Deeplinks
Noteworthy news from around the internet.
Global Net Censorship in 2009: For The Children, for the Rightsholders
News Roundup by Danny O'BrienAcross the world, politicians perennially declare their intention to purge or blacklist websites they fear are damaging to children or the public welfare. The call for censorship hasn't stopped, despite many years of evidence that pervasive Net censorship is invasive, infeasible, and economically damaging. Nor is it likely to be stopped by today's Internet Safety Technical Taskforce Report on protecting children from internet predators, which reinforced that Net censorship is an ineffective solution to an exaggerated problem.
Accordingly, this year sees continuing plans by governments across the world to limit Internet traffic by content type, or expand existing systems of control. China heads the list of censoring states in the public consciousness. Last week, its Ministry of Public Security demanded action and an apology from search engines for failing to take "efficient" measures against "vulgar content". Baidu apologized, and Google committed to "working with the community to establish a healthy social climate". Smaller blogging sites like bullog.cn were simply shut down.
Even in a state with such pervasive government censorship infrastructure, asking search engines and ISPs to proactively identify and eliminate all pornography online is asking the impossible. Nonetheless, the Chinese government has once again publicly demonstrated its continuing political power to demand that any site or link disappear from servers operating within China's control.
China's Hong Kong Special Administrative Region lies outside the Great Firewall and China's mainland censorship system. Its government is currently completing public consultations on how it should update its regulation of obscene and indecent material for the digital age. (The consultation ends on January 31st).
The Hong Kong consultation is currently leaning towards a narrower censorship regime, similar to that adopted by many countries: it would not require mandatory censorship infrastructure, but rely on opt-in filters that can be used by end-users to stop minors from viewing such content. There is one new twist, however. One of the suggestions for publishers of offensive or indecent articles:
may involve limiting the bandwidth made available to such offenders or imposing temporary suspension or termination of service in case of contravention of contractual terms;
Regular followers of the global battle against "three strikes" policies will recognise this language as that suggested by IP rightsholders against alleged infringers.
It's not unexpected that when one group proposes controlling content online, others will pick up on the techniques they propose. And if there's one thing to look out for in the censorship rhetoric of 2009, it will be the ongoing efforts of IP rightholders to build multi-interest coalitions to advocate the same suite of blocking and filtering initiatives that we've seen elsewhere.
In Australia, Senator Conroy's proposed compulsory filtering system continues to advance, with recent comments indicating that his plans include controlling peer-to-peer and BitTorrent traffic. In the United Kingdom, Culture Secretary Andy Burnham hinted at plans for a universal categorisation system for the Net, covering both "harmful content" and "copyright".
The demands for Internet censorship never seem to go away. Neither do the obvious threats they pose to citizens' privacy, freedom of expression and online freedom. The danger is that there are now many groups with an interest in pervasive and pre-emptive control over online content. Who else will join 2009's global censorship chorus?
minilinks for 2009-1-12
miniLinks by Hugh D'Andrade- Mobile Phone Searches — Warrant Required?
Courts are weighing the question of whether searches of handheld devices during arrests require a warrant.
- Inside a DHS Travel File
Sean O'Neill made a FOIA request for his travel dossier kept by the Department of Homeland Security.
- An Analysis of Obama's DOJ Pick
President-elect Obama has selected David Kris to head the National Security division at the Department of Justice.
- P2P Meets Social Networking
LimeWire is adding social networking features that allow users to share files with trusted sources.
- Abolish the FCC!
Professor Lawrence Lessig wants the regulatory body to be dismantled
and replaced by a pro-innovation agency.
- Copyright Victory for Online Video
A federal judge ruled that the DMCA protects video-sharing sites like Veoh.
- Comcast Removes Block on File Sharing
Comcast has notified the FCC of its decision to cease blocking P2P traffic over its networks.
- Ebook DRM Provider Goes Dark, Books Disappear
Some books purchased from Fictionwise will be non-renewable come January 30, thanks to DRM from a company that is closing its doors.
- Animated Film Stuck in Copyright Limbo
Nina Paley's brilliant animated film, Sita Sings the Blues, can't get distribution because of copyright claims on the 1920s music it uses.
@EFF is on Twitter
Announcement by Tim JonesWe've just started an EFF account on Twitter, the popular social networking service. It's a bit of an experiment — we're not really sure how we'll wind up using it. But expect to see everything from breaking news to random trivialities to conversations between EFF members and supporters.
If you've got an account, follow us. If you've got a question or something to say, send us a @.
Larry Lessig on The Colbert Report
Deeplink by Tim JonesLast night, Larry Lessig, a close ally and former board member of EFF, chatted with Stephen Colbert about Lessig's new book Remix, and how America's broken copyright laws are criminalizing our kids:
Colbert: You say our copyright laws are turning our kids into criminals, because they're keeping kids from doing all the remixing they want of pre-existing art and copywritten material, right?
Isn't that like saying that arson laws are turning our kids into pyromaniacs?? They're breaking the law! You can't just throw the law out the window!
Lessig: "Totally failed war." Is that familiar to you?
Colbert: No. No. You're saying we need a surge?
Lessig: We tried the surge. For ten years we've been waging this war. Artists have not gotten any more money, businesses have not gotten any more profit, and our kids have been turned into criminals.
The whole thing is great - watch it!
Colbert also makes his personal stance on remix culture clear:
Colbert: Nobody should take my work and do anything with it that is not approved! Ever ever never ever take anything of mine and remix it! For instance, I will be very angry and possibly litigious if anyone out there takes this interview right here and remixes it with some great dance beat. And it starts showing up in clubs across America.
Lessig: Actually, we're joint copyright owners. I'm ok with that. You can totally remix this. I'm fine with that.
I did some Googling and was only able to find one remix so far, posted to the Colbert Nation forums by Quantumbalance. Presumably hundreds more are on the way.
Year-end 2008, Darknet Assumptions = True
Commentary by Hugh D'Andrade2008 was another tough year for proponents of digital rights management (DRM). As we have pointed out in years past, the infamous Darknet assumptions — three big reasons that DRM copy protection will never work, as set forth in 2002 by a team of Microsoft engineers — continue to be proven true by events.
Let's review the three Darknet assumptions one at a time, and see how they fared in 2008.
1. Any widely distributed object will be available to a fraction of users in a form that permits copying.
2008 may be remembered as the year online music went DRM-free. But other industries remain enamored with DRM, and in 2008 their customers continued to circumvent copy protections and make unauthorized copies for free.
When the PC game Spore was released, fans were outraged to find the program installed a separate program called SecuROM intended prevent copying of the game, and many protested by quickly posting cracked versions of the game. Spore soon became the most pirated game on the Internet — no surprise, since most new games are available almost immediately for free over P2P sites. Some users say downloading cracked copies is the only way the games will play properly on their systems.
Meanwhile, DVD ripper software remains popular (despite Hollywood's attempt to sue the software makers out of business). Even the supposedly unbreakable Blu-ray and DVD-HD DRM was easily cracked — twice in 2008 — by SlySoft.
And for all the effort that the rightsholders' lobby to restrict regular consumers' technology, what are the most sought after, and therefore most widely-distributed infringing files on underground sites? Screener DVDs, pristine copies of currently showing films which emerge from Hollywood itself.
2008 also saw a rise in the sharing of expensive textbooks online, showing that with enough incentive (and a lack of convenient ebook equivalents), individuals will spend hours scanning, OCRing and correcting thousands of physical printed pages.
2. Users will copy objects if it is possible and interesting to do so.
P2P filesharing continued to grow in popularity in 2008, and even showed signs of joining the mainstream. Pirate Bay claimed to be the world's largest P2P network, with over 22 million users. Comcast claimed that vast amounts of P2P traffic was choking their networks (leading them to surreptitiously block BitTorrent traffic).
While it's hard to find accurate figures for P2P usage, there is no evidence that filesharing networks are declining, and anecdotal evidence suggests the opposite. An informal student poll cited by an LA Times Blog found that 64% of students enrolled in a media business course regularly download entertainment through unauthorized sources. 43% were "not concerned" about getting caught.
3. Users will share copies as long as they are connected by high-bandwidth channels.
With the failure of DRM to prevent copying, and the continuing popularity of file sharing, that leaves only one way for the entertainment industry to try to prevent copying: filtering content at the point of connection to the Internet. That's why in 2008 we saw the RIAA and other industry voices dropping attempts to prosecute individuals and shifting towards calls for ISPs to filter content — as well as legislation with a similar purpose.
The rise of filtering may make sense to content industries, given the fact that the Darknet appears most vulnerable at point #3. But the filtering strategy relies on ISPs making a regular practice of inspecting packets coming across their networks, a practice that does not bode well for the right of privacy, as Professor Paul Ohm warned in a 2008 paper. ISP filtering will simply trigger a new privacy arms race, as users fortify their encryption methods and ISPs step up surveillance.
Then there is the worry that sharing of files could move off the net entirely. Already, the exponential increase in size and speed of digital storage is making it easier than ever for files to be traded outside of P2P networks, simply by passing flash drives hand to hand. ISP filtering could end up simply driving the Darknet further underground, making it harder than ever to track and monetize online sharing. As of January 2009, an external terabyte of storage costs around $180. Even relatively pessimistic estimates of the future cost of drives suggest that the terabyte drive will drop below $100 in the next three years. The next generation of file-sharers may be as likely to swap the entire corpus of modern music by hand as they will pick off individual songs online.
Like other attempts to stop digital files from doing what digital files do best — make copies — these attempts will do nothing to get artists, musicians or game designers paid. As EFF and others have been arguing for years, the relative ease of copying digital information is a fact of life in the digital world. Attempts to prevent widespread copying are doomed to failure. Rather than make criminals out of fans, we can work to create systems that help get artists paid while delivering content to more homes than ever before. That's a better way forward.
Calling All iPhone Developers: Support EFF's DMCA Exemption for Jailbreaking
Call To Action by Fred von LohmanniPhone application developers have until February 2, 2009 to submit comments to the Copyright Office in support of EFF's proposal for a DMCA exemption for iPhone owners who want to "jailbreak" their iPhones to gain the freedom to install applications of their choice. If you're an iPhone app developer, and you have a story about your frustration with Apple's chokehold over iPhone apps, please share it with the Copyright Office. Legalizing jailbreaking is a critical step in loosening Apple's grip and creating an open market for iPhone applications.
Apple uses "software locks" to prevent applications other than those sold from the iTunes App Store from running on the iPhone. The process of modifying an iPhone to run applications from other sources is known as "jailbreaking" (this is different from "unlocking," which generally refers to modifying an iPhone to operate with a different network carrier). Although hundreds of thousands of iPhone owners have already jailbroken their phones, Apple is likely to argue that the act of jailbreaking violates the DMCA's ban on circumventing software locks. In an effort to lift this legal cloud, EFF has proposed that the Copyright Office grant a 3-year exemption from the DMCA to permit jailbreaking.
Apple's shackling iPhone owners to the iTunes App Store has nothing to do with protecting Apple software from piracy. Instead, it's all about limiting competition and innovation on the iPhone platform. For example, Apple has refused to approve iPhone apps that compete with Apple's own software, such as Mail, Safari, and iTunes. Apple has also censored ebooks from the App Store. And developers of iPhone VoIP applications have also encountered inexplicable delays in app approval.
So, if you're an iPhone developer, and you are frustrated with Apple's iPhone app approval process, please consider sharing your experience with the Copyright Office and supporting EFF's proposed DMCA exemption for jailbreaking.
Fox News Censors Political Expression
Commentary by Corynne McSherryIn a scenario that has become depressingly familiar, a news organization has again used the Digital Millennium Copyright Act ("DMCA") to censor legitimate political speech. Citizen Media Law Project reports that YouTube cancelled Progress Illinois' YouTube channel after Fox News had sent three notices of copyright infringement demanding the takedown of Progress Illinois' videos. In the videos, Progress Illinois, a union-sponsored blog, apparently used short clips of Fox News coverage of local and national political events to set up political commentary about those events. Progress Illinois sent a counternotice asking YouTube to restore the video, but that won't happen for several days, i.e. long after public interest in the event Progress Illinois is talking about has waned.
We haven't been able to view the videos, but from what we've heard it seems likely that the uses in question were fair, and therefore noninfringing. If so, it is especially shameful that a news organization, which itself depends heavily on fair use to do its own reporting and commentary, should ignore fair use and thereby chill the free speech of others. Moreover, Fox News may have lost sight of its own best interest in another way. As CMLP put it:
Fox's heavy-handed response to Progress Illinois' use of its clips highlights the network's myopic view of the media ecosystem in which it operates. Rather than seeing Progress Illinois as a competitor attempting to steal website traffic from WFLD-TV, the network should be grateful that its political coverage is generating buzz in the blogosphere.
It's also disappointing that YouTube hasn't already restored the videos. When similar shenanigans took down campaign videos by Senators McCain and Obama during the presidential election season, we called on YouTube to take steps to protect online speech, among them human review of videos that have been subject to a counternotice, and immediate restoration of videos that are clearly noninfringing fair uses.
Fox News bears the primary blame here, but we've said it before and it bears repeating: the Internet can continue to revitalize our political lives in exciting and unforeseen ways—if, and only if, service providers, users and content owners all do their parts to protect free speech.
Apple Shows Us DRM's True Colors
Commentary by Richard EsguerraAt this week's Macworld Expo, Apple announced that by April, music from the iTunes Store will no longer be shackled by digital rights management (DRM). Finally, DRM is good and fully dead for digital music -- gone from CDs, gone from downloads, and largely dead for streaming.
Apple's announcement comes nearly a year after Amazon.com's DRM-free MP3 deals went live, demonstrating that the record labels were holding the DRM card until they could wring business concessions from Apple (in the form of variable pricing). This just underscores that DRM is not really about stopping piracy, but rather about leverage over authorized distributors.
In fact, an inventory of Apple's remaining DRM armory makes it vividly clear that DRM (backed by the DMCA) is almost always about eliminating legitimate competition, hobbling interoperability, and creating de facto technology monopolies:
- Apple uses DRM to lock iPhones to AT&T and Apple's iTunes App Store;
- Apple uses DRM to prevent recent iPods from syncing with software other than iTunes (Apple claims it violates the DMCA to reverse engineer the hashing mechanism);
- Apple claims that it uses DRM to prevent OS X from loading on generic Intel machines;
- Apple's new Macbooks feature DRM-laden video ports that only output certain content to "approved" displays;.
- Apple requires iPod accessory vendors to use a licensed "authentication chip" in order to make accessories to access certain features on newer iPods and iPhones;
- The iTunes Store will still lock down movies and TV programs with FairPlay DRM;
- Audiobook files purchased through the iTunes Store will still be crippled by Audible's DRM restrictions.
The majority of these DRM efforts do not have even an arguable relation to "piracy." And even where things like movies and audiobooks are concerned, DRM is not only futile, but will likely be counter-productive, making the "legitimate" alternative less attractive than the Darknet options.
This week's announcement is another step in the meltdown of DRM for music. But it is also a stark reminder that Apple remains at the forefront of employing DRM to shove competitors to the fringes and wrest control out of the hands of users.
UMG v. Veoh: Another Victory for Web 2.0
Legal Analysis by Fred von LohmannOver the holidays, video hosting site Veoh won another victory under the DMCA safe harbors, this time against Universal Music Group (UMG). The ruling should put to rest the argument that transcoding and other activities necessary for making content accessible on the web are not covered by the DMCA's Section 512(c) safe harbor for storing material on behalf of users (i.e., hosting user-generated content). This is good news not just for Veoh, but also for YouTube and every other site that hosts material uploaded by users.
Like many other companies that host content on behalf of users, Veoh has been bedeviled by copyright lawsuits. The copyright owners make the same argument in each of these suits: the hosting service should be liable for every infringing bit uploaded by naughty users and responsible for the full cost of policing for infringement. Fortunately, Congress enacted the DMCA's safe harbor provisions back in 1998 to protect service providers from exactly these risks, offering immunity from copyright damages to those who implement a notice-and-takedown system. In August 2008, Veoh won a big victory against adult video purveyor Io Group, relying on these provisions.
Veoh's latest victory was against UMG, which sued Veoh because Veoh users allegedly uploaded UMG music videos without authorization. The issue before the court was whether the DMCA safe harbor for hosting only covers the actual act of storing bits on a server, or whether it also covers related activities, such as:
- automatically transcoding video files uploaded by users into Flash format;
- automatically creating copies of uploaded video files that are comprised of smaller “chunks” of the original file;
- allowing users to access uploaded videos via streaming;
- allowing users to access uploaded videos by downloading whole video files.
Relying on the statutory language, as well as the legislative history, the court concluded that all of these activities are covered by the DMCA Section 512(c) safe harbor. Lots of online service providers will greet this ruling with relief. If the court had accepted UMG's arguments, every web host would lose the safe harbor as soon as it made web pages available to the public. The ruling should also help YouTube in its ongoing battle with Viacom, which also turns on the continuing strength of the DMCA safe harbors.
But the Veoh ruling also points out a surprising irony: while YouTube and Viacom are fighting their interminable litigation trench war, many interesting DMCA legal questions are being resolved in smaller, faster-moving cases involving companies like Veoh. At this rate, the highly-anticipated Viacom v. YouTube lawsuit may end up a footnote in the legal fights that define the rules governing user-generated content.
Al-Haramain Warrantless Spying Case Can Proceed
News Update by Kurt OpsahlToday, Chief Judge Vaughn Walker of the United States District Court in San Francisco denied the government's third motion to dismiss the Al-Haramain v. Bush litigation. The ruling means that the case can proceed and the court also set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information.
Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA).
In late 2007, the 9th Circuit Court of Appeals ruled that despite the disclosure, the "Sealed Document" itself was a state secret, but sent the case back to the District Court to determine whether the FISA law nonetheless allowed the case to go forward, under a doctrine called "preemption." Last summer, the Court had ruled that FISA does preempts the state secrets privilege, and gave Al-Haramain the right to amend its complaint to show that they were "aggrieved persons" within the meaning of FISA through evidence other than the Sealed Document. If they could do so, the case could proceed.
In today's ruling, the Court held that in their amended complaint the Al-Haramain plaintiffs had presented sufficient evidence that they were "aggrieved persons" and rejected the Government's claims to the contrary, saying: "Without a doubt, plaintiffs have alleged enough to plead 'aggrieved persons' status so as to proceed to the next step in proceedings . . ."
In order to allow litigation to proceed while keeping the secrets under wraps, the Court ordered the government to arrange security clearances for Al-Haramain's attorneys. The Court also ordered the government to allow Judge Walker to review the Sealed Document in his chambers by January 19th. Finally, the Court required the government to review the classified submissions in the case, and declassify as much as possible. The Court will schedule a hearing later this month to plan next steps.