Fair Use Principles for "UGC"

Posted by Fred von Lohmann

Today EFF and a group of other public interest groups devoted to protecting free speech and fair use issued a document entitled "Fair Use Principles for User Generated Video Content [PDF] [HTML]." Accompanying the document is a "test suite" of sample videos that EFF believes should not be blocked by automated copyright filters, but may nevertheless be in jeopardy based on their use of excerpts from pre-existing copyrighted material.

We know that media companies and video hosting providers are negotiating over new mechanisms to address copyright infringement while protecting fair use. Today's "Fair Use Principles" are intended to supplement those efforts, giving both the lawyers and the engineers something to "test against" as they engage in these negotiations.

The "Fair Use Principles" document describes a set of concrete steps that service providers and content owners can and should take to protect the "remix culture" that has been a foundation for sites like YouTube. A critical component of the Principles is a detailed description of a "three strikes" threshold before materials are automatically blocked. In addition, the document includes a "humans trump machines" rule, which is to say that users must be afforded the opportunity to dispute and override the conclusions of automated identification or filtering mechanisms.

The "test suite" of sample videos is intended to give engineers concrete examples of transformative, creative "remixes" of copyrighted materials that should not be caught in automated copyright filters. We also happen to think that they are examples of fair uses, but that's not the point. Any debate over the fair use merits of these videos requires human review, and is not something for automated filters to decide.

Here's hoping that these proposals lead to real progress in striking a balance between the interests of UGC creators, media companies, and video hosting services.

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Comcast Needs to Come Clean

Posted by Peter Eckersley

Over the last couple of days, Comcast has been telling the press that they're not interfering with their users' traffic, they're just "delaying" it. Let's examine that proposition for a moment. In our previous posts, we discussed Comcast's forging of TCP RST packets to kill users' connections on BitTottent, Gnutella and Lotus Notes. To see just how disingenuous Comcast is being, consider the following analogy:

Alice is trying to telephone Bob. Alice telephones Bob, and hears someone answer the phone in Bob's voice. They say "I'm sorry Alice, I don't want to talk to you", and hang up. Except, it wasn't actually Bob who answered the phone, it was Comcast using a special device to impersonate Bob's voice. Comcast might describe this as "delaying" Alice and Bob's conversation, on the theory that perhaps they'll keep calling each other until some day when Comcast isn't using their special device. They may also invoke the theory that Alice will call other people who are a lot like Bob, but aren't on Comcast's network, so her conversation will only be delayed.

If "delaying" traffic was Comcast's private intent, they were clearly making absurd and frequently incorrect assumptions about the protocols they were jamming. No doubt that is how they wound up blocking Lotus Notes. (On that subject: after the blog and media attention that followed our post pointing out that situation, Comcast may have finally listened to IBM/Lotus and taken steps to stop jamming Notes. We're happy they've done that, but we have little confidence that smaller companies or free/open source software developers would be able to get Comcast's attention when their protocols are broken by Comcast's packet spoofing.)

Another thing that Comcast has started suggesting to reporters — without giving any details — is that for obscure technical reasons, they can't always prevent network congestion by reducing the amount of bandwidth available to P2P protocols, so when the network is busy, they start jamming them instead. This is an interesting argument, but it's very hard to evaluate or refute it without any details! (A nice rhetorical trick, that.)

For now, let's be very generous to Comcast and assume what we think is false: let's assume that some P2P network or other actually triggers a flaw in the way cable modem networks are designed, so that it's hard for Comcast to keep plenty of the channel free for web surfers when there are enough P2P nodes around. In that case, rather than just spoofing packets and offering incredibly disingenuous denials after they've been caught red-handed, Comcast should come clean. They should explain what they're doing, and explain in precise and detailed terms why they're doing it. If they do that, the technical community will be able to evaluate their arguments properly, decide whether they've got any basis at all, and (we're just guessing here) explain to them how to solve their problem correctly and without arbitrarily jamming things.

That way, Comcast might not break the very thing they claim to be selling access to: the Internet.

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Bloggers and Civil Libertarians Petition Congress

Posted by Danny O'Brien

When it comes to putting the pressure on the Senate to stand against retroactive immunity for telecom lawbreakers, bloggers have taken a vital lead. They helped inspire Chris Dodd to pledge a hold on any Senate bill that contains an amnesty, and prompted Barack Obama's recent unequivocal opposition to immunity.

These key bloggers have joined together to send a letter to Harry Reid, urging him to honor Sen. Dodd's hold and stop the immunity legislation currently moving through the Senate. The full letter is at www.noretroactiveimmunity.com. You can add you own name to the letter there (and join EFF, the ACLU, Working Assets and many prominent figures in the Democratic netroots.) And don't forget to visit Stop The Spying to call your representatives and urge them to use their vote to oppose telecom immunity in Congress.

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Computer & Communications Industry Association Opposes Amnesty for Telecoms

Posted by Kurt Opsahl

Last week, the influential Computer & Communications Industry Association (CCIA) sent a letter to Speaker of the House Pelosi opposing amnesty for telecommunications companies involved in the illegal warrantless surveillance program. CCIA encouraged Congress "to reject broad immunity provisions in favor of a better balance between legitimate national security interests and basic Fourth Amendment privacy for U.S. citizens."

The venerable CCIA, "a nonprofit membership organization for a wide range of companies in the computer, Internet, information technology, and telecommunications industries," recognized that "[c]ommercial enterprises have the right to insist, as apparently one telephone company (Qwest) had done, that government requests for customer information be accompanied by appropriate legal authorization from a court or some official of the judicial branch of government."

We applaud CCIA for taking a stand for justice and for the privacy and security of the American people.

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Report Shows that "Copyright Confusion" Obstructs Media Literacy Efforts

Posted by Richard Esguerra

A recently completed investigation into copyright's effect on media literacy education resulted in the following criticism: lack of knowledge and poor policies inhibit the teaching of critical thinking and communication skills.

The report, published by the American University Center for Social Media (in partnership with the Washington College of Law’s Program on Information Justice and Intellectual Property, and the Media Education Lab of Temple University) is titled "The Cost of Copyright Confusion for Media Literacy." It is the product of extensive interviews conducted throughout 2007, unearthing the real-world challenges faced by teachers, librarians, and others involved in bringing real media examples into the classroom.

As expressed in the report, the goal of teaching media literacy is to impart "the ability to access, analyze, evaluate, and communicate messages in a wide variety of forms." Common sense dictates that media literacy instruction should include the fair use-protected presentation of articles, photographs, news footage, movie clips, and songs. However, the report demonstrates that teachers are steered away from common sense by maximalist copyright propaganda, and that widespread, institutional fear of infringement inhibits teachers seeking to leverage technology and media to achieve educational goals.

The following hypothetical situation is drawn from experiences gleaned from the interviews, and typifies a teacher's considerations when confronting potential copyright issues:

George Abell's high school students analyze persuasion techniques used in advertising. But they don't analyze real ads--Abell is too afraid he might run afoul of copyright restrictions. Instead, he spends time in the summer creating dummy ads for them to analyze. They're not as good, as interesting, or as persuasive. But he's confident he's within the school's guidelines.

Appropriately, the report recommends the development of a comprehensive code of practice that can provide clarity on copyright rules and fair use exceptions, helping educators freely and lawfully advance media literacy in the classroom. With technology enabling an environment of media saturation, media literacy provides a vital bridge between culture and citizenship. As the report points out, maximalist copyright myths are hampering progress on forging this important link.

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Minilinks for 2007-10-22

Posted by Hugh D'Andrade

• Podcast: EFF's Cindy Cohn on Telecom Immunity
  Salon blogger Glenn Greenwald's interview with EFF Legal Director Cindy Cohn.
  
• U.S. Voters Oppose Warrantless Wiretapping
  A recent poll found that a majority of voters across the political spectrum are opposed to warrantless wiretaps.
  
• Josh Wolf on Journalist's Shield Law
  Will the Free Flow of Information Act do enough to protect bloggers?
  
• Microchips Used to Track Students
  A UK school is experimenting with using microchips embedded in school uniforms to track students.
  
• New Zealander Beats Amazon in Patent Battle
  The U.S. Patent Office rules that Amazon does not have exclusive rights to one-click shopping.
  
• File Sharing Fuels Brazil's Techno Scene
  Musicians in Brazil are encouraging fans to download and share their music.
  
• Cartoon: Why Are Democrats Caving on Wiretaps?
  Cartoonist Steve Sack asks what Democrats have to gain by supporting Bush's wiretap policies.
  

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Newspaper Editorial Boards Oppose Telecom Immunity

Posted by Hugh D'Andrade

When a key Senate committee voted Thursday to include retroactive immunity for telecom lawbreakers in new legislation, they may not have been prepared for the rising tide of criticism coming their way. Newspaper editorial boards and legal scholars from around the country, normally cautious and reserved, are speaking out in increasingly urgent terms about the threat to the rule of law posed by the immunity provisions. If the bill becomes law it will let phone companies off the hook for their participation in the NSA’s massive and illegal wiretapping program.

Here are few selections from the nation's wires:

NY Times (login required):

[Telecom immunity] is not primarily about protecting patriotic businessmen, as Mr. Bush claims. It’s about ensuring that Mr. Bush and his aides never have to go to court to explain how many laws they’ve broken. It is a collusion between lawmakers and the White House that means that no one is ever held accountable. Democratic lawmakers said they reviewed the telecommunications companies’ cooperation (by reading documents selected by the White House) and concluded that lawsuits were unwarranted. Unlike them, we still have faith in the judicial system, which is where that sort of conclusion is supposed to be reached, not in a Senate back room polluted by the politics of fear.

USA Today:

Since Sept. 11, 2001, the Bush administration has repeatedly bypassed the special court set up to preserve balance. Now, with Congress threatening to restore some level of protection, the administration is insisting on legal immunity for telecommunications companies that might have turned over records improperly. Last week, a key Senate committee agreed.

The request alone is enough to raise suspicion, particularly given the nation's history.

In the 1960s and '70s when law enforcement and spy agencies launched mass snooping against U.S. citizens, some of the data ended up being used for nefarious purposes, such as IRS tax probes, that had nothing to do with protecting the nation.

That is the danger when an administration can tap into phone records without court oversight, and it is what's at issue now.

New Jersey Star Ledger:

The immunity bill would let the telecommunications companies off the hook, but not administration officials. This is misguided. All those who deliberately broke the surveillance laws should be held to account. If not, we are simply inviting more privacy abuses in the future.

Philadelphia Daily News:

If telecom companies fear lawsuits, then here's a tip for them: Don't break the law.

It doesn't matter if President Bush comes to your offices, personally, and demands that you do.

Just because he's the president doesn't mean he can do an end run on the Constitution, and ignorance and fear of political retribution isn't an excuse for violating our rights.

Congress cannot and should not cave in to the heavy pressure telecom companies and the White House are exerting on them.

When the right of individuals to protect their rights through the court system is at stake, there should never be such a thing as a free pass.

Other papers siding with EFF on this issue include The Dallas Morning News, Albany Times-Union, The Bangor Daily News, the Ventura County Star, and the North Carolina News & Observer.

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EFF Document Summarizes Evidence of NSA Spying

Posted by Richard Esguerra

We recently published a one-page document summarizing the evidence that is the centerpiece of EFF's Hepting v. AT&T case. Information for the document came from previously secret evidence that was unsealed this summer, including the declarations of whistleblower Mark Klein and EFF's expert witness, J. Scott Marcus, a former Senior Advisor for Internet Technology to the Federal Communications Commission. The document includes the following diagram, a straightforward illustration of how a massive portion of innocent Americans' communications were put under the control of the NSA:

For those who haven't already seen it, the PBS Frontline documentary "Spying on the Home Front" explores the evidence in clear, concise detail. The 10-minute portion that strictly covers the evidence can be found here, but you can stream the whole documentary for free and without DRM from the Frontline website.

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Comcast is also Jamming Gnutella (and Lotus Notes?)

Posted by Peter Eckersley

Yesterday, we posted about some experiments showing that Comcast is forging packets in order to interfere with its customers' use of BitTorrent. There have been reports of strange things happening with other protocols, and we've been running some tests on two other file transfers protocols in particular — HTTP (which is used by the World Wide Web) and Gnutella. Comcast has also been strenuous in telling us, "we don't target BitTorrent". Perhaps not. Perhaps what they're doing is even worse.

In the limited tests we ran, we didn't see any interference with HTTP traffic. Comcast's network seems to behave correctly when you run a private web server and share a few of your photos or videos over it (we tested files up to about 25MB).

But when you try to run a Gnutella P2P node on your machine, things start getting strange. Gnutella operates in two stages: first of all, your node starts a conversation with other nodes on the network. Once that conversation is happening, nodes can say things to each other to organise searches for and downloads of files. We saw forged TCP reset packets that stop some of the nodes from being able to converse with each other in the first place.

Forged reset packets are normally the kind of thing that would only be present if a hacker was attacking your computer, but in this case, it's the ISP you pay money to each month that is sending them.

Strangely, the packet forgery only occurs when a non-Comcast node is trying to start a conversation with a Comcast customer's Gnutella node. If the Comcast customer starts the conversation, there is no Reset packet. This means that Comcast customers will not see Gnutella fail entirely — the network just doesn't work properly.

It isn't just BitTorrent and Gnutella that are affected. Kevin Kanarski has reported that Lotus Notes (a suite of software that many businesses use for email, calendaring and file sharing) is also being interfered with. We haven't tested this ourselves yet, but Kanarski's packet traces look a lot like the ones we've collected with BitTorrent and Gnutella.

When an ISP starts arbitrarily zapping some of the protocols that its customers use, they instantly endanger the cascade of innovation that the Internet has enabled. Before this kind of traffic jamming, anybody — huge businesses, small start-ups, college students and children in their bedrooms — could build new, innovative protocols on top of the Internet's TCP/IP platform.

If this type of conduct is allowed to continue, many innovators will have to get active assistance from an ISP in order to have their protocols allowed through the ISP's web of spoofing and forgery. Technologies like BitTorrent and Joost, which are used to distribute licensed movies and are in direct competition with Comcast's cable TV services, will be at Comcast's mercy.

It should also be remembered that in many parts of the United States, Comcast is a duopoly or even a monopoly provider of broadband Internet access. Competition might offer some protection against packet-forging ISPs, but under current market conditions, we can't depend on it.

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Senate Committee Caves in to Telecom Amnesty

Posted by Rebecca Jeschke

The Senate Select Committee on Intelligence approved a bill including amnesty for phone companies that assisted the NSA in its illegal warrantless surveillance program late Thursday -- amnesty that is intended to kill pending cases against the telecoms such as EFF's class action lawsuit against AT&T.

If this bill is passed, it would immunize the companies' lawbreaking if it were done based on an authorization by the president, foolishly undermining the very purpose of the Foreign Intelligence Surveillance Act (FISA). As EFF Legal Director Cindy Cohn explains in this Salon interview, FISA was passed after Watergate and the spying scandals of the seventies to ensure that the president could never unilaterally decide to spy on Americans' communications. For Congress to now say, 'It's OK if the president said so' would be a striking abdication of its authority. Congress should let the courts address the critical legal questions raised by the NSA's warrantless wiretapping program -- especially the question of whether the president and the phone companies are bound by Congress' laws in this area. Instead, some lawmakers seem intent on shooting their own branch of government in the foot by assisting in the Administration's cover-up and preventing the court's enforcement of Congress' law.

Now that the intelligence committee has approved the bill, it will be referred to the Senate Judiciary Committee for further consideration. However, Connecticut Senator Chris Dodd has announced that he will put a 'hold' on the bill to prevent it from being considered by the full Senate. We are pleased Senator Dodd has taken a stand for Americans' privacy rights. This amnesty provision is essentially an admission that the telecoms did indeed violate the law at the president's request and did so on a massive scale. If the NSA program were truly narrowly targeted at terrorist suspects, as the president claims, the carriers would not need this unprecedented bailout. Now is the time to tell lawmakers to say no to immunity -- pick up the phone and take action!

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