Overbroad Censorship & Users

A lot of good stuff has been written about why the currently pending Stop Online Piracy Act (SOPA) is bad for the future of the internet, the technology industry, international human rights, security, free speech [pdf], privacy, blind people and jobs. One thing I haven’t seen is a succinct description of the problems of site-wide censorship when it comes to ordinary, non-infringing users. So... I’ll try to do that here.

SOPA’s unit of analysis is a “site or portion thereof” See Section 102(a). By contrast, if a portion of a site is infringing, SOPA’s unit of censorship is everything at the domain name. See Section 101(17), 102(c)(2)(B) and 102(c)(2)(A).

The harm that does to ordinary, non-infringing users is best described via a hypothetical user: Abe. Abe has never even so much as breathed on a company’s copyright but he does many of the things typical of Internet users today. He stores the photos of his children, now three and six years old, online at PickUpShelf* so that he doesn’t have to worry about maintaining backups. He is a teacher and keeps copies of his classes accessible for his students via another service called SunStream that makes streaming audio and video easy. He engages frequently in conversation in several online communities and has developed a hard-won reputation and following on a discussion host called SpeakFree. And, of course, he has a blog called “Abe’s Truths” that is hosted on a site called NewLeaflet. He has never infringed on any copyright and each of the entities charged with enforcing SOPA know that he hasn’t.

And yet, none of that matters. Under SOPA, every single one of the services that Abe uses can be obliterated from his view without him having any remedy. Abe may wake up one morning and not be able to access any of his photos of his children. Neither he, nor his students, would be able to access any of his lectures. His trove of smart online discussions would likewise evaporate and he wouldn’t even be able to complain about it on his blog. And, in every case, he has absolutely no power to try to regain access. That may sound far-fetched but under SOPA, all that needs to happen for this scenario to come true is for the Attorney General to decide that some part of PickUpShelf, SunStream, SpeakFree and NewLeaflet would be copyright infringement in the US. If a court agrees, and with no guarantee of an adversarial proceeding that seems very likely, the entire site is “disappeared” from the US internet. When that happens Abe has NO remedy. None. No way of getting the photos of his kids other than leaving the United States for a country that doesn’t have overly broad censorship laws.

There are millions of US internet users just like Abe. If you are one of them, I urge you to make your voice heard by going to AmericanCensorship.org or EngineAdvocacy.org/voice.

* All names of services meant to be fictitious.


Images are public domain, sourcing here.

DMCA Rulemaking: The Caveat

Many are celebrating the release of the Copyright Office's new set of 17 USC 1201 (a)(1) exemptions which allow for the circumvention of certain technological protections to make lawful uses of copyright protected works. They include circumventing:

1. DVD protection for copying short portions for commentary or criticism;
2. mobile phone programs for interoperability (such as adding a program that the operator doesn't want added);
3. mobile phone programs for network interoperability (such as allowing use on another operator's network);
4. video games for testing security flaws;
5. computer programs protected by obsolete dongles; [This one is particularly satisfying to me as I helped the Internet Archive get this way back in 2003.]
6. literary works when no edition allowing read-aloud exists.

I'm paraphrasing and over-simplifying, so take a look at the actual determination of the Librarian of Congress for more (and more accurate) detail.

While these are significant steps forward in both the specific "classes" exempted and the more reasonable scope of "class" that the Office continues to embrace, the celebration misses the fact that the vast majority of us will not be able to take advantage of the new exemptions. For example, the first exemption that allows for the circumvention of DVD access protection for educational and other uses of short clips clearly envisions students and media professors copying and short bits of films for use in criticism and discussion. This is a good step forward but its actual usefulness is hampered by the fact that the tools these students and professors might use to make that (now) lawful fair use are still illegal under 17 USC 1201 (a)(2) and/or 17 USC 1201 (b). The exemptions only apply to the actual act of circumventing (17 USC 1201 (a)(1)) but not any of the tools needed to accomplish the circumvention (17 USC (a)(2) and 17 USC 1201 (b)). So unless the students can somehow circumvent the DVD protections all by themselves, what they have received is a theoretically appealing but practically useless exemption. For students to actually be able to reasonably and legally make use of DVDs and cell-phone owners to exercise the ordinary "ownership" rights in their phones we need exemptions from (a)(2) and (b). Those are not forthcoming.

The exemptions won today are big steps forward and many were hard fought and well-won by the Electronic Frontier Foundation. The EFF deserves our thanks, congratulations and donation, but we still have a long way to go.

Update: El Pedro points out in the comments that there may be non-circumventing ways to record from DVD.

Copyright Issues Ripe for Reform

Wrote a post on the Tools of Change in Publishing blog. Some thoughts about important issues in copyright related to ebooks. Comment there if you can.

Google Book Search Hearing

Full video is up. Am looking forward to seeing it all. Cnet has a story with some quotations from it.

Google + Authors + Publishers + Libraries

After a long negotiation, along with the Authors Guild, and the Association of American Publishers (AAP) on behalf of a broad class of authors and publishers worldwide, Google announced last week that we've reached an agreement that will greatly expand online access to millions of in-copyright books in the U.S. If approved by the court, the agreement will also resolve the two U.S. Google Book Search lawsuits.
Here are a few links worth reading: Google blog post, joint press release, executive summary [pdf] and Google site.
Information for authors and publishers is at the Settlement Administration site.

FOIA and Copyright

Another problem with crown copyright comes to light as British Columbia uses it to restrict distribution of FOIAed documents. Before you feel all superior (if you are an American), though the US doesn't have crown copyright (or federal copyright in the US in most situations), the federal government may be able to claim copyright abroad and states may also claim copyright. So this also could have happened here.

PS A good article on US government copyright is Becky Dale's column "Can The Government Copyright Public Records?"

Update: Only four days later comes news from Boing Boing that the State of Oregon is asserting copyright in the arrangement, compilation and notes of its revised statutes. Ug.

Pam Samuelson's Project

Professor Pamela Samuelson has an audacious project to re-imagine copyright law. She herself calls copyright reform "a fools errand" before eloquently justifying her project. The first results of her struggle are now online and worth reading. In trying to outline the fundamental aspects of an intellectual copyright regime and filling it in with the current copyright law, she gives a wonderful description of the Copyright Act in under 250 words.

1. subject matter: works of authorship
2. eligibility criteria for specific people and works:
a. who is eligible: the author (but special rule for works made for hire)
b. qualitative or other standards: original; fixed in a tangible medium; not a useful article
c. procedures: rights attach automatically as a matter of law from first fixation in a tangible medium; deposit is required but not as condition of protection; notice and registration are advisable for effective protection; registration necessary for US authors to bring infringement suits
3. exclusive rights: reproduce the work in copies; make derivative works; distribute copies to the public; publicly perform the work; publicly display the work; importation; attribution and integrity rights for works of visual art
4. duration: life of the author plus 70 years; 95 years from first publication
5. limitations and/or exceptions to those exclusive rights, including fair use, first sale, certain educational uses, and backup copying of computer programs, among others
6. infringement standard: infringement occurs when someone violates one of exclusive rights, and the activities do not fall within one of the exceptions or limitations to copyright; usual test applied for non-literal infringements is whether there is substantial similarity in protected expression that the alleged infringer appropriated from the copyright owner
7. remedies: preliminary and permanent injunctive relief; money damages; destruction of infringing copies; attorney fees; costs; criminal sanctions

Samuelson, Pamela, "Preliminary Thoughts on Copyright Reform" Utah Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=1002676 (footnotes ommitted).

Two Library Happenings

Both very happy. Paul Courrant, the University of Michigan's University Librarian, is blogging and Kenneth Crews is going to be Director of Columbia University Library's Copyright Advisory Office. What is a "Copyright Advisory Office?" From the release:
In his new position, Crews will advise on the application of copyright policies to teaching, research, and scholarly communication within the University. His responsibilities will include educating faculty, staff, and students about copyright through web-based information, publications, training programs, and conferences.
Two smart library folk. Glad that I'll get to hear them more.

Copyright Registrations = Copyright Free

The U.S. Copyright Office has confirmed that U.S. Copyright Registrations are in the public domain. Marybeth Peters, the Register of Copyrights, writes: "There is no copyright protection in these records -- they are in the public domain." This is a good clear answer for which Marybeth, Carl Malamud of Public Resource and Peter Brantley of the Digital Library Federation should be heartily thanked.
In celebration (and thanks) I have put one of their Copyright Registration feeds on this blog. Already it has payed dividends with my discovery of an assignment of a security interest in "Four Dogs Playing Poker" between Mercantile National Bank and International Entertainment Corporation. More history of the work is available from the Copyright Office. I had thought that "Four Dogs Playing Poker" was the title of the famous painting of four dogs playing poker, but in fact, it isn't. What I was thinking of is a series of sixteen paintings by C. M. Coolidge commissioned to advertise cigars. Maybe the subject of the assignment is the movie by that name (a thumbnail of its poster is incorporated here, click on the image to purchase the DVD) but that's unclear from what I could find.

Diebold first 512(f) Loser

Yesterday Judge Fogel of the Northern District of California handed Diebold,
the maker of voting machines, the first bill for damages under the "knowing
material misrepresentation" clause of the notice and takedown provisions of the
DMCA (17 USC 512(f)). Diebold had sent Section 512 notices to several ISPs
requesting the takedown of a series of internal Diebold e-mails critical of its
voting machines that were published to the Internet. href="http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/20040930_Diebold_SJ_Order.pdf">Judge
Fogel ruled that a) the declaratory relief that Plaintiffs wanted that the
publication was not infringement was moot because Diebold stated that it would not sue; b) publication of at least some of the e-mails was fair use and not copyright infringement; c) Diebold knowingly materially misrepresented the facts in its notices (applying an actual knowledge, reasonably should have known or would have had no substantial doubt had it been acting in good faith, standard); and, d) Diebold must pay attorney's fees and costs of the Plaintiffs. Fogel also ruled that Plaintiff's claim for tortious interference with contract was preempted, am still chewing on that.

Still, good decision. Another gem is here:

The fact that Diebold never actually brought suit against any alleged infringer suggests strongly
that Diebold sought to use the DMCA.s safe harbor provisions.which were designed to protect
ISPs, not copyright holders.as a sword to suppress publication of embarrassing content rather
than as a shield to protect its intellectual property.

Congratulations and hearty thanks should go out to the EFF, the two Swarthmore student plaintiffs who posted the archives, IndyMedia (who linked to the archives) and the Online Policy Group (a plaintiff that co-locates IndyMedia's servers).

Saving Software

The fifth 2003 DMCA exemption hearing happened in L.A. today. As Brewster Kahle has written, his presentation was about saving software, I hope he succeeds.

Enter the copyright terrorists

Findlaw has the RIAA's new set of complaints. The introductions allege that the students "hijacked an academic computer network ...". I was just beginning to wonder when some enterprising lawyer would switch the language of copyright infringement from the quaint but scummy sounding "piracy" to the much more sinister and terrorist-sounding "hijacking." I need wonder no more.