Knitwit BBC Goes After Dr Who Fans

Here's a fascinating UK legal analysis of an incident we see occurring all over the world: an over-eager rightsholder undermining Internet goodwill by pursuing their own fans for supposed IP infringements.

Andre Guadamuz, is a lecturer at the Edinburgh University school of law, and organizes the fantastic British conference on "geek law", Gikii. He was recently put in contact by the Open Rights Group with Mazzmatazz, a Dr Who fansite which posts knitting patterns of the current batch of Dr Who monsters, including those obedient servants of man, the Ood (see above).

BBC Worldwide, the commercial wing of the public service BBC, sent the site a demand to remove "any designs connected with DR WHO" -- even though the site was offering them free to anyone who wants to knit their own loveable Who-related terrors.

Guadamuz covers the legal ground, and suggests that, like many rightsholders, the BBC has less power to stop fans from creating their own transformative works than they might think. Sadly, that's not enough to save the woolly Ood designs which were taken down out of concern for just the threat of legal action.

As Guadamuz notes, the BBC and Dr Who production staff should know better than to pursue a campaign of online threats against their own fans. These are the people that kept the BBC's now-lucrative Who franchise going during years of neglect by its owners; these are the people who actively promote the current series; and, in the UK at least, these are the people who pay the bulk of BBC's salaries.

Like Dr Who's Ood, fans are happy to serve their favorite franchises when treated well. But if the BBC starts treating them like this, they can all too easily rise up and attack the very brand value the BBC is overzealously seeking to protect.

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How Surveillance Hurts Free Speech

Sunday's LA Times has a great opinion piece by political writer Julian Sanchez, situating the current debate over FISA reform within the long and sordid history of illegal surveillance in the US.

Going back to the '20s, Sanchez reviews multiple occasions when authorities have used spying powers not to protect the country, but to further the political aims of parties and politicians:

The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts — and the presidents they served — had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices — even Eleanor Roosevelt and the Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."

Sanchez traces the history of US government surveillance abuses by both Democrats and Republicans throughout the 20th century. He emphasizes that surveillance isn't just a threat to privacy — it's a threat to free speech. That's why today's wiretapping debate matters, even to those who may think they have nothing to fear:

It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.

The Atlantic Monthly's Matthew Yglesias follows up, putting the current legislative fight over immunizing telephone companies in context:

Given the long bipartisan record of wiretap abuse, and given the greater range of possible abuses under modern technological circumstances, it's all-but-inevitable that if we further weaken the restrictions on the White House's ability to act, that abuses will happen.

It's really baffling to me that Republican members of congress — and all-too-many Senate Democrats — don't see it this way. Unlimited, unaccountable power will be abused, and not always in ways that Republicans like.

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A Free Speech Double Whammy: Flawed Anti-Phishing Bill Would Dilute Trademark Fair Use and Anonymity Protections

Congress is contemplating a so-called “Anti-Phishing Consumer Protection Act” (APCPA) that takes an odd view of consumer protection. In the name of stopping phishing schemes, Senator Olympia Snowe has introduced S. 2661, a bill that would expand trademark law, limit consumer access to information about competitive products, and eviscerate key protections for anonymous speech. Co-sponsors are Senators Bill Nelson and Ted Stevens (yes, THAT Ted Stevens).

The bill starts off relatively inoffensively by prohibiting the use of false information to solicit identifying data from a computer (this was already illegal, but we’ll let that go for now). But then it goes on to forbid the use of brand names in domain names, and the use of another’s domain name in emails, on websites, or in web ads. This prohibition is unnecessary: if the use of a brand name in a domain name is confusing, it is already actionable under trademark law. And it is dangerous because, unlike current federal trademark law, the APCPA does little to protect noncommercial and comparative advertising uses of trademarks. For example, U.S. trademark dilution law excludes noncommercial, parodic and comparative uses. Under the APCPA, however, noncommercial use is merely a factor to be “considered,” not a clear exclusion, and comparative use is not explicitly protected at all. Given that trademark law simply doesn’t apply to noncommercial uses of marks, such meager “protection” for noncommercial use is unacceptable. Moreover, it appears that the bill would give a new weapon to folks like Sanofi-Aventis, the pharmaceutical giant that tried to use trademark law to shut down a news site about a new and controversial drug, Acomplia, because the site (www.acompliareport.com) included the name of the drug.

To make matters worse, another provision allows any Tom, Dick or Harry to force domain name registrars to reveal a customer’s personally identifying information by simply sending an email alleging that the customer has violated the new law. No need to comply with the traditional legal niceties of, say, an actual filed lawsuit or a subpoena that might permit the customer to go to court to protect her anonymity. A mere allegation is enough.

Sure, phishing is a problem. But you don’t solve it by rewriting trademark law and depriving lawful speakers of the chance to keep their identities private. This ill-conceived legislation should be stopped in its tracks.

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Julius Baer Drops Case Against Wikileaks after EFF, ACLU Help Restore Wikileaks.org Domain Name

Following a federal district court's reversal of its prior ruling that disabled one of the domain names of whistleblower site "Wikileaks," Swiss bank Julius Baer has decided that it has had enough. On Wednesday, Julius Baer filed a motion of voluntary dismissal, effectively ending the case. While the bank notes that it "may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue," that seems unlikely, at least in a U.S. court.

In early February, the bank filed suit against Wikileaks for hosting allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar.

Last week, EFF moved to intervene in the case, along with the American Civil Liberties Union, the American Civil Liberties Union Foundation of Northern California, and the Project on Government Oversight (POGO). arguing that the court's order order infringed on the First Amendment rights of Internet users who have an interest in accessing material of public concern on the site. Ruling from the bench, Judge Jeffrey White cited concerns about the First Amendment, the effectiveness of disabling the wikileaks.org domain name, and the court's own jurisdiction over the case as reasons to dissolve his previous orders. While Judge White permitted Julius Baer to proceed with its case, he suggested to the bank that it "take a deep breath" and decide whether litigation was really the right course given the cited difficulties.

We're glad to see Julius Baer abandon this ill-conceived lawsuit. The bank was never able to offer satisfactory answers as to why the case should even be heard in a U.S. court, let alone why the First Amendment rights of individuals who wanted access to other materials on the Wikileaks site should be held hostage while the bank tried (futilely) to pull down a handful of disputed documents. Julius Baer unwittingly demonstrated once again that the "Streisand effect" remains in force: attempts to censor material available on the Internet will almost invariably backfire, causing the information to be widely publicized.

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ABA Quietly Considers Anti-Consumer Proposals to Impede Keyword Advertising

When you type a word like "Chevrolet" into an Internet search engine, you aren't necessarily looking for the nearest dealership. You might be looking for independent information about Chevy's business practices, quality, compliance with emissions standards, or even information about how Chevrolets match up against their competitors. One of the best ways for competitors, critics and others to get that information to you is to place ads that use Chevrolet's trademarks as keywords, so that this information pops up when you run the search. That's why EFF has worked hard to stop efforts to use trademark law to impede keyword advertising. Through lawsuits and legislation -- like a law that was proposed in Utah -- trademark owners have tried to limit consumer access to information and block the ability of critics from using keywords to advertise their point of view, stimulate debate and mobilize support.

Now there is a quiet move in the American Bar Association's Intellectual Property Section to make the legal defense of such keyword advertising more difficult. An ABA committee is currently debating four resolutions on the issue, all of which have serious flaws, at best, and anti-consumer slants, at worst. And, some members of the committee are trying to keep this discussion from public view. The full analysis by Eric Goldman and myself shows why these efforts -- not to mention the committee's attempts to prevent public scrutiny of those efforts -- are deeply misguided and could help undermine the very purpose of trademarks: to improve consumer access to accurate information about goods and services.

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Between Friends: The Perils of Centralized Blogging

One of the paradoxes of current social software is how many of your closely-guarded secrets you are obliged to entrust to a third party. Take the social blogging site LiveJournal: its centralized server allows you to set blog posts to "friends only" or "private". To use this feature, you post these semi-confidential journal entries to LiveJournal's server, and rely on it to hide your thoughts from the most of the world using its centrally-maintained list of friends to control access. LiveJournal holds your secret data in trust, as much as you trust it to keep your public data available.

We give these companies a great deal of control over our privacy and our speech - and even if we trust that company with those responsibilities now, there are no guarantees that the pressures upon and motivations of that company will stay constant over time.

The news that LiveJournal has been sold to SUP, a Moscow-based company, is the latest vivid indication of this danger. Now, LiveJournal journal entries are under the control of not only a young new company, but a new jurisdiction: Russia. What does that mean for the privacy of LiveJournal posts, and the free expression of LiveJournal users?

Despite strong protections in the Constitution and the Electronic Communication Privacy Act, United States law is by no means a perfect guarantor of privacy. It surprises many people to learn that U.S. courts have in the past decided that the simple act of handing data over to a company removes many of your constitutional protections over that data (though statutory protections remain).And, despite the United State's long tradition of being a free speech-friendly country, Six Apart, in an apparent attempt to fend off external domestic pressure, has removed content and cancelled accounts in an arbitrary manner that could easily chill speech among its users.

Countries like Russia have, legally and culturally, weaker protections over privacy and free speech than many users might have come to expect. Legal considerations aside, LiveJournal may come under far more intense pressure when run from Moscow than from the United States. The site is very popular among Russian-speakers (the common word for blog in Russian is taken from the site's name), and is used by opposition politicians there as much as by enthusiastic fan-fiction authors. The political status of free expression in Russia is on shakier ground, with journalists, online and off, assaulted and threatened by the authorities.

LiveJournallers, already disturbed by acts of control by Six Apart, could well find themselves caught up in far nastier fights over the public and private content held by SUP's servers. That's of particular concern for Russian users, or the many Russia-speaking LJers in the former-Soviet republics that surround Russia, who do not necessarily trust the political or business culture of Moscow.

Fortunately, for those concerned by the implications, LiveJournal's legacy in the world of open source and open standards means that extracting data from the service is not as painful as it might otherwise be.

But for now, the most important lesson for Americans and Russians alike, is to be cautious about with who and where you share your secrets. The Internet has given us the opportunity to make public and secure our own data; hopefully the next generation of social software will give us the tools to use these capabilities for ourselves, rather than entrust the responsibility to others.

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Undermining Freedoms in China: Yahoo! Learns the Cost of Facilitating Human Rights Abuses

Yesterday, Yahoo! settled a US lawsuit with Shi Tao and Wang Xiaoning, two of the Chinese journalists who were imprisoned and tortured after their identities were handed over by Yahoo! to the Chinese authorities.

"It was clear to me what we had to do to make this right for them", said Jerry Yang in a statement today.

The terms of the settlement are secret, but the drubbing Yahoo! has received over this case has been excruciatingly public for the company. Few CEOs want to be described as representative of "moral pygmies" in a Congressional committee room.

Hopefully Yahoo!'s officers have learnt their lesson. Privacy and free expression should never be seen as something that can quietly be brushed aside when doing business in repressive regimes. We certainly hope, however, that Yahoo doesn't just view this as something they needed to "make right" once and that this spurs a broader movement by them and others to resist efforts to turn them into the handmaidens of oppression around the world.

Playing up to dictators can impose real costs on a Net company. If foreign Internet companies are to have any edge over local firms in these high risk markets, it is because the offer the possibility that they will not capitulate to the authorities, and will not bend to vague demands to restrict, or filter, or spy on their users for the local state. A defense of user privacy and free speech is, in the words of the marketplace, a "unique selling point" for US Internet companies in these markets, and they should trade on that fact, and design their technology to support these rights, not remove them.

The alternative - handing over data on political speakers, developing pro-active filtering tools and aggressively complying with the vague hints of the ruling bodies - opens companies up to the risk of lawsuits over here, and a swift race to the bottom with their domestic competition over there.

As companies like Google and Yahoo! have learned by hard experience, the bad publicity alone from facilitating human rights abuses is profoundly damaging to their global reputations.

But when seeking to prevent such behavior, it's important to remember that bad publicity can only have an effect on companies when there is publicity. It took a great deal of detective work to uncover what happened in the cases of Shi Tao and Wang Xiaoning. We do not know how many other dissidents have suffered in the same way from American online businesses choosing to ignore international human rights law. And in the rush to spotlight the failings of household brands here, the misbehavior of less well known Chinese giants, like Baidu.com, are often overlooked in the public policy debate - even when those companies benefit from domestic US capital markets like the NASDAQ.

Yahoo!'s decision to do the right thing by the families and friends of these imprisoned journalists should only be a start for that company. Hopefully, it will spur them to move from the back of the pack and become a leader among net companies of developing policies and practices that protect their users' worldwide.

EFF long ago proposed some basic principles for Congress to consider when drafting legislation to help companies doing business in repressive regimes to say "no" to human rights abuses. Maybe it's time to revisit them, and to urge Yahoo and others to take them on themselves, and for American investors to require that Chinese companies who want access to our capital markets comply as well.

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Court defends honest discussion of proposed trademark in <i>Freecycle v. Oey</i>

EFF welcomes a victory for online free speech in Freecycle v. Oey, a case from the Ninth Circuit Court of Appeals upholding the right to engage in open discussion about words companies are trying to trademark, without the fear of being sued by the companies under trademark law. EFF signed onto the amicus brief written by Stanford Law Professor Mark Lemley arguing that such discussions were not trademark violations.

The Freecycle Network Inc. (TFN) operates freecycle.org, a hub site for localized groups of people seeking a quick and easy way to give and receive stuff for free. TFN filed a federal trademark application for the term "freecycle." Tim Oey, once involved with TFN, took to the Internet to urge people to oppose TFN's effort to trademark the term, arguing that freecycling should be a grassroots movement. In emails to other TFN moderators and posts to message boards, he argued that the word "freecycle" should remain generic, free for anyone to use as a way to refer to the practice of giving away goods online.

TFN sued to squelch Oey's speech and moved for a court injunction prohibiting him from expressing his opinions. TFN argued that he had infringed and disparaged their trademark and managed to convince a district court judge in Arizona to grant the injunction. On appeal, however, the Ninth Circuit ruled that Oey's honest opinion about Freecycle's trademark rights could not be stamped out by a claim of trademark infringement under the Lanham Act. First, the decision correctly notes that Oey did not make any commercial use of the alleged "freecycle" mark in his emails and Internet postings. Second, it noted that there was no evidence that his activities were likely to confuse consumers or otherwise mislead the public. And third, and perhaps most importantly, the Court wrote:

Nor does the [Lanham Act] prevent an individual from expressing an opinion that a mark should be considered generic or from encouraging others to use the mark in its generic sense... TFN?s mere disagreement with Oey?s opinion and frustration with his activities cannot render Oey liable under the Lanham Act.

Ultimately, this decision is great news for consumers and users engaged in honest Internet discussions and stands as a sound warning to trademark owners not to misuse the law in attempts to squelch speech about their purported marks.

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Censorship in the Anglosphere: the UK and Australia

The growing global censorship of the Internet often goes unseen in the
English-speaking Net, because so much of it takes place in other countries,
and in other languages. But that doesn't mean that there aren't contemporary
threats to Internet free speech in the English-speaking world.

In the United Kingdom, two prominent blogs went dark this week after
publishing accusations regarding the Uzbek billionaire, Alisher Usmanov.
Lawyers representing Usmanov contacted the blogs' webhost, Fasthosts, and
after threats to sue under Britain's expansive libel laws, the blogs were
removed. The sites included Tim Ireland's popular "Bloggerheads" site, and
site of Craig Murray, the ex-Ambassador for Uzbekistan. Murray's hosting
provider even intervened to take down individual entries and alter the text of
Murray's blog to avoid further legal action. As Murray charitably noted on the
now deleted site:

... One of the edits to this log my webhost made at Schillings' [Usmanov's
lawyers] behest was to say that my claim was "regarded as false by many
people". I have altered that edit, because there is no justification for such
a claim. I have yet to see evidence of anybody, not one solitary person,
arguing that I am wrong about Usmanov, other than his lawyers. Who are these
"Many people", and why are they peculiarly silent?

I am very sympathetic to my webhost having to change things for Schillings,
but not to the extent of altering things to become defamatory of me!!!

It's a chilling reminder that censorship doesn't just mean that entire sites
can be removed from the Net, or that self-censorship will become rife. It even means that other, commercial third parties - whom you pay for service - might alter the very words credited to you online.

Few subjects of criticism have as enthusiastic lawyers as Usmanov.
But in Australia this week, the government introduced a bill that would let
the Australian government intervene in the Internet speech of all its
citizens, on the flimsiest of pretexts.

The Communications
Legislation Amendment (Crime or Terrorism Related Internet Content) Bill
would, as Electronic Frontiers Australia says, give the Australian police
powers to ban access to Internet content which "they have reasons to
believe":

• encourages, incites, or induces the commission of a Commonwealth offence;
  or
• was published in part to facilitate the commission of such an offence;
  or
• that it is likely to have the effect of facilitating the commission of
  such an offence.

In other words, entire sites can be banned in Australia for the merest
suspicion of potentially assisting a crime. Such a low threshold for
censorship, combined by the repeated calls by Australian politicians of all
stripes for a centralized, federal filtering of the
net, poses a real threat to speech and access to the Net in Australia. It's good to see groups like Electronic Frontiers Australia stand up to it.

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EFF FOIA Docs: Soldiers Rarely Blog Information That Threatens Military Operations

According to documents released to the Electronic Frontier Foundation (EFF) by the Army and Defense Department, soldier journalists post far less information that could harm military operations than official .mil websites do. These documents call into question the need for new restrictions on soldiers' online speech, which some critics say will cause military bloggers to cut back on their posts or shut down their sites altogether.

The documents, which EFF obtained through a Freedom of Information Act (FOIA) lawsuit, shed light on the work of the Army Web Risk Assessment Cell (AWRAC) [PDF], a unit that monitors official and unofficial military websites "for information and trends of data that could be used to breach security or pose a threat to defensive and offensive operations and military personnel."

According to statistics [PDF] obtained from the Army, the AWRAC spotted no more than 28 content violations on 594 military blogs (or "milblogs") between January 2006 and January 2007. In contrast, the unit found at least 1,813 content violations on 878 official military websites during the same period.

(The numbers cited in the Army's own documents vary widely, but we've drawn our conclusion on the figures we found that are most favorable to the military. However, the documents show that the number of content violations discovered may have been as as low as 14 on milblogs, and as high as 4,052 on official military sites.)

More after the jump.

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