr. Bunker’s XenuTV account marked him as a “repeat infringer.” Therefore, to maintain safe-harbor eligibility, YouTube felt compelled to terminate the second account, XenuTV1, upon recognizing that it was the same individual. Notwithstanding a complete absence of copyright claims against the XenuTV1 account, YouTube apparently concluded the risks of continuing to host the marked “repeat infringer” were too great.

Notably, 512(i) is a general precondition to the safe-harbor. Failure to “adopt[] and reasonably implement[]” a repeat infringers policy in one instance could be used against a provider as an argument to deny it the benefits of safe-harbor protection in an entirely unrelated case. YouTube’s risk calculation in responding to Mr. Bunker’s accounts, therefore, was not merely whether Viacom would sue over the Colbert clips Mr. Bunker had posted and YouTube removed, but whether entirely different copyright holders, complaining about other accounts’ postings, would invoke a failure to remove Mr. Bunker’s account as non-compliance with the DMCA’s eligibility requirements and seek to hold YouTube liable for other users’ infringements.

Mr. Bunker’s story concludes successfully, however, thanks in part to Viacom’s good sense. YouTube invited Mr. Bunker to file counter-notifications for the Viacom clips, and he did so in mid-May, asserting that the “mistake or misidentification of the material” was in not recognizing its use as fair. Viacom’s acceptance of the counter-notifications allowed YouTube to remove the “infringer” stain from Mr. Bunker’s account. For his part, Mr. Bunker says he was supported in his counter-notifications by the public messages of support and group effort to contact YouTube and Viacom to lay the groundwork, including those of VictoireFlamel and The Masked Analyst, who has a series of videos explaining the DMCA and counter-notification. Bunker reports that Viacom’s attorneys said they “wouldn’t be hard-nosed about fair use clips.”

Ten to 14 days after the counter-notification, therefore, when Viacom did not go to court to press its original copyright infringement claims, YouTube allowed the XenuTV accounts’ reinstatement.

While Mr. Bunker’s story ends happily for fair use, another story this week illustrates the danger of taking DMCA notifications as the mark of “repeat infringement”: University of Washington researchers reported getting DMCA takedowns against their laser printers, allegedly for sharing copies of “Iron Man” and “Indiana Jones.” MPAA agents sent DMCA notices without any verification that material was available from the accused IP addresses, much less that the materials infringed copyright. Meanwhile, universities report that they get DMCA takedowns alleging infringement by “shared folders” even when filters such Audible Magic make sharing impossible by blocking any transmission of files.

If the DMCA as a whole is to have any coherence, providers shouldn’t lose DMCA protection or subscribers lose their hosting based on such flimsy allegations.

As reported on Valleywag and picked up by Slashdot, Sony BMG has been testing an alternative to copyright takedowns of unauthorized music videos on YouTube: inserting a link to the band’s official page instead.

An eagle-eyed Valleywag tipster with a taste for Modest Mouse spotted an interesting new feature on YouTube. Uploads of music videos from the band by non-official sources now carry a link reading “Contains content from Sony BMG,” which leads users to the official Modest Mouse page on the site.

Commenter Mr. E discovers that the “claim” link is added automatically, by Google’s YouTube Video ID Tool, when a matching video is spotted on upload. Emphasis added:

Dear YouTube Member:

Sony/BMG has claimed some or all visual content in your video Float On. This claim was made as part of the YouTube Content Identification program.

Your video is still live because Sony/BMG has authorized the use of this content on YouTube. As long as Sony/BMG has a claim on your video, they will receive public statistics about your video, such as number of views. Viewers may also see advertising on your video’s page.

Sony/BMG claimed this content as a part of the YouTube Content Identification program. YouTube allows partners to review YouTube videos for content to which they own the rights. Partners may use our automated video / audio matching system to identify their content, or they may manually review videos.

Sincerely,
The YouTube Content Identification Team

This sounds like a promising development, a less intrusive means of copyright policing than the flat DMCA takedown. Might Sony be recognizing that fan appreciation is a good thing, to be nurtured into compensation rather than squelched with takedowns? As of Thursday morning, the Modest Mouse channel has been viewed 77,808 times, and this particular “Float On” video, with associated Sony ads, more than one million times. I can only hope the more nuanced approach succeeds without becoming too intrusive to the viewers or the host site.

The New York Times reports that RealNetworks has introduced an “authorized” version of “Scrabble by Mattel” to Facebook, in an effort to compete with the enormously popular Scrabulous. CNet is puzzled, in part because the “official” app is unavailable in the United States or Canada.

For those not yet hooked, Scrabulous has been providing a Facebook application that lets Facebook friends play the game of Scrabble online. If the game numbers increment sequentially, it has served more than 2 and a half million games, and claims 629,256 daily active users.

In January, BBC and others reported that the Scrabulous team and Facebook had received takedown demands from Hasbro and Mattel (the two companies divide worldwide rights to the Scrabble trademark). Months later, however, Scrabulous remains online, probably because the threats’ legal merits are murky: there are few rights to “a game” as such.

Three kinds of intellectual property might protect aspects of a game — patent, trademark, and copyright — but each has limits that leave plenty of room for imitators and emulators.

Over at Wired’s Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) (PDF) about his posting of their recruiting video. The post, Kevin says, was initially made at the Air Force’s invitation.

If the government created this work, then the DMCA claim is improper. Works of the U.S. government are not copyrightable. But the statute allows the government to receive copyright assignments, so if an independent contractor created the video, still available at the Air Force’s (non .mil) site, the government could meet that technical requisite of the DMCA.

The DMCA also requires that the notifier assert the posting was unauthorized. Poulsen’s article, however, says the Air Force sent Wired the ad and “thanked THREAT LEVEL for agreeing to run it.” That doesn’t quite square with the DMCA-required statement that the notice-sender “ha[s] a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law.”

Even if the Air Force’s DMCA claim is truthful, however, it’s still a policy overreach. Wired posted the video in order to report on government recruiting efforts; the video’s dissemination is part of that First-Amendment protected discussion, whether it happens on or off government websites. The DMCA makes it too easy to takedown first, think later.

Author Denise McCune posts a great account of the workings and failings of the DMCA’s notice-and-takedown procedures.

As Cory Doctorow has also reported on BoingBoing, the VP of the Science Fiction and Fantasy Writers of America sent an error-filled takedown complaint to text-sharing site Scribd, causing removal of many non-infringing postings including reading lists suggesting great science fiction, and Cory’s own novels, which he’s CC-licensed for free redistribution.

The DMCA safe-harbor is most charitably described as an intricate dance for all parties involved: the copyright claimant, the ISP, and the poster. When the dancers are synchronized, its notice, takedown, and counternotice steps give each party a prescribed sequence by which to notify the others of claims and invite their responses. That’s why the DMCA requires the claimant to identify the copyrighted works, specify alleged infringements with “information reasonably sufficient to permit the service provider to locate the material,” and state good faith belief that the uses are unauthorized. When a copyright claimant misses one of those key elements, he starts stepping on toes.

The service provider isn’t obliged to respond to deficient notices, but if a notice contains all the right formal elements — even if it’s factually wrong about copyright ownership or copying — the service provider must choose between taking down the material or losing its DMCA safe-harbor and facing potential lawsuits. Posters who believe their material is non-infringing or fairly posted can counter-notify and even file their own lawsuits for misuse of copyright claims, under sec. 512(f).

I share McCune’s hope that the brouhaha will help the SFWA to help authors express all their copyright interests, including that of free sharing:

I hope the SFWA’s lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I’m also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further — and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted — whether that control is a more traditional “nobody gets to use this, period” or a Creative Commons-style authorization of transformative work.