As has been widely reported, EFF has filed suit on behalf of JibJab to defend the "This Land" animated short. As we reported last week, music publisher Ludlow Music Inc., owner of Woody Guthrie's "This Land is Your Land," had threatened copyright litigation against JibJab. In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.
That's a question we've started to hear lot since we started the Digital Television Liberation Project. The short answer: it's the technology mandate.
Rob Pegoraro writes in a recent Washington Post article about TiVo's bid to improve its product's functionality that "[If] a programmer or an engineer with a bright idea has to go to Washington, hat in hand and lawyers in tow, to request permission to sell a better product -- and is then told 'just wait awhile' -- we are on our way to suffocating innovation in this country."
The sad thing is, we're a lot further down that road than Pegoraro suggests.
Everybody wants Voice over Internet Protocol (VoIP), but nobody is really sure what the hell it is. Specifically, law enforcement groups and policymakers are engaged in a tug-of-war over whether the new communication service -- which routes phone calls over the Internet in a variety of ways -- is like the telephone system or a computer network.
As has been widely noted, yesterday, the FCC blessed 13 technologies as compliant with the broadcast flag. Including, TiVo to Go. Oh, heavenly joy! Oh, fortunate day! Our wonderful technological masters, those geniuses of centralized planning, have deigned to bestow on the public the ability to move video files between 10 separate devices with the use of a registered dongle. What visionaries! What prophets, who can see what is appropriate use of technology and what is not!
The FCC is considering whether to impose a "broadcast flag" content protection scheme on digital broadcast radio (a.k.a. DAB or HD Radio). The RIAA is pushing for the flag, which would impose FCC technology mandates on all future digital radio receivers. Apparently, the MPAA's success in getting preemptive FCC regulation of next generation televisions emboldened the RIAA to seek a similar regime for digital radio.
EFF has filed two sets of comments on this issue. Now, you may be wondering why we care about this little FCC backwater proceeding. After all, nobody has an HD Radio yet. The format might not even succeed. So who cares?
On August 5, 2004, 40 State Attorneys General wrote an open letter to P2P United, an industry group that represents many of the major peer-to-peer software vendors, such as Grokster, Morpheus, and eDonkey. In the letter, the AGs accuse the companies and their technology of illegal and unethical practices -- specifically, of contributing to the dissemination of child pornography, copyright infringement, spyware, and viruses.
OK, so I still don't have my jet pack. But at least I may soon have a TiVo for my radio.
You'll remember that the RIAA is complaining bitterly to the FCC about the possibility that, someday, consumers might have the ability to record digital radio (aka DAB or HD Radio) and automatically split the recordings into individual songs (like TiVo does for TV shows). EFF pointed out that having the FCC impose a technology mandate against this is a bit silly, when people will soon have the same recording capabilities for analog FM, DMX, Music Choice, XM and Sirius. (You already have this capability for mp3 webcasts, thanks to Streamripper.)
In news at once frightening and reassuring, a Sequoia electronic voting machine suffered a very public failure last week during a live demo. The machine worked fine with an English-language ballot, but failed to record votes with the Spanish-language ballot. The mistake was detected because the machine produced a voter-verifiable paper print-out:
"We did it again and the same thing happened," said Darren Chesin, a consultant to the state Senate elections and reapportionment committee. "The problem was not with the paper trail. The paper trail worked flawlessly, but it caught a mistake in the programming of the touch-screen machine itself. For some reason it would not record or display the votes on the Spanish ballot for these two ballot measures. The only reason we even caught it was because we were looking at the paper trail to verify it."
Last week, the Federal Trade Commission announced that it's seeking comment on how to define spam. Currently, the CAN-SPAM Act (PDF) describes a "commercial electronic mail message" as one whose "primary purpose...is the commercial advertisement or promotion of a commercial product or service."
The FTC wants people to comment specifically on how to determine whether a message's "primary purpose" is commercial.
In the latest development in the ongoing spat between RealNetworks and Apple over the iPod, RealNetworks has launched its Freedom of Music Choice campaign. "Consumers are getting a raw deal with the status quo in digital music, which limits healthy, open competition that drives down prices and encourages innovation," trumpets the campaign website.
Lovely sentiment. We couldn't agree more. But it's not as if Real is doing anything to change that status quo. After all, Real keeps its customers in DRM shackles that look pretty similar to Apple's FairPlay. In fact, Real's beef with Apple is really about keeping those shackles on its customers when they move songs to the iPod.
The New York Times today looks (reg. req.) at the many costs that will be imposed on consumers and businesses by the FCC's plan to apply the Communications Assistance to Law Enforcement Act (CALEA) to the Internet and require Voice-over-IP (VoIP) providers to build wiretap-readiness into their systems. The controversial wiretapping plan will further erode online privacy, increase the cost of both Internet access and Internet-based phone services, and hinder technological innovation (see previous Deep Links coverage).
JetBlue ignited a huge privacy scandal when the news broke that the airline secretly provided more than 5 million passenger records to Torch Concepts, a military contractor. Yet the Army Inspector General Agency concluded [PDF] that JetBlue did not violate the Privacy Act. The reason: Torch never looked up individuals by name, but instead used a computer to dig through and analyze their private information.
a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn't always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he'll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.
EFF has just announced that the JibJab suit has been settled. The resolution was a complete victory for JibJab, which will be entitled to continue distributing the "This Land" animation without further interference from Ludlow.
Two things made this outcome possible. First, JibJab's fantastic animation is a clear case of fair use, for the reasons described in detail in our earlier letter to Ludlow's attorney.
But also important was our other discovery: "This Land Is Your Land" has been in the public domain since 1973.
Deep in the darkest heart of your servers, there live files known as logs. They contain all manner of intensely revealing information about people who use your systems. Web server logs might show which URLs somebody has visited, for how long, and what they wrote on an anonymous message board. Email server logs can even contain information about who is sending email to whom.
The truly scary thing is that many Online Service Providers (OSPs) don't realize they're collecting all this personal data in their logs. Or, if they do know, they have no policy in place to protect the privacy of the people whose online activities they've routinely been logging.
The California Voter Foundation has published the Ten Things Elections Officials Can Do to Secure the Vote This November, and its number one recommendation is that voters be given the option to vote on paper wherever non-auditable voting technologies are used, providing everyone with the choice of "paper or plastic." We couldn't agree more.
Thanks to the efforts of secure voting advocates and our Secretary of State, California residents already have this choice, and EFF urges Californians to choose to vote on paper this November. EFF is working with a number of groups to get this policy adopted all across the nation.
The LA Times has an article [reg. req.] carrying news that the Transportation Security Administration (TSA) has officially confirmed what we've long known: the controversial CAPPS II passenger profiling system didn't die. It simply spent its summer vacation at the clinic and spa, getting a not-so-extreme makeover.
Imagine a list of suspected terrorists so dangerous that we can't ever let them fly, yet so innocent that we can't arrest them -- even under the draconian provisions of the Patriot Act.
This is the federal government's "no-fly" list. First circulated in the weeks after 9/11 as a counterterrorism tool, its details are shrouded in secrecy.
But, because the list is filled with inaccuracies and ambiguities, thousands of innocent, law-abiding Americans have been subjected to lengthy interrogations and invasive searches every time they fly, and sometimes forbidden to board airplanes.
It is impossible to strike down software like Grokster for its use in illegal file-sharing without also destroying its capacity for legal and socially beneficial activities.... Freedom of information is at the root of American democracy, and yet every day we see that freedom being compromised, controlled and limited. The Grokster decision is a ruling in favor of keeping our bets open about which technologies will turn out to serve our freedoms best.
The Federal Circuit today affirmed [PDF] that the DMCA does not "divest the public of the property rights that the Copyright Act has long granted to the public." The court ruled that that Skylink's universal garage door opener does not violate the DMCA Section 1201(a)(2). (See EFF's Chamberlain v. Skylink archive.)
Chamberlain had claimed that Skylink's sale of interoperable garage door remotes violated the DMCA ban on trafficking in circumvention devices. The court rightly rejected that argument, saying that DMCA prohibitions must be tied to copyright rights to fit the balance copyright embodies.
- Fair Use and Intellectual Property: Defending the Balance
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