For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it’s welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren’s lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying “PRL owns all right, title, and interest in the original images that appear in the Advertisements.” Other hosts pull content “expeditiously” when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don’t counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing’s archives, in a pattern the press has nicknamed the “Streisand Effect.”

We use the term “chilling effects” to describe indirect legal restraints, or self-censorship, because most cease-and-desist letters don’t go through the courts. The lawyers (and non-lawyers) sending them rely on the in terrorem effects of threatened legal action, and often succeed in silencing speech for the cost of an e-postage stamp.

Actions like BoingBoing’s use the court of public opinion to counter this squelching. They fight legalese with public outrage (in support of legal analysis), and at the same time, help other readers to understand they have similar rights. Further, they increase the “cost” of sending cease-and-desists, as they make potential claimants consider the publicity risks being made to look foolish, bullying, or worse.

For those curious about the underlying legalities here, the Copyright Act makes clear that fair use, including for the purposes of commentary, criticism, and news reporting, is not an infringement of copyright. See Chilling Effects’ fair use FAQ. Yet the DMCA notice-and-takedown procedure encourages ISPs to respond to complaints with takedown, not investigation and legal balancing. Providers like BoingBoing’s Priority Colo should also get credit for their willingness to back their users’ responses.

As a result of the attention, Ralph Lauren apologized for the image: “After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

May the warming (and proper attention to the health of fashion models) continue!

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 House Judiciary Committee has been scheduling some interesting hearings lately, including one next week on ICANN policies: The Expansion of Top Level Domains and its Effects on Competition. Last week, they heard about Google Book Search:Competition and Commerce in Digital Books.

Perhaps the strangest reports out of last week’s hearing were those on the Register of Copyrights’s statement, in which she asserted that the settlement “is tantamount to creating a private compulsory license through the judiciary [and that] such decisions are the domain of Congress.” The Register urged that courts shouldn’t endorse “settlements that come so close to encroaching on the legislative function.”

Now while I suggested on my first read of the settlement that the registry and clearinghouse “look[ed] like private implementations of infrastructure you’d really expect government to provide,” government has thus far failed to do so (no Orphan Works legislation), while private actors have moved them much closer. That’s a reason to bemoan government’s pace and the capture of public copyright law by special-interest lobbying, perhaps, but not to stand in the way of private cooperation toward greater access.

The great absurdity in the Register’s complaint is to label the settlement a “compulsory license.” A compulsory license, in the few places they exist in copyright law, is mandatory on the copyright holder. A songwriter cannot object to a new arrangement and recording that does not “change the basic melody or fundamental character” of a previously recorded work — her only right is to recover the compulsory “cover” license fee or to negotiate a different arrangement. The Google settlement, by contrast, offers rights-holders options: the right to opt-out of the settlement entirely, leaving the defaults of copyright law in place, or the ability to participate in the settlement and request different treatment of their works. Authors need only step up and say something if they prefer copyright’s defaults to Google’s.

So while I’d love to see the settlement opened even further, to participation from other digitizers and other representatives of the public interest, this particular complaint from the Register strikes off. If government can’t facilitate access to accumulated human wisdom, it should get out of the way (while keeping watch for anticompetitive effects) while others do. Instead, the Register’s intervention here sounds like the petulant complaint of one not invited to the settlement table.

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.

Every three years, as mandated by Congress in Sec. 1201(a)(1)(C) of the Digital Millennium Copyright Act, the Librarian of Congress and Register of Copyrights conduct a rulemaking on exemptions from the DMCA’s prohibition on circumvention of access controls protecting copyrighted works. This year’s revival opened in Stanford, then moved here to Washington DC for a three-day run.

Now Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works may not sound like a Broadway hit, but there was plenty of drama (for the copyright geek, at least). I live-tweeted and Identi.ca-posted the hearings, and offer a few highlights from the show here:

As at past runs (2000, ‘03, and ‘06), DVD’s CSS technological protections were the star attraction. Film and media educators, librarians, filmmakers, and creators of transformative works argued that they should be permitted to circumvent CSS to take DVD clips for fair and non-infringing purposes: film studies, media literacy, classroom teaching of the law or medical ethics, creation of commentary in the videographic “language” of the works to which they respond.

Rebecca Tushnet, law professor and founder of the Organization for Transformative Works called the anticircumvention rule a modern-day literacy test or poll tax: law-abiding creators are chilled by the welter of rules seemingly designed to privilege some users over others. Francesca Coppa and Tisha Turk showed the direct impact of the circumvention rule on women and minority creators offering alternative readings of mainstream culture, while educators noted that a too-narrow exemption might let teachers make art with media clips but forbid students from using the same techniques after graduation.

The hearings’ setup is a perfect theater of the absurd: First, the LOC is authorized to exempt non-infringing users of “classes of works” from the circumvention prohibition, but not to legalize the tools needed to circumvent access controls (which are prohibited by 1201(a)(2)). That leaves all participants dancing around the question of how users are to exercise their rights, if granted — “surreal,” as Jon Band put it. Likewise, we all ignore the ready availability of DeCSS and the near-instant posting of DRM-free versions of anything issued in “protected” format.

Then Steve Metalitz, representing a Group of 9 copyright industries, argued that the proponents of an exemption were taking the law too seriously if they were being chilled by the remote threat of an anticircumvention lawsuit. Was he really advocating that we disregard the law??

The proceedings jumped the line to farce when Fritz Attaway and a colleague from the MPAA pulled out a cinematic demonstration of just how to camcord a movie from your television screen. (You start with a $900 HD video camera, a tripod, a flat-screen television, and a room that can be completely darkened.) Tim Vollmer captured the whole scene on a video of his own. Mind you, this is the same industry that has lobbied to make a crime of camcording in movie theaters, telling us how to frame shots properly from the television. (As Fred Benenson notes, they’re also demonstrating DRM’s impossibility of closing the “analog hole.”)

Finally, Bruce Turnbull, representing DVD CSS-licensing body, DVD-CCA, said we were all in the wrong place (LOC, rather than Congress) talking about the wrong subject. 1201 isn’t a copyright protection, but a technology protection, aimed at protecting the “commercial viability of the technological protection measure.” This may be operationally true, but it would sure surprise many in Congress who put anticircumvention into Title 17.

Other acts in the drama included Chris Soghoian’s argument for access to media after authentication servers go defunct; and Alex Halderman and Blake Reid’s arguments that security researchers should be able to investigate the hazards of DRM to personal computer security. Up today: eBooks, dongles, and cell phones.

Other reviews: Pat Aufderheide, Rebecca Tushnet, and Temple’s Media Education Lab live twitter-stream

As I learned via Twitter this morning (thanks, Tim O’Reilly), the Authors’ and Publishers’ class counsel have reached a proposed settlement of their lawsuits against Google’s book scanning program. Early press reports say Google will pay about $125 million.

There are some fascinating pieces to the settlement agreement, including some that look like private implementations of infrastructure you’d really expect government to provide: a registry of copyrighted works, a quasi-orphan-works safe harbor for good-faith use of works believed to be in the public domain. There are provisions for school and library access, and a marketplace, a clearing-center for Google to share revenue from commercial uses it makes.

I worry about the effects on competition — Google’s high settlement payments are barriers to entry by anyone else. Though it’s plausible no one had the resources or spine to compete with Google regardless, a judicial determination that the use was fair would have enabled more competition in parallel and distinct library offerings. Now, Google cements its advantage in yet another field. (And of course, with the circularity of “effect on the market” testing, makes it harder for someone else to claim fair use.)

More to come on closer reading…

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.

The Federal Circuit held this week in Jacobsen v. Katzer, that Java Model Railroad Interface author Robert Jacobsen’s release of software under the Artistic License gave him the right to sue for copyright infringement those who distributed modified JMRI software without obeying the conditions of its license. The decision confirms an important cornerstone to many of the open source and free software licenses: Taking the work without accepting its license’s conditions is an infringement of copyright, subject to all of copyright’s enforcement options.

Users of free and open source licenses, or Creative Commons licenses for non-software works, offer their works to the world on a non-exclusive basis on a set of conditions. In the Artistic License, those conditions are:

provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following:

a) place [the user's] modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include [the user's] modifications in the Standard Version of the Package.

b) use the modified Package only within [the user's] corporation or organization.

c) rename any non-standard executables so the names do not conflict with the standard executables, which must also be provided, and provide a separate manual page for each nonstandard executable that clearly documents how it differs from the Standard Version, or

d) make other distribution arrangements with the Copyright Holder.

If you accept the conditions of the public license and follow them, as by making source code available and giving clear notification of changes from the original, your reuse of the original copyrighted work is licensed, no further action required. If you can’t work with the conditions of the public license, you’re always free to contact the copyright holder to negotiate alternate terms. What Jacobsen v. Katzer confirms, however, is that you’re not free to disregard the license conditions and yet claim your redistribution of the copyrighted work is non-infringing.

License v. Contract: Katzer, the taker who didn’t follow license terms, had argued that JMRI could sue only for breach of contract. The court explicitly disagreed. This is significant for licensors because copyright infringement is both simpler to prove: show unlicensed copying and substantial similarity to the original, rather than acceptance of a contract and damages from breach of its terms; and offers benefits such as statutory damages (no proof of loss required) and presumptions of “irreparable harm” that let the licensor get a preliminary injunction against continued infringing distribution.

Economics: The decision recognizes the economic advantages to choosing non-monetary forms of “compensation” for use of a publicly licensed work: “Copyright licenses are designed to support the right to exclude… The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.” “The attribution and modification transparency requirements directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce.” The law does not mandate these terms by default, but if a copyright holder chooses to apply them to make his works more readily available on non-dollar terms, the law will enforce them.

Anti-FUD: Finally, the decision should help clear some of the “fear, uncertainty, and doubt” that opponents of free software try to sow around free and open source licenses. They may rarely have been tested in court because parties prefer to negotiate better solutions between themselves, but when tested, the licenses do hold up, to enforce the terms their users intend.

See also NYT, Lessig, WSJ.

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.