Jordan is one of a handful of countries in the Middle East that does not censor access to websites.1 Instead, the government has taken a more liberal approach to Internet regulation, and as a result has attracted companies like Google and Yahoo!, both of which have offices in the capital city of Amman.
Though in nearly every country there exists a contingent of people that wish for a censored Internet, the Jordanian government has not heeded their calls—that is, until recently, when the Ministry of Information and Communication Technology stated publicly that they were working with an unnamed Australian company to develop a system for filtering pornographic websites. Furthermore, several Jordanian Internet Service Providers (ISPs) have received letters from the Telecommunication Regulation Commission (TRC)—which oversees telecommunications in Jordan—directing them to block pornographic websites.
Though, to their credit, the Ministry responded to calls for censorship by offering free filtering software on its website—an excellent alternative to mandating national filtering—the action undertaken by the TRC is cause for alarm.
The first concern is the issuing of a filtering directive without due process. Jordan is a Constitutional Monarchy with an elected Chamber of Deputies/House of Representatives, and its Constitution guarantees the right to free expression. The country is also a signatory to the International Covenant on Civil and Political Rights (ICCPR), and while Article 19 of the Covenant allows for restrictions of free expression for the protection of morals, among other things, such restrictions may only be imposed by law and must be justified as necessary [Paragraph 3]. So while lawmakers may find it justifiable to censor pornography, no such law currently exists in Jordan.
In addition, as UN Special Rapporteur on Freedom of Expression and Opinion Frank LaRue wrote in his 2011 report, "Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3."
Second, the directives issued to ISPs by the TRC place responsibility for filtering on intermediaries. As we’ve stated before, EFF believes that it is not the role of intermediaries to serve as gatekeepers for law enforcement (or, in this case, enforcement of a non-law). ISPs are not best-placed to determine what constitutes pornography or where the line ought to be drawn. Furthermore, there appears to be no transparency in the selection of URLs or keywords to be blocked, leaving ample room for error. Back in 2009, when Australia tested a similar scheme, it was discovered that the list of sites to be blocked contained, among other things, the website of a dentist.
Ultimately, the entire endeavor is problematic. Whether enacted through proper legislative measures or through extralegal means, large-scale filtering systems can be all too easily misused and abused. EFF calls on Jordan’s Ministry of Information and Communication Technology to keep the country’s Internet open and uncensored.
In a welcome course correction, craigslist has removed its short-lived provision that required users to grant it an exclusive license to--in other words granting them ownership of--every post. We were unhappily surprised to see this click-through demand, but are glad to see that craigslist has promptly removed it.
For many years, craigslist has been a good digital citizen. Its opposition to SOPA/PIPA was critically important, and it has been at the forefront of challenges to Section 230 and freedom of expression online. We understand that craigslist faces real challenges in trying to preserve its character and does not want third parties to simply reuse its content in ways that are out of line with its user community’s expectations and could be harmful to its users.
Nevertheless, it was important for craigslist to remove the provision because claiming an exclusive license to the user’s posts--to the exclusion of everyone, including the original poster--would have harmed both innovation and users’ rights, and would have set a terrible precedent. We met with craigslist to discuss this recently and are pleased about their prompt action.
The exclusive license was first noticed about a week ago, shortly after news broke of craigslist’s lawsuit against 3Tap and PadMapper. The posting provision said:
Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.
Under copyright law, an exclusive license is a “transfer of copyright ownership” (17 U.S.C. § 101). If upheld, it would have meant that craigslist owned every post that you made (assuming a court would find clicking “Continue” was equivalent to an “instrument of conveyance … in writing and signed by the owner” (17 U.S.C. § 204)). The change appeared to fit in with the lawsuit, which sued, in part, over alleged infringement of these newly-minted exclusive rights.
craigslist demanding ownership of user posts would have potentially meant that users couldn’t republish their ads on multiple services without risking a claim of infringement. And while not every craigslist post is going to go viral and have real value outside the original context (like the “Jesus Tap-Dancing Christ” car ad), users still need the right to post and repost their material in a variety of venues. Moreover, removing the exclusive license provision retains craigslist’s compatibility with common licensing schemes, like the Creative Commons ShareAlike license or the GNU Free Documentation License. And craigslist’s change lessens the chance that other websites will start demanding ownership of the content you post there.
Disclosure: Craig Newmark, founder of craigslist, is a member of EFF’s Advisory Board, and craigslist has donated to EFF.
When New York Magazine reported that Twitter had declined an NYPD request for identifying information about a Twitter account that had allegedly been posting death threats since May, Harrison Weber at The Next Web titled his response: “Twitter Withholds Information from Police After Troll Threatens Murder.” While this language may make for an attention-grabbing headline, the facts are decidedly more complicated.
In his article, Weber cites the recent Guy Adams case to illustrate why Twitter has to “tread extremely carefully on this one, as it has recently received criticism for over-policing its platform.”
In fact, while we were extremely critical of Twitter’s actions in the Adams case, the two don't warrant comparison. Whereas Twitter believed it was acting on the letter of its terms of service in respect to Adams’ tweets, in this situation the company has taken a clear stand in respect to the law: Twitter will not, in most cases, hand over user information without valid legal process.
Here’s what happened: According to the original New York Post article, NYPD detectives sent an “emergency request” to Twitter to unmask the user. Twitter declined the request with the following response:
“While we do invoke emergency-disclosure procedures when it appears that a threat is present, specific and immediate, this does not appear to fall under those strict parameters as per our policies.”
Twitter has certain legal obligations under the Stored Communications Act, which regulates when and how a service provider can disclose information to others. Twitter is not required to turn over information to law enforcement agents in an emergency, but—under 18 USC § 2702—may do so if it, “in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.”
Despite the fact that Twitter did not deem the tweets to be immediate threats, the NYPD dispatched officers to a location proposed in one of the Twitter user’s alleged threats.
The prospect of Twitter handing over user data to law enforcement on the basis of a simple, informal request—rather than formal legal process like a subpoena, court order, or a warrant, which are subject to varying degrees of oversight from courts—has tremendous implications for Twitter as a platform supporting international freedom of expression. According to Twitter’s first Transparency Report, Twitter received 170 government requests for user information from countries other than the United States between January and July of 2012.
Because Twitter’s policy is to require valid legal process before it will hand over user data, very few of these requests were granted in part or in whole. But if Twitter were to loosen this requirement—as many of yesterday’s commentators have suggested it ought to—it would make it far easier for governments to violate user privacy and demand information be censored.
In other words, if Twitter were to give up the identity of a user to the NYPD based only on a request (as opposed to a court order), what’s to stop them from giving up the identity of a user who breaks Turkish law by “insulting Turkishness” to Turkish authorities, or a user who criticizes the King of Thailand—a crime under the country’s lese majeste laws—to Thai authorities?
Subscriber Liability Still on the Books After Hadopi Defunded
Citing extraordinary costs and scant results, a high-level French official has announced intentions to defund Hadopi1, the government agency charged with shutting off Internet access of individuals accused of repeat copyright infringement. Under the French three strikes law, Internet subscribers whose connection is repeatedly used to share copyrighted material may be disconnected from the Internet and may even have to continue paying for the service (the so-called "double pain"). The three strikes law in France runs contrary to principles of due process, innovation, and free expression—yet has unfortunately served as a template for similar legislation in countries like New Zealand, the UK, and South Korea under pressure from the entertainment industry. Defunding Hadopi may mean that France won't be focusing on enforcing its three strikes law anymore, but that's not enough. France needs to repeal the three strikes law altogether.
When copyright holders (working through professional organizations) file complaints about alleged infringement, Hadopi is authorized to contact Internet access providers and issue warnings to subscribers. After the third warning of copyright infringement is issued to a subscriber, Hadopi can recommend to a public prosecutor that the individual have her Internet connection terminated. Hadopi also maintains a blacklist of subscribers to block users from simply switching ISPs after being disconnected. Though hundreds of alleged infringers have been referred to court—Hadopi has sent 1 million warning emails, 99,000 "strike two" letters, and identified 314 people for referral to the courts for possible disconnection—no one has yet been disconnected since the law was enacted in 2009.2
In speaking about the decision to significantly reduce funding for Hadopi, French culture minister Aurelie Filippetti, stated: "€12 million per year and 60 officials; that's an expensive way to send 1 million emails." Filippetti also stated that "[T]he suspension of Internet access seems to be a disproportionate penalty given the intended goal."
We're glad the French administration is acknowledging the enormous financial costs and inefficacy of Hadopi, and we couldn’t agree more that cutting off Internet access is an overblown legal response to alleged copyright infringement. But simply defunding Hadopi is not enough. The law that created Hadopi is still in place—a legal framework which, in years to come, could be funded once more and used to shut down Internet access of those accused of copyright infringement. Such laws have been expressly criticized by the UN Rapporteur on Freedom of Expression Frank La Rue, who reported that he was "alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights," citing the French three strikes law specifically and condemning such frameworks as human rights violations. We second La Rue's concerns and add that the French law can terminate Internet access of subscribers merely accused of copyright infringement—regardless of whether a court ever proves that copyright was violated.
The three strikes law and the decree that was enacted shortly thereafter also created a dangerous negligence standard in which the Internet subscriber is liable for all unlawful activity on her network, even if the subscriber herself has no idea the connection is being used for unlawful purposes. Negligence in this context is defined as "not having put in place security measures” or having “lacked diligence in putting in place these measures"—perhaps even something as simple as a weak wireless password. This creates a new obligation to secure one's Internet connection, creating legal liability for individuals and businesses that open their wireless networks. This is in sharp contrast to countries like the United States, where subscribers have a number of protections if someone else uses their connection for unlawful purposes. The French law creates an unfortunate impetus for closed and/or carefully surveilled networks, which contributes to a world where open and accessible Internet is harder to find.
Repealing the three strikes law in France would send a powerful message to content industry lobbyists pushing an agenda of ham-fisted enforcement in countries worldwide. It would also help correct a legal imbalance that currently gives content owners unfair and disproportionate enforcement rights in France, at the expense of Internet users’ rights to read and access content online. So while EFF applauds France’s decision to defund Hadopi, we urge them to go a step further and repeal the three-strikes law altogether.
To combat the spread of these anti-speech laws, EFF and a range of international partners launched Global Censorship Chokepoints last year to document the spread of three-strikes proposals and coordinate efforts to fight them. We’re very proud to work with our partners in France, La Quadrature Du Net, in fighting the three strikes law there. And we’re also busy preparing to launch an Open Wireless Movement, a network of individuals and organizations promoting password-free WiFi. Stay tuned to Deeplinks and EFFector to learn more.
1. In French: Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet
2. Unlike in South Korea, where under a similar law users have been suspended or disconnected since 2010.
These terms are detrimental to creativity and innovation and only serve to benefit the major record and movie production companies who lobbied for them in the U.S. Now starting with the Pacific region, these exorbitant counterproductive terms could be imposed on countries with more progressive copyright laws through the force of the TPP. Making these terms part of trade agreements is part of a general move towards “forum shifting” and “policy laundering” of the IP policy discussion away from places where there is at least some requirement for public input and transparency, such as Congress.
There are many problematic issues around enacting such long copyright terms into an international agreement. Primarily, it would force everyone living in a TPP signatory country to pay a heavy price in continued royalties for content. For example, one scholar estimated that the copyright extension has resulted in Australians sending an extra $88 million per year in royalties overseas.1 This is particularly troubling because international law has been exploited to escalate the scope of copyright. The incorporation of international copyright obligations into national law does not focus on whether the protection is “economically, culturally, or socially desirable.” Rather, it presents new lobbying opportunities for the entertainment industry that can result in broader copyright regimes than required by the international obligations, which in turn could be used back home to demand matching legislation.
Under this proposal, if the copyright holder is a natural person (an individual), the copyright term would extend to the lifetime of the creator plus 70 years after her death as a minimum. On average, this means that a work could only enter the publicdomain after almost 140 years.2 This provision in particular surpasses restrictions as laid out in the US Copyright Act that sets the 70 years as a ceiling,3 whereas TPP sets the 70 years term as the minimum requirement. In the case of published works whose copyrights are owned by corporations, the term of protection would extend to 95 years from the first publication. Finally, corporate works that were not published within 25 years of its creation, are protected the term of protection is 120 years from the date of the creation.
The common justification for granting restrictive monopoly rights in copyright law is to provide an “incentive” for people to generate material that can be enjoyed by the public. But economists and law scholars who have studied this rationale have found that “the optimal length of copyright is at most seven years.”4 Long copyright terms are a poor recipe for compensating creators, who generally receive lowroyalties from their works.5 And yet, the strong copyright lobby preventsanyrecommendation to reduce the presently excessive terms, attacking any attempt to speak for the public domain or for users rights and dazzles politicians with nonsensical “copyright math”.
Copyright law gives rightsholders exclusive rights to use and profit from creative works, and, in theory, secure economic rights to the creator for their efforts. In most cases however, this right has been abused in a way that deprives the public of valuable culture and knowledge. Lengthy copyright terms are simply not needed to incentivize creativity. Not only is this most plainly obvious where terms extend past the life of an author, the public domain is a necessary source from which authors can learn and create. It is the fueling source of our shared culture, and it recognizes that we are always “building on the past”. Significantly, “[t]he more we tie up past works in ownership rights that do not convey a public benefit through greater incentive for the creation of new works, the more we restrict the ability of current creators to build on and expand the cultural contributions of their forebears.”6
As proposed by Boyle [pdf - pg 51], “our intellectual property system should be audited like any other government subsidy to make sure that we are getting what we pay for, and not paying too much for what we get.”
If you're in the US, please call on your representatives to oppose Fast Track for TPP and other undemocratic trade deals with harmful digital policies.
Professor Yochai Benkler on how copyright’s “enclosuremovement” poses a risk to “the First Amendment commitment to attain a diverse, decentralized marketplace of ideas.”
1. “The net effect is that Australia could eventually pay 25 per cent more per year in net royalty payments, not just to US copyright holders, but to all copyright holders, since this provision is not preferential. This could amount to up to $88 million per year, or up to $700 million in net present value terms. And this is a pure transfer overseas, and hence pure cost to Australia.” Report: The Australia-US Free Trade Agreement - An Assessment Dr Philippa Dee, APSEG, Australian National University p. 23 (box) and 33 (2004). http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=freetrade_ctte/rel_links/index.htm
2. Based on 2010 data of U.S. and worldwide life expectancy (Source: World Bank).
3. Jodie Griffin (2011) Inconsistencies Between the TPP and U.S. Law: http://www.scribd.com/doc/87356010/Inconsistencies-Between-the-TPP-and-U-S-Law (PDF)
4. Gowers Review of Intellectual Property, p. 50 (Dec. 2006) citing Growth and Intellectual Property, Boldrin M. and Levine D., 2005.
5. For instance, in regard to performers rights, the Cambridge University Centre for Intellectual Property and Information Law has reported that the benefits of “ any extended term would go to record companies rather than performers: either because the record company already owns the copyright or because the performer will, as a standard term of a recording agreement, have purported to assign any extended term that might be created to the copyright holder.” thus questioning whom is the actual beneficiary of such expansion.
6. Dennis S. Karjala, Opposing Copyright Extension, available at http://www.public.asu.edu/~dkarjala/commentary/term-of-protection.html.
NASA's successful landing on Mars of an SUV-sized nuclear rover from a rocket-skycrane should have marked a high point in collaborative accomplishments between humans and robots. But here on Earth the situation was a bit more tense. That's because, just hours after the celebrated touchdown, Vice Magazine's Motherboard blog broke the news that one of NASA's official clips from the mission had been pulled from YouTube, replaced with a notice from the video site indicating that the "video contains content from Scripps Local News, who has blocked it on copyright grounds."
Motherboard points the finger of blame at the DMCA, the law that provides the terms under which online service providers must enforce copyright policies in order to avoid liability. But as Ars Technica has since pointed out, the problem likely lies not with the DMCA itself, but with the additional (and voluntary) automated Content ID system YouTube has developed. Content ID uses digital fingerprinting technology to identify duplicate audio and video on YouTube and, depending on the "business rules" configuration of the designated rightsholder, blocks or places ads next to videos. Unfortunately, the robots behind that copyright enforcement machine have the tendency to shoot first and ask questions later, even when it ends up silencing real — human — speech.
The balance struck in the DMCA is not perfect, and it's certainly subject to abuse. For example, the clause saying that takedown notices must be sent in good faith under penalty of perjury very rarely shows its teeth. And even in cases where content is non-infringing and the uploader is willing to file a counter-notice, the accuser gets 10-14 days of censorship for free, before the service provider can put it back up. In the case of newsworthy videos or commentary on current events, those 10-14 days can make or break the message.
Despite this, the DMCA at least strives to limit those abuses by, among other things, providing an appeal process with a safe harbor for providers who allow content back up after a counter-notice.
Content ID, by contrast, is an opaque and proprietary system where the accuser can serve as the judge, jury, and executioner. There is an official dispute mechanism — and where it's effective it can be easier than a DMCA counter-notice — but in cases where a user runs into a dead-end she has little recourse.1 The Content ID system tips whatever balance is present in the DMCA and allows even more pernicious forms of manipulation and abuse. In a Wired column earlier this year, Andy Baio enumerated some of the problems that YouTube users encounter:
But even without taking scammers into account, the premise behind Content ID is just incompatible with fair use and the public domain. It's impossibly complicated to define in a set of "business rules" for automated enforcement. Allowing Content ID robots to apply the rules leads to oversimplification that chills legitimate speech.
A spokesperson for Scripps, the news agency behind the Content ID takedown of the NASA video, sent a response to Motherboard apologizing for the "temporary inconvenience." But it's not even clear that a user without NASA's large audience and uncontroversial content would get the same treatment.
Of course it's within Google and YouTube's rights as companies to set whatever policy they want for posting videos to their sites. But by tipping the scale towards copyright holders who can stifle speech through negligence or overreach, they are not exercising good citizenship as a platform. In order to avoid stifling expression through videos, YouTube and other platforms should ensure that they follow the fair use principles for user-generated content put forth by EFF, Public Knowledge, and other groups.
The consequences of these problems are real, and best summed up by a NASA spokesperson in a comment to Motherboard:
“We spend too much time going through the administrative process to clear videos slapped with needless copyright claims,” says NASA’s Bob Jacobs. “YouTube seems to be missing a ‘common sense’ button to its processes, especially when it involves public domain material paid for by the American taxpayer.”
Jacobs is right: this is a question of common sense. These videos belong in the public domain as a part of our cultural and scientific heritage. Their availability shouldn't be curtailed because YouTube wants to make its copyright enforcement system friendlier to private rightsholders.
1. The original version of this post didn't mention the official Content ID dispute process. It's been updated to reflect that.
Essentially, on a complex statutory analysis, the court ruled that the only claim left in the case, for money damages under 50 U.S.C. section 1810, could not be brought against the government itself, and instead could only be brought against government officials in their individual capacity. The court then ruled that the specific claims made against an official in his individual capacity, FBI Director Mueller, were not sufficient and could not be amended.
While the analysis is complex, the upshot is clear and very troubling.
First, the Court ruled that Congress in passing this section of FISA created a cramped statute that, at least in section 1810, only allows a claim for redress if the government uses the information it illegally gathers, and creates no a remedy against the government for the unlawful collection of information. Apparently, when it came to granting a legal claim for damages, Congress intended to allow the government to do as much wiretapping in violation of the law as it wanted to, and only allow individuals to sue for use of the information illegally collected. It seems unlikely that the American people believe that the line should be drawn in this strange way.
Additionally, the ruling certainly does not exonerate the government. To the contrary, the best that they could say is that they they got off on a pure technicality of Congressional drafting. There is nothing in this opinion, or in the whole course of this litigation, that undermines the basic revelation: that President Bush authorized the warrantless illegal and unconstitutional wiretapping of the two attorneys helping this accused -- and now defunct -- charity in their lawful, privileged communications with their client. No one should take this as a vindication of the Bush-era policies (or Obama's continuation of them).
Finally, this ruling will have little, if any, affect on the EFF's ongoing litigation Jewel v. NSA, where we seek to stop the ongoing surveillance of millions of innocent Americans, also without proper warrants or other judicial oversight. Jewel has many causes of action, not just 50 U.S.C. section 1810, and it seeks an injunction to stop ongoing behavior, not just monetary damages for past acts. So while we don't agree with the Ninth Circuit's ruling here, it will not prove a roadblock to our efforts to stop the spying. We've moved for a ruling in the Jewel case that FISA preempts the state secret privilege and hope to have that motion heard by the District Court in the fall.
Last week, the Seventh Circuit Court of Appeals issued an opinion in Flava Works v. myVidster, a case that raises questions about embedded videos and copyright infringement. Judge Richard Posner, who wrote the opinion, has a reputation for producing memorable and influential ruling, and this one is no exception. (You might remember that Judge Posner also recently issued an important ruling in a patent case between Apple and Motorola.) In reversing the injunction granted against myVidster, the Seventh Circuit wholly rejected the premise that embedding, linking to, or watching infringing videos constitutes infringement itself.
First, some background: Flava Works, a video company that makes full-length videos available only behind a paywall,1 sued MyVidster, a social video bookmarking site that allows users to save videos to a profile and share pages containing embedded videos with other users. Last summer, the district court sided with Flava Works and granted an injunction. The district court got it wrong on at least two counts. First, the Court failed to apply the appropriate standard for injunctive relief and second, the Court mistakenly found that myVidster’s users infringed Flava Work’s copyrights.
Fortunately, the Seventh Circuit agreed.
First, though the standard for an injunction may seem like an obscure procedural point of dispute, it’s an important one. When out of balance, it can have a profound chilling effect on free speech and innovation. In fact, we made this very argument in an amicus brief we filed along with Public Knowledge:
Many of these nascent entities cannot survive an extended interruption of operations pending lengthy litigation. An unbalanced standard for preliminary injunctions in copyright litigation therefore can easily chill innovation, as services are effectively put out of business long before a court can ever reach a determination on the merits of the infringement claim.
As to the substantive issue of infringement, the Court held that embedding videos does not constitute infringement. Simply put, people who download Flava Works videos and then re-upload them to another server (thereby making a copy of the video) may be infringers, but neither myVidster nor the users who watch videos embedded on its site are engaging in or contributing to infringement. From the decision:
myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work.
In the ruling, Judge Posner also draws the meaningful distinction between copyright infringement, theft, and other actions that may reduce a company's income. Rhetoric from the copyright lobby often conflates these disparate concepts. An op-ed in the New York Timesmade the point earlier this year: “We should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind.”
For example, as Judge Posner wrote, a Flava Works employee embezzling corporate funds may be stealing and reducing the company’s income, but he is not infringing copyright. A person who sneaks into a movie theater to watch a copyrighted movie — like one who bypasses the Flava Works paywall by watching embedded videos on myVidster — isn’t infringing, either. Stealing a book from a bookstore and reading it “is a bad thing to do,” says Judge Posner, but again it is not copyright infringement. Considering how companies have abused copyright law for years to squelch competition and silence unflattering speech, this recognition is a major one.
A final remarkable fact about this myVidster decision is how it compares to another decision Judge Posner wrote nearly a decade ago. The Aimster decision found that an injunction could be granted against a file-sharing service even when its operators had no knowledge of specific infringements. Of course many factors contribute to the difference between these cases, but the ruling in myVidster seems to reflect a growing recognition of a long imbalance in copyright law that needs to be fixed. Even more so, this ruling reflects an understanding by the Court of the way we actually use the Internet. It's not just about swapping files, but using the cloud, streaming, and linking. And it’s not just college students sharing data — it’s the way people do business everyday. There’s no way to know whether this cultural shift really changed Judge Posner’s mind, but we can’t help but speculate that increased use of and understanding of how technology actually works will lead to more rulings like this one.
This case is far from over — last week’s decision just overturns the preliminary injunction before the actual arguments begin — we hope to see more rulings like this one that protect young, innovative companies from abusive claims of copyright infringement.