Spam and Antispam

Posted by Annalee Newitz

Last week, "Internet marketer" Scott Richter got off with a slap on the wrist in one of the most high-profile spam cases in recent months. New York attorney general Eliot Spitzer sued Richter, president of OptInRealBig.com, back in December for sending deceptive junk email, and promised to seek millions in damages. But in a somewhat mysterious move, Spitzer wound up offering a settlement in which Richter paid only a $40,000 fine plus $10,000 for legal fees. Richter will also have to provide Spitzer's office with copies of all emails that he sends out in the future.

In this case, OptInRealBig served as a middleman between an alleged spam company called Delta Seven Communications and another company called Synergy6. Experts have speculated that Richter's middleman status made it hard to prove that his company had been spamming. Cases against Delta Seven and Synergy6 are still pending.

Also still pending is Microsoft's parallel suit against Richter, which also accuses him of spamming. Of course, Microsoft's motivations for suing Richter are probably more complicated than outrage on behalf of all those poor HotMail and MSN users who had to wade through his alleged spam.

You see, Microsoft is using Bonded Sender, a program that would supposedly separate "legitimate" Internet marketers and bulk mailers from spammers. Working with a California company called IronPort, Microsoft will gain access to a white list of bulk mailers who have paid a fee and demonstrated that they have no record of spamming. Companies participating in the Bonded Sender program will be allowed to send their email ads to HotMail and MSN users, along with thousands of other ISPs.

Given Microsoft's investment in IronPort's Bonded Sender program, it seems they may soon be in the business of serving as middlemen between email marketers and their webmail users. In other words, it sounds like the software megacorp is about to start competing with Richter. Of course, Microsoft could always call off its suit if Richter claims to have been rehabilitated -- especially if he manages to become a Bonded Sender!

In the spam wars, sometimes it's hard to tell the spammers from the antispammers.

The situation gets even more complicated when you consider the fact that IronPort does more than pick and choose winners in the junk email business. Bonded Sender will punish most the people who aren't even sending advertisements -- groups like Internet activists MoveOn.org, who send out millions of emails to alert their members to upcoming political events and issues. If these groups don't pay their Bonded Sender fees, ISPs like HotMail will likely spamblock their email -- regardless of whether users have specifically opted in to receive it. When it costs money to "go legit" as a bulk mailer, the biggest losers won't be people like Scott Richter. They will be nonprofit organizations, activists, and individuals who rely on email lists to talk to their communities.

[This post was modified slightly on 8/3/2004.]

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Props to The Carter Family

Posted by Fred von Lohmann

Turns out Woody Guthrie lifted the melody of "This Land Is Your Land" essentially note-for-note from "When the World's on Fire," a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song. Here's a short snippet (380k mp3) of the song (the song can be found on the box set, The Carter Family: 1927-34). You don't need to be a musicologist to hear what we're talking about.

Now we've got nothing against Woody's borrowing. In fact, it's a part of the "folk process" that Woody himself championed. I can't imagine that The Carter Family minded.

But in the letter threatening copyright litigation over JibJab's animated political parody, "This Land," Ludlow's lawyer goes out of his way to attack JibJab for copying "the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song."

Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of "This Land Is Your Land" doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask.

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Update on JibJab's "This Land"

Posted by Fred von Lohmann

As mentioned earlier this week, Ludlow Music Inc., owner of Woody Guthrie's "This Land Is Your Land," is invoking copyright in an effort to silence JibJab's very funny "This Land" animated short (here is Ludlow's latest threat letter).

EFF has taken JibJab on as a client. We've posted our reply letter (PDF):

...In your July 23 letter, you contend that "This Land" offers no "satirical comment" on the Guthrie original. You are mistaken.

While your view of Guthrie's "This Land Is Your Land" as being predominantly about "the beauty of the American landscape" and "the disenfranchisement of the underclass" is interesting, most Americans think of the song as an iconic expression of the ideal of national unity. Jib Jab's parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with the optimistic hope that unity might be rediscovered). In short, "This Land" explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original. See Abilene Music v. Sony Music Entertainment, 320 F.Supp.2d 84, 90-91 (S.D.N.Y. 2003) (emphasizing the role of contrast and juxtaposition as parodic devices). The parodic comment takes on an additional dimension of irony when viewed in light of the often omitted closing stanzas of Guthrie's original....

Rather than addressing JibJab's free speech and fair use rights, Ludlow's lawyers have now sent threat letters to JibJab's hosting provider, AtomFilms, as well as to AtomFilm's upstream provider -- evidently in an effort to get "This Land" censored right off the Internet.

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Judge Unmasks Filesharers, Recognizes First Amendment Interests

Posted by Donna Wentworth

A court decision today in a case against people accused of sharing copyrighted files on peer-to-peer networks brought some good news for those concerned about the way the recording industry is pursuing its litigation campaign.

In Sony v. Does 1-40, Judge Denny Chin denied (PDF) a motion to stop the RIAA from obtaining the identities of 40 people who were using the networks anonymously. But at the same time, he affirmed that their First Amendment rights should be factored into the equation.

First, Judge Chin agreed with EFF, Public Knowledge, and the ACLU that people accused of copyright infringement via P2P networks are entitled to First Amendment protection just like everyone else. He applied the same test for subpoenas that reveal the identities of speakers online that has been developed in other cases involving anonymous speech. Second, Judge Chin expressly allowed the individuals sued to later raise the issue of where the case should be filed and whether the defendants should be lumped into the same lawsuit (at least 30 of the 40 people sued do not live in New York where the case was brought).

"While we had hoped that he would prevent the names from being turned over, we are pleased that Judge Chin recognized the important First Amendment interests in anonymous speech and required the plaintiffs clearly to set forth a cause of action before gaining access to defendants' names," said EFF Legal Director Cindy Cohn. "Being accused of copyright infringement does not mean that your rights as a U.S. citizen no longer matter."

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Barbie's In a Blender

Posted by Donna Wentworth

Bravo to the students @ Free Culture for today's spirited celebration of fair use in action. Check out the entirely legal art exhibit, served with a generous helping of much-appreciated levity:

Legal Notice:
Sorry Barbie, it's a free country and everything on this site is protected by the First Amendment right to speak, comment, and parody. So maybe you should give your lawyers a break from suing people for a while. Who knows? Maybe it'll give them some free time to ask you out on a date. Just think off all the shopping you could do on a corporate lawyer's salary! Seriously, does Ken even have a job?

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This Land Isn't Your Land

Posted by Fred von Lohmann

The two brothers who created the fantastic "This Land" parody -- sending up President Bush, Senator Kerry, and the current state of American democracy to the tune of "This Land is Your Land" -- have been threatened with a copyright lawsuit.

You see, the classic American song, penned by renowned leftist folk singer Woody Guthrie in 1940, is apparently still under copyright. And the copyright is now in the hands of Ludlow Music, Inc., a unit of The Richmond Organization.

If this isn't fair use, it's hard to imagine what is. One can only imagine what Woody himself would have said, who once used this as his standard copyright notice:

"This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

Professor Larry Lessig has often complained that "fair use is the right to hire a lawyer." Well, it looks like yet another parodist interested in free expression will be called upon to risk litigation in order to vindicate our First Amendment rights. EFF has been contacted by the fine folks at Jib Jab, who are considering their options. Stay tuned.

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Hatch Misreads, Sidesteps iPod Induce Act Threat

Posted by Jason Schultz

During yesterday's Senate Judiciary Committee hearing on S. 2560, the Inducing Infringements of Copyright Act, Judiciary Chairman Orrin Hatch (R-UT) made a few comments about the concerns EFF raised about the Act in our mock complaint against Apple, Toshiba, and C-NET over the iPod. Sadly, Orrin seems to have missed a few key points.

Said Senator Hatch:

[There] is a mock complaint circulating that alleges that the Apple iPod violates S. 2560 because MP3 players would never have been commercially viable but for the preceding, massive wave of for-profit file sharing piracy that was defended by groups like the Electronic Frontier Foundation.

A real court would respond to that mock complaint in two words: Complaint dismissed. The case law states that no one can "induce" unlawful acts that have already occurred. Neither Apple nor the iPod violate S.2560 - even if portable MP3 players became commercially viable only because file-sharing piracy created MP3 collections too large to be explained by legal purchase.

First, we didn't allege that the iPod would be liable because of the file sharing that occurred before its launch, but, rather, the increased file sharing and hand-to-hand "CD swap" transfers it is now "inducing." How many more songs will be copied on Duke University's campus now that the university is supplying all incoming students with free iPods? Does Orrin really think students will fill every GB without downloading or copying a single unauthorized file?

Second, Hatch fails to point to any specific language in S. 2560 or any legal precedent to support his conclusions. As a courtroom lawyer, you can't get a judge to dismiss a case unless you can point to something in the law to support your argument. Hatch's comment is cold comfort without specific language in S. 2560 to back it up.

Third, in addition to the "commercial viability" argument, we also point out that Apple made explicit decisions to advertise the "Rip, Mix, Burn" potential of its products and to design the iPod to carry MP3 files -- the most common unprotected file format on file-sharing networks -- instead of limiting iPods to copy-protected formats like AAC or WMA. These facts alone would be enough to bring a case against the iPod and reach the trial stage before being dismissed.

P2P applications now come in more than 130 flavors, and it would be very difficult for Congress to craft a law capable of taking all of them down without harming companies like Apple in the cross-fire. If Hatch really wants to protect the iPod and other everyday devices from litigation threats, he should be helping the entertainment industry explore new business models that compensate artists and rightsholders by leveraging the power of P2P. Otherwise, we sacrifice innovation for legislation that will only drive file sharing further underground.

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Hollywood (Finally) Turns on TiVo, Part II

Posted by Donna Wentworth

Susan Crawford, responding to the Jonathan Krim article we mentioned earlier today about TiVo and the FCC's broadcast flag mandate (PDF):

The flag was supposed to be about indiscriminate online distribution. TiVo is trying to provide a device that allows 10 people within a personal network to copy TiVo-ed shows onto their PCs. It's perfectly secure. It's just not quite constrained enough for the studios.

And Hollywood is asking [pdf] the FCC to make sure that this TiVo functionality never reaches consumers.

This desperate quest for control, using the FCC as an apparently willing tool, will end its first stage next week. The rumor is that Real and MSN have already caved in to the studios. Only TiVo is still fighting.

The flag proceeding has convinced me that FCC is capable of almost anything. That's why it seems important to let FCC know just how hard making rules about IP-enabled services will be.

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Listening to the Induce Act

Posted by Donna Wentworth

Edward Felten is hosting an impromptu discussion in the comments section of his weblog as readers tune in to the webcast of the Induce Act hearing.

Bonus: Testimony by Marybeth Peters (PDF) of the Copyright Office, who'd like to erase the Betamax decision and presumably the 20 years of technological innovation that it allowed.

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Hollywood (Finally) Turns on TiVo

Posted by Donna Wentworth

For a while there, it looked like TiVo could avoid (some of) the copyright battles that felled the competition by playing nice with the content industry. But as this MSNBC Washington Post article shows, sometimes even asking for permission to innovate isn't enough:

Hollywood studios and the National Football League are seeking to block the maker of the popular TiVo television recorder from expanding its service so that users could watch copies of shows and movies on devices outside their homes.

[...]

TiVo has an interest in keeping everything secure," said its Washington attorney, James M. Burger. "We are trying to bring innovation to consumers."

But the system alarms the content industry, which promised to roll out more digital programming over free television networks only after insisting that the FCC adopt rules requiring makers of recording devices to certify that they have technologies to prevent mass Internet distribution.

Digital programming is far more appealing for online distribution because the quality does not degrade as it is copied over and over.

TiVo was one of 13 companies that asked the FCC for approval, arguing that its copy-protection system met the requirements. The Motion Picture Association of America, Hollywood's lobbying arm, and the NFL then filed objections to TiVo's plan.

[...]

Mike Godwin, policy counsel for Public Knowledge, an advocacy group for consumer digital rights, said the fight highlights the danger of requiring technologies to be approved by government agencies.

"We've always thought that once the FCC got into the role of approving content protection technologies that the content companies would leverage this to use the agency to throttle various technologies," he said.

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