Chinese New Year: Resolutions for Google

Posted by Danny O'Brien

There's not much to say on the legal matter of what Google recently did to its own values, and 1.3 billion people's fundamental freedoms, in order to enter the Chinese market. As an American company, Google can filter and censor its database as much as the China government demands, with no real legal repercussions.

U.S. law has certainly spoken in the past about American companies' behavior in foreign authoritarian states. Perhaps the House Subcommittee on Human Rights hearings on February 15 will clarify what the U.S. Congress will make of such actions in the future.

Beyond the law, we at the EFF are, of course, deeply disappointed with the decision Google has made.

So, it seems, are many at Google. The company's senior counsel admits that it has "compromised its mission" by censoring its index. The company has made it clear that it sees the decision as a difficult choice: the lesser of two evils.

Lesser or not, Google has made a far-reaching decision. It has decided to magic away thousands of websites from easy access to the Chinese net. It has not only removed critics of Chinese government from its searches, but left an unbalanced and misleading residue of praise for the status quo, and scorn for its victims. It has set up an evil honeypot—capturing and keeping the IP addresses and search terms of Chinese users so that they will be easily retrievable by the Chinese authorities when they want to crack down on people who search for "Tibet" or "Chinese democracy." Yahoo recently cooperated with a request from the Chinese government for information about its users and the damage was a 10 year prison sentence for a journalist in China's notorious prisons. Google has also set a precedent for every other state that wants to hide the free speech of the Net from its subjects. It has declared to dissidents everywhere that here is another Western company happy to barter away the rights they struggle for, and that the Western governments claim are precious.

Google's executives may feel badly about what it has done. But if a company can aspire to "not be evil," and then fail to live up to that, and admits that it has compromised its own mission, what can it do?

How can Google possibly reduce, if not make up for, the damage it has done?

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Google Cache Ruled Fair Use

Posted by Fred von Lohmann

A district court in Nevada has ruled that the Google Cache is a fair use.

Blake Field, an author and attorney, brought the copyright infringement lawsuit against Google after the search engine automatically copied and cached a story he posted on his website. The district court found that Mr. Field "attempted to manufacture a claim for copyright infringement against Google in hopes of making money from Google's standard [caching] practice." Google responded that its Google Cache feature, which allows Google users to link to an archival copy of websites indexed by Google, does not violate copyright law.

The court granted summary judgment in favor of Google on four independent bases:

• Serving a webpage from the Google Cache does not constitute direct infringement, because it results from automated, non-volitional activity by Google servers (Field did not allege infringement on the basis of the making of the initial copy by the Googlebot);
• Field's conduct (failure to set a "no archive" metatag; posting "allow all" robot.txt header) indicated that he impliedly licensed search engines to archive his web page;
• The Google Cache is a fair use; and
• The Google Cache qualifies for the DMCA's 512(b) caching "safe harbor" for online service providers.

The decision is replete with interesting findings that could have important consequences for the search engine industry, the Internet Archive, the Google Library Project lawsuit, RSS republishing, and a host of other online activities.

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History and Senator Stevens' iPod

Posted by Danny O'Brien

Yesterday's Senate Commerce Committee hearing on the Broadcast Flag--and its younger, brattier, brother, the RIAA's proposed "Audio Flag"--swung a little wildly from its pre-ordained course.

It began with committee chairman Senator Stevens and Senator Inouye, his Democrat counterpart, declaring, as with all good anti-piracy measures, that Something Had To Be Done, and that Congress should pass the flag as soon as possible.

The agenda seemed set. In the face of it, those who objected to the Broadcast Flag--technologists, librarians, and civil libertarians--were forced to spend much of their Congressional time requesting narrow exceptions that might lessen its damage.

Then two things happened...

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MPAA: Copying Movies OK for Our Families, Not Yours

Posted by Fred von Lohmann

The Los Angeles Times reports that the Motion Picture Association of America (MPAA) made unauthorized copies of a new documentary, This Film Not Yet Rated, that is critical of the organization.

The copies were apparently made when the film was submitted for an MPAA rating. The film got an NC-17, a somewhat ironic outcome for a film that exposes the unfairness of the MPAA ratings system.

The MPAA made the copies because they "were concerned about the raters and their families," according to Kori Bernards, the MPAA's vice president for corporate communications. The identities of the MPAA ratings board have been a closely guarded secret, at least until This Film Not Yet Rated did some amateur detective work to sniff them out. Now that the word is out, the MPAA apparently is afraid for "their families"?

So copying movies is OK when it's done to protect the families of the MPAA ratings board, but not OK when it's done to protect the families of movie fans. After all, the MPAA and its members have said it's "theft" and "piracy" for you to copy your own DVDs, whether to make a back-up copy to protect your DVDs from being scratched by your toddler, to edit out the annoying, unskippable commercials that open many DVDs, or to skip strong language, nudity, and violence that you think is inappropriate for your family.

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DOJ Gone Google-Fishin'

Posted by Kurt Opsahl

The DOJ's demand for one week worth of search histories has raised the concern that the government will go fishing into the data set, looking for searches and for keywords that worry the government. Even if IP numbers or other identifying data is not provided, what is to prevent the government from returning to Google with a second subpoena?

Over the weekend, Newsweek has reported that:

Though the government intends to use these data specifically for its COPA-related test, it's possible that the information could lead to further investigations and, perhaps, subpoenas to find out who was doing the searching. What if certain search terms indicated that people were contemplating terrorist actions or other criminal activities? Says the DOJ's [spokesperson Charles] Miller, "I'm assuming that if something raised alarms, we would hand it over to the proper [authorities]." (emphasis added)

If Mr. Miller is accuarate, this shows that the DOJ's civil division is not afraid to venture beyond the confines of the underlying COPA case (and the protective order), and data mine the deeply personal data provided by Google (and the other search engines) to find suspicious searchers to subject to scrutiny by the criminal division.

Not only is this dangerous plan Constiutionally suspect, it raises the possibility that innocent people will be suspected based on false assumptions about their searches (think about whether all the Amazon or TiVo recommendations based on your habits really captured what you were looking for). It's time for the DOJ to give up this dangerous experiment in abusive and overreaching discovery, and assure the public that the government will not use your search histories as a investigative tool.

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New Senate Broadcast Flag Bill Would Freeze Fair Use

Posted by Fred von Lohmann

Draft legislation making the rounds in the U.S. Senate gives us a preview of the MPAA and RIAA's next target: your television and radio. (Please write your Senator about this!)

You say you want the power to time-shift and space-shift TV and radio? You say you want tomorrow's innovators to invent new TV and radio gizmos you haven't thought of yet, the same way the pioneers behind the VCR, TiVo, and the iPod did?

Well, that's not what the entertainment industry has in mind. According to them, here's all tomorrow's innovators should be allowed to offer you:

"customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law."

Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.

Fair use has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely "customary historic uses." Sony was entitled to build the VCR first, and resolve the fair use questions in court later. This arrangement has worked well for all involved -- consumers, media moguls, and high technology companies.

Now the RIAA and MPAA want to betray that legacy by passing laws that will regulate new technologies in advance and freeze fair use forever. If it wasn't a "customary historic use," federal regulators will be empowered to ban the feature, prohibiting innovators from offering it. If the feature is banned, courts will never have an opportunity to pass on whether the activity is a fair use.

Voila, fair use is frozen in time. We'll continue to have devices that ape the VCRs and cassette decks of the past, but new gizmos will have to be submitted to the FCC for approval, where MPAA and RIAA lobbyists can kill it in the crib.

The new legislation, being circulated by Senator Gordon Smith (R-Ore.), is the first step down that path (and is eerily reminiscent of the infamous 2002 Hollings Bill). It would impose a broadcast flag mandate on all future digital TVs and radios, much like legislation discussed by the House last year.

We've covered the broadcast flag and radio flag extensively in the past. These measures would impose federal regulations on all devices capable of receiving digital television and digital radio signals. What's worse, the regulations won't do a thing to stop "piracy," since there are plenty of other ways to copy these broadcasts.

Sen. Smith's bill would retroactively ratify the FCC's broadcast flag regulations, rejected by the courts last year. This effort to impose content protection mechanisms in all future TVs is still just as terrible an idea now as ever.

The bill would also give the FCC authority to regulate the design of digital radios (both terrestrial HD Radio and XM and Sirius satellite). The bill envisions an "inter-industry" negotiation with a preordained outcome -- federal regulations mandating content protection mechanisms in all future HD Radio and satellite radio receivers.

The FCC regulations could make room for "customary historic uses of broadcast content by consumers to the extent such use is consistent with applicable law." Presumably, that means you could design a digital device just as good as an analog cassette deck, but no better.

Sorry, Sen. Smith, but American innovators and music fans deserve better.

UPDATE: For more on this, check out Public Knowledge's analysis, as well as Boing Boing's.

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SunnComm's initial response to our open letter

Posted by Kurt Opsahl

A while back, we wrote an open letter to SunnComm, the manufacturer responsible for the insecure MediaMax DRM software installed on audio CDs.

As an initial formal response, SunnComm has released lists of all the titles, regardless of label, that use the MediaMax 5 and MediaMax 3 DRM. The MediaMax'd CDs are not limited to Sony BMG, but include independent label records such as Cuban Link's "Chain Reaction" by Men of Business Records, Peter Cetera's "You Just Gotta Love Christmas" by Viastar Records or MediaMax'd releases on KOCH Records. SunnComm provided a copy of the following letter, which it sent on January 5 to all the independent labels using its software:

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Searching for Mr. Privacy

Posted by Kurt Opsahl

Google, Yahoo, MSN, AOL and other search engines have massive databases that reach into the most intimate details of your life-- what you search for, what you read, what worries you, what you enjoy. It is critical to protect the privacy of this information so that people can feel free to use the modern tools necessary to navigate the Internet without fear of big brother looking over their shoulder. In response to a DOJ subpoena for aggregate search logs, Yahoo, MSN and AOL complied, while Google fought back.

While Google may be able to push the government back this time, the subpoena and the compliance of the other major search engines raises the question, should these service providers keep the information indefinitely in the first place? Massachusetts Representative Edward Markey, the ranking Democrat on the telecommunications subcommittee of the House Energy and Commerce Committee, has an answer. He proposed a bill to limit the amount of information kept by search services.

The provision proposed by Rep. Markey is the same standard that Congress has adopted for information gathered by cable companies about individual viewing and subscription habits, and it better balances the tension between the commercial operations of Internet search engines and the privacy concerns of all Americans.

We applaud Rep. Markey for his concerns, and look forward to seeing the text of the bill to see if it adequately addresses the problems raised by these massive data troves of deeply personal information.

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New Mexico E-voting Lawsuit Clears Latest Hurdle; New Fights Loom Nationwide

Posted by Matt Zimmerman

On Wednesday, a New Mexico state court judge denied a summary judgment motion made by Secretary of State Rebecca Vigil-Giron and permitted the plaintiffs in an important e-voting challenge to move forward with discovery. The suit, filed in January of 2005, challenges the state's use of paperless e-voting systems in the wake of widespread irregularities reported surrounding the use of such machines during the 2004 presidential election.

Meanwhile, New Mexico Governor Bill Richardson and Attorney General Patricia Madrid have proposed legislation that would require the use of paper-based systems that would permit meaningful recounts and audits. The plan, if adopted, would also provide over $11 million in additional state funds for counties to upgrade their existing systems.

The New Mexico litigation (Lopategui v. Vigil-Giron) moves forward following the expiration of a key federal voting equipment deadline that promises new rounds of litigation across the country. The Help America Vote Act, passed in 2002, required jurisdictions using federal funds to upgrade from older punchcard and lever machine by January 1st. Multiple states and counties, including New York, have thus far failed to meet their obligations. Auditable election advocates (including EFF) have criticized the federal government for its ongoing failure to promulgate comprehensive technical guidelines and for failing to properly oversee the federal voting equipment certification process.

2006 promises to be yet another fiercely competitive election year. Expect the fight for transparent and auditable systems to again be an important part of that landscape.

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DMCA Reply Comments: The Cell Phone Locking Exemption

Posted by aaron

In the previous post, we noted the approaching deadline for filing reply comments in the Copyright Office's DMCA rulemaking proceeding and summarized the proposed exemption submitted by Ed Felten and J. Alex Halderman. This post highlights another key first round comment, one submitted by the Stanford Center for Internet and Society's Cyberlaw Clinic on behalf of the Wireless Alliance and Robert Pinkerton.

Mobile Firmware Exemption

The Wireless Alliance, a Colorado corporation that recycles and resells used and refurbished mobile handsets, and Robert Pinkerton, a frustrated mobile phone user, filed a comment requesting a DMCA exemption for "computer programs that operate wireless telecommunications handsets" or "mobile firmware."

This exemption targets the practice commonly known as cell phone locking - when a provider stops customers from using their phone on another provider's network. As anyone who has taken their GSM phone to Europe only to discover that they can't purchase and use a local GSM chip because of provider lock-in can attest, cell phone locking creates real problems for mobile phone users.

In order for mobile users to switch their handset from one service provider to another, they need access to the firmware that operates their mobile phones. In an effort to keep their subscribers locked in to their network, most major mobile service providers take steps to protect their firmware from unwanted end user upgrades. The technological measures taken to prevent users from accessing the firmware vary, but their goal is the same: limiting competition and consumer choice.

Beyond these anticompetitive effects, allowing anti-circumvention claims against mobile phone users who upgrade the firmware on their handsets creates significant independent harms. The inability to switch mobile phones between providers contributes to 150 million mobile phones (and the toxic chemicals they contain) being discarded every year. And because most handsets are unusable on other networks without upgrading their firmware, the potential re-use of unwanted handsets in developing nations is thwarted.

Were you forced to buy a new handset or remain with your current provider because your phone was locked in to a particular network? Have you been unable to use your handset internationally because of firmware limitations? If you can offer this sort of personal and specific factual information in support of this comment, we urge you to file a reply comment with the Copyright Office.

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