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.

Remember ACTA, the draft proposed “harmonization” of copyright found on Wikileaks? In keeping with the view that harmonization is a one-way ratchet up, RIAA has some suggestions for the US Trade Representative.

J. Online Infringing Activities

Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
3. Provide remedies and injunctive relief against any entity that:
(a) Creates or otherwise maintains directories of infringing materials;
(b) Provides “deeplinks” to infringing files;
(c) Commits any act, practice or service that has little or no purpose or effect other than to facilitate infringement, or that intentionally induces others to infringe (specifically allowing proof of “intent” by reference to objective standards–i.e. a reasonable person would surmise such an intent);
4. Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.
6. Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e­mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content, or access to such content, in an expeditious manner, and in no case more than 24 hours; or
Provide that, in the absence of proof to the contrary, an internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement, after receiving notification from the right holder or its representative, normally in writing, including by email or by telephone in the case of pre-release materials or in other exigent circumstances.
7. Establish, adequately fund and provide training for a computer crimes investigatory unit.
8. Provide injunctive relief against intermediaries whose services are used for infringing activities regardless of whether damages are available.
9. Establish policies against the use of government networks and computers, as well as those networks and computers of companies that have government contracts, to prevent the use of such computers and networks for the transmission of infringing materials, including a ban on the installation of p2p applications except, and to the extent to which, some particular government use requires such installation.
10. Consideration to be given to the following: possible rules on data retention, the right to information giving right holders access to data held by ISPs in the preparation and course of proceedings including in civil proceedings, and availability of complete and accurate WHOIS data

RIAA’s proposal is a compendium of everything they dislike about rulings that have gone against them: the lack of a “making available” right (Atlantic v. Howell); the requirement of knowledge before non-volitional actors such as ISPs can be held liable (RTC v. Netcom); the provisions of safe-harbor that let ISPs avoid liability (17 USC 512); the limitation of vicarious liability to situations where the proprietor has a right and ability to control; the possibility that non-infringing use could save a technology with infringing uses (Betamax); the status of hyperlinks (Perfect 10 v. Amazon).

Add in codification of stronger versions of rulings they like such as Grokster, and you’ve got a prescription for utterly insane copyright law! As the LA Times’ Jon Healy puts it, the RIAA’s ACTA would turn ISPs into enforcers, when they should be simple conduits.

Let’s hope enough ISPs, tech companies, public interest groups, libraries, educators, and friends can keep this RIAA wishlist from becoming our nightmare. We should start a corresponding wish-list, extravagant but alternate-universe plausible, would include on the other side. I’d start with:

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.

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.

Standing up for student privacy, the University of Oregon has refused to identify “alleged infringers” at record labels’ request. Unlike most universities, which have identified students, U of O recently moved to quash the labels’ discovery subpoena in Arista et al. v. Does 1-17. Ray Beckerman links the documents at Recording Industry vs The People. See also Associated Press.

The university argues in its brief that the subpoena imposes an undue burden on the university “because it requires the University to affirmatively investigate potential copyright infringement by its users.” Particularly on a campus, where a single IP address might be shared my multiple roommates, visitors, or users of an open access point, the IP address will not uniquely identify a person. The U of O doesn’t want to go net-fishing, as the record labels do, turning over student names that might match their complaint, but says it would have to “undertake an investigation of all the individuals who were or who may have been present in the shared rooms in question at the time of the alleged acts of copyright infringement,” including interviews and forensic investigations, in order to turn over the right names. Even where the university can find the occupant of a single room, that identifies only the occupant, “not the identity of the user engaged in the alleged copyright infringement.”

The university should not be forced to do the record labels’ investigations for them. As I’ve argued in The Crimson and at Cornell, this demand conflicts with the mission of a university. As Oregon puts it, “The University … has both a legal and an ethical obligation to ensure that its students’ right to privacy is protected under the law and defended against intrusion.”

While Oregon’s other arguments are weaker, this one is enough. The Federal Rules of Civil Procedure proscribe subpoenas that subject their recipients to “undue burden” and the University of Oregon demonstrates that complying thoroughly and responsibly with this subpoena would place severe and unjustified burden on the educational institution.

In a welcome move of openness, C-SPAN has announced a liberalized copyright assertion policy:

C-SPAN is introducing a liberalized copyright policy for current, future, and past coverage of any official events sponsored by Congress and any federal agency– about half of all programming offered on the C-SPAN television networks–which will allow non-commercial copying, sharing, and posting of C-SPAN video on the Internet, with attribution.

…

The new C-SPAN policy borrows from the approach to copyright known in the online community as “Creative Commons.” Examples of events included under C-SPAN’s new expanded policy include all congressional hearings and press briefings, federal agency hearings, and presidential events at the White House.

This seems much smarter than going after members of Congress for blogging the network’s footage of Congressional hearings. C-SPAN often provides the only window into the workings of our government. Now, those windows are more clearly open.

Update: Thanks to Carl Malamud for publicly pressing C-SPAN to do the right thing here.

There’s a difference between copyright assertion and copyright ownership. Like William Patry, I would have defended Speaker Pelosi’s un-permissioned use of C-SPAN videos of Congressional hearings as non-infringing or as fair use. She, however, she chose to take them down and replace them (at some trouble or expense) with alternate videos from committee cameras in response to C-SPAN’s assertion.

As Speaker Pelosi’s story indicates, whether or not C-SPAN has a copyright in the minimal creativity of positioning cameras before a government hearing, its copyright claims prevented some people from using the streams. That chill operates as a law in itself, reducing the discourse around political events from what it could be if people felt secure in their non-infringing use of videos. C-SPAN’s announcement can reduce the uncertainty. We need not concede that the videos are protected by copyright to welcome a promise not to assert copyright claims.

What do anthropologists, teachers, cultural leaders, digital artists, technologists, and lawyers do when they get together? Well, a group of us convened in Maine earlier this winter to talk about cultural sharing: As western corporations seek out the traditional knowledge of farmers and healers in the developing world, or artists seek ways to share their art with corporate audiences, could we develop frameworks in which those from different cultural backgrounds could share knowledge on equal footing?

A few intense days of discussion developed a Cross-Cultural Partnership framework, using the legal infrastructure of a partnership agreement to enable the parties to describe their joint and separate goals in a common project. The framework provides a bare template, to which those working together must add descriptions of their aims and intentions. It’s our hope that the entanglement of the partnership form, requiring greater personal involvement than an arms’-length contract or license, will help parties to bridge different values and backgrounds.

We’re still in early draft and I welcome readers’ thoughts and comments. Excerpts from the template’s preamble follow the “More” link.

(more…)

The NYT runs a story on “Dueling Magicians”, describing Ricky Jay’s claims that Eric Walton has borrowed a few too many tricks. Walton’s reply: “This material has been out there…. The best magicians can do is take existing routines and sort of put our own spin on them.”

Interestingly, the subject of copyright never comes up — and that’s probably appropriate. While a magician’s patter while performing may be protectable expression, the tricks themselves are likely unprotectable ideas, methods, and processes. Of course that still leaves “selection and arrangement,” and it’s possible one act could mimic another so closely that it appropriated those expressive elements.

If it didn’t violate copyright, Walton’s act does seem to have tweaked some magicians’ ethical sense. Says Teller, of Penn and Teller:

“If an act hasn’t been prominently performed for a long time, and someone takes the trouble to bring it back from absolute death and put it into his act with fine touches, and which at least hasn’t been seen by a current generation,” he said, “the gentlemanly thing to do is say, ‘That’s his for now.’ ”

That said, he added, “magicians are not unique in their absence of creativity.”

I do hope he wasn’t referring to lawyers with that last jab.

Boing Boing links the clever short film [ airport ], made entirely from the common airport direction and instruction symbols.

Also cool is the AIGA page where the design association makes all the symbols available in EPS and GIF formats:

This system of 50 symbol signs was designed for use at the crossroads of modern life: in airports and other transportation hubs and at large international events. Produced through a collaboration between the AIGA and the U.S. Department of Transportation, they are an example of how public-minded designers can address a universal communication need.
…
These copyright-free symbols have become the standard for off-the-shelf symbols in the catalogues of U.S. sign companies.

Indeed, I’d suggest that the symbols’ freedom from trademark and copyright claims has directly spurred their widespread adoption, which in turn has helped to make them more universally understood. Score one more for the commons.

The information commons movement has great stories, and with the new book The Wealth of Networks, Yochai Benkler is establishing himself as another of its great storytellers.

At a book talk last night, Benkler outlined an economic history of information production. We’re moving from the age of industrial information production to one of social information production. Ever-faster computers on our desks let us individually produce what would have taken a firm to organize just a decade ago. Ever-further networks let us share that with the world as cheaply as storing it for ourselves. This “social production” is distributed and motivated by social relationships rather than market signals.

As Benkler contextualizes this activity, it’s not outside or in opposition to economics, but part of the economy. Commons production can be used by market-driven actors and by ideologically motivated purists. As it spreads, though, it enhances not only bottom lines but political freedom.

In an example near to my heart, Benkler showed the pressures e-voting vendor Diebold faced from the circulation of source code and internal emails. But in Benkler’s story, the chief heroes weren’t the lawyers wyho stepped up to defend against claims of copyright infringement — after all, it took a year before the court ordered Diebold to pay our costs and fees — but the distributed participants who published and kept the memos and code online in the face of legal threats. Even without the legal muscle of a New York Times, activists kept the story alive through social propagation.

Benkler’s slide set ended at a moment of conflict. The new modes of social information production threaten established industries and so industral infogiants fight back with old weapons: legislation such as DMCA, monopoly power in non-neutral networks, patent thickets. Yet Benkler is an optimist. He’s leaving future slides to be completed by the socially organized forces he celebrates. Here’s the wiki!