Olympic Committee Takedown Shows Risks of Ill-Timed Take-Downs

Deeplink by Corynne McSherry

It’s never OK to use improper copyright claims to take down legitimate, non-infringing content, but such takedowns are particularly galling when they are timed to directly interfere with the impact of a political message. That’s what happened this week to the Free Tibet movement, and the situation illustrates the risks of a “shoot first, ask questions later” approach to copyright policing.

The 2008 Olympic Games have been marked by controversy relating to the human rights record of its host, China. Two days ago, the International Olympic Committee (IOC) added to the debate by demanding that YouTube block a video of a protest by Students For A Free Tibet. The demand appeared to be based on a bogus copyright infringement claim: the protesters had projected various images on the wall of the Chinese consulate in New York, and the video of the protest was titled “Beijing Olympics Opening Ceremony.”

This is not the first time the IOC has used an intellectual property claim to stomp on speech. Nor is it the first time a content owner has caught a dolphin in its DMCA takedown driftnet. But the political and time-sensitive nature of this video made this “mistake” particularly appalling.

The blogosphere reacted with outrage, and rightly so. EFF made some inquiries of our own (we understand YouTube did so as well) and the IOC ultimately withdrew the complaint. That is a good thing. But this takedown highlights a larger problem. It takes just seconds to have a video taken down, but over two weeks to get a video put back up. And YouTube’s hair-trigger content verification program has made takedown even easier and faster—content owners can rapidly create lists of videos for takedown, and then send a takedown demand with a couple of additional clicks.

If IOC had not withdrawn its notice, here’s what would have happened in this case: the protesters’ DMCA counter-notice would have started the clock running and, if the IOC didn’t sue within 10-14 days—which of course it wouldn’t have, because it didn’t have a claim—the video would be restored. But that wouldn’t happen until after the 2008 games were over, and the delay would inevitably lessen the video’s political impact. As political organizers of all stripes know, timing is everything.

The DMCA was not designed to help content owners silence legitimate speech, even temporarily. But that’s exactly what happens when content owners don’t bother to form a good faith belief that the material they target is actually infringing. Shame on the IOC for failing to meet its minimal obligations.

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Arista v. Does 1-21: What's at Stake for the Rest of Us

Deeplink by Fred von Lohmann

As if it weren't bad enough that the RIAA's lawsuits against file-sharers are futile, unfair, and immoral [PDF], they are also beginning to distort the law. In many of these cases, the recording industry is urging judges to accept controversial legal theories on the way to busting file sharers. It's not clear whether this is a tactical effort to cut legal corners to save money, or a strategic effort to build lower court precedents for use in other cases. Either way, these are frequently extremely unfair fights (such as in Atlantic v. Howell, where the defendant can't even afford a lawyer), and thus bad vehicles for making controversial new law. The judges simply aren't hearing both sides.

EFF is trying to do something about that.

Earlier this week, EFF filed an amicus brief [PDF] in Arista v. Does 1-21, a case against 21 Boston University students whose identities are being sought through a subpoena to the university. One of the anonymous students filed a motion to quash the subpoena, which is now pending before Judge Gertner in Boston. EFF filed the amicus brief on Monday, which was accepted by the judge yesterday.

EFF's brief in Arista v. Does 1-21 focuses on two issues that have been the subject of several EFF briefs in the past:

First Amendment Protection for Anonymous Speech: In many other cases, EFF has long fought hard to establish a baseline of constitutional protection for anonymous speech online. We've been successful, with courts recognizing that, where anonymous speech is concerned, you don't get to unmask someone just by having your lawyers file a meritless lawsuit in order to issue a subpoena. Instead, courts must make a preliminary inquiry to ensure that the suit has merit.

The RIAA, however, insists that their boilerplate complaints are enough to unmask anonymous file-sharers, even when completely unsupported by any specific evidence about the target. That's just flat wrong, as other courts have recognized [PDF]. But the RIAA keeps making the argument, without mentioning the First Amendment standard.

It may well be that the recording industry can meet the constitutional threshold here (as they have in other cases where they were forced to come forward with the evidence gathered by MediaSentry). But it's critical that the precedents don't get distorted to somehow treat copyright claims as exempt from the constitutional test that applies to every other sort of anonymous speech online. To understand the importance of consistently applying the right standard, imagine how this would work in a future case where a copyright owner was trying muzzle or intimidate an anonymous fair user (see, e.g., OPG v. Diebold, where Diebold tried to use bogus copyright claims to censor leaked documents off the Internet).

Distribution and "Making Available": In all of these cases, the recording industry is arguing that simply having a file in a shared folder makes you an infringer because you are "distributing" the file, even if no one has ever downloaded it from you. Huh? That sounds like attempted distribution, at best. That's not the law (and the Department of Justice has thus far failed in its efforts to change the Copyright Act to reach mere attempts).

This "making available" theory is wrong in two ways. First, as we've argued in other cases, distribution under the Copyright Act doesn't apply to electronic transmissions. Second, even if it does, the copyright owner has to prove that an actual distribution occurred -- it's not enough to say it could have happened.

This doesn't leave the recording industry without a weapon -- everyone agrees that file sharing involves the making of unauthorized copies of songs. It's just that the recording industry doesn't want to have to go to the trouble of gathering and introducing evidence of copying in court (like everyone else does). It's much easier to rely exclusively on MediaSentry's downloads from each defendant -- that way there is no need to know anything about the defendant.

The trouble with this is the precedent it sets for the future. Already, the recording industry has sued XM as a "distributor" because they transmit satellite radio to subscribers who have recording devices. The movie industry also pressed this "making available" theory against Google [PDF], reasoning that just linking to something online "makes it available." Fortunately, courts in these high profile cases have not taken the bait. But if the RIAA racks up a string of contrary precedents in file sharing cases, the next lawsuit against XM or Google might come out differently.

The trouble for those who are hoping to prevent these kinds of distorted precedents is that it's hard to keep up with all of the more than 20,000 lawsuits (and litigation threats) that have been brought by the recording industry. With any luck, one of the judges will sit down and write a strong opinion letting the RIAA know that it can't use overmatched file-sharers to reshape the law to their liking.

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New Study on Copyright and Creativity from the Center for Social Media

Deeplink by Hugh D'Andrade

Free video hosting sites like YouTube, Yahoo! Video, and Daily Motion are enabling creators to share video instantly with millions of viewers around the world. A new report from the Center for Social Media takes a close look at these user generated sites, and finds that there is much more at stake than the SNL and Daily Show clips often referenced in the usual Viacom v. YouTube debates on copyright infringement.

Recut, Reframe, Recycle shows that far from simply uploading content, more and more users are remixing prior works to create new (and often surprising) works of transformative creativity. Users are borrowing from film, television, and pop culture at large to create parodies and satires, commentaries, pastiche, quotations, as well as archives of important work that cannot be shown due to copyright restriction. By illustrating each category with some of the best examples of user-generated content from the past few years, the study attempts to clarify "the difference between quoting for new cultural creation and simple piracy."

The study also finds that this lively new form of participatory popular culture exists in a precarious grey zone of uncertainty. The legal tradition of fair use protects many uses of copyrighted material to create new works, but the public remains largely unsure of its fair use rights -- in fact, a recent study found that ignorance about the limits of copyright law was hindering efforts at media literacy education. Meanwhile, large corporate content providers continue to use DMCA takedown notices in ways that (whether deliberately or inadvertently) are censoring many fair uses off the Internet. (EFF has published a “best practices” guide that would protect fair uses from being caught in DMCA takedown dragnets.)

The authors of the study point out that these new forms of creativity are not going away, and are, in fact, harbingers of a new medium:

The effervescence of this moment at the dawn of participatory media should not be mistaken for triviality. The practices of today’s online creators are harbingers of a far more interactive media era. Today’s makers -- feckless, impudent, brash, and extravagant as they often are -- in fact are the pioneers of an emerging media economy and society. Recognition of the importance of fair use, within the copyright law toolkit for cultural creation, is both prudent and forward-looking for those concerned with maintaining an open society.

The study recommends the establishment of a “blue ribbon panel” to establish a set of “best practices” principles — not unlike the Documentary Filmmakers’ Statement of Best Practices in Fair Use which the Center for Social Media also spearheaded last year.

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Music Industry Pressures EU Politicians for Filtered Internet

Deeplink by Danny O'Brien

The music and film industry continues to pursue its idea of a politically "corrected" Internet - one that they imagine could protect their old business models without requiring any extra costs on their part.

This time, the fix is Internet-wide filtering. In a memo to European policy-makers, the International Federation of Phonographic Industries has called upon ISPs in Europe to filter the content sent across their networks, block protocols used by their customers, and cut off access to persistently infringing sites from the Net (you can read their full memo here). Left unsaid in it was the obvious implication: if ISPs aren't willing to comply, EU regulators should force the ISP's hand.

Disturbingly, European politicians seem open to the idea of ISPs policing and interfering with their customers' communications on behalf of rightsholders. Last month, the European Parliament's Committee on Industry, Research and Energy (ITRE) tabled an amendment to a Parliamentary report that changed an innocuous request to "rethink the critical issue of intellectual property", into a call for "internet service providers to apply filtering measures to prevent copyright infringements".

This week, EFF Europe sent a letter to the members of the Culture and Education Committee, whose original report the ITRE Commitee was amending. We pointed out that some of the groups hardest hit by blanket filtering measures Internet would be artists and teachers themselves. Pre-emptive blocking and filtering by machines could make no evaluation of whether the transmitted content is permitted by the limitations and exceptions carved out for those groups in copyright law. IFPI says that all "unlicensed" files should be blocked: in other words, researchers using the quotation exception, teachers using education exceptions, or artists using their rights to parody or pastiche, would have to beg for a license or find their conversations banned from the Net.

Building such filtering and censorship tools is not just bad for creators and education, though; it's bad for society. Any country that has a centralized system in place to pry into all its citizen's private communications, and then pre-emptively sever those which it deems "unsuitable", creates both a very disturbing precedent, and a dangerously powerful tool vulnerable to misuse. Perhaps the music industry's European lobbyists have lost sight of the serious collateral damage their proposals would cause, but European citizens and their elected policy-makers should not.

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