LendInk, an innovative site dedicated to helping readers share their legally purchased ebooks with one another, has chosen to shut down in the face of legal intimidation. Despite the fact that the site was apparently operating within the terms of service of the Amazon Kindle and the Barnes & Noble Nook, its hosting company was targeted with "hundreds of threats," including cease-and-desist letters.
LendInk didn't even host any ebooks itself: it simply connected users seeking a particular title with other users who had a legally-purchased ebook to lend. The site planned to eventually make money by providing links to purchase books through the Amazon affiliate program, but for the past year it had been operating without income.
This shutdown sets a dangerous precedent for the future of innovation in the ebook world. It creates confusion for consumers about what behaviors are actually legal and will likely have a chilling effect on entrepreneurs that could otherwise create new businesses — and new profit centers for the publishers. In an interview with Digital Media Machine, LendInk's owner Dale Porter expressed his disappointment in having to shutter his business:
I am simply a hard working guy that was trying to provide a legit service. ... Sadly, it appears that my American Dream has been left as road kill at the hands of misguided individuals.
That those misguided individuals were able to target his site so effectively is a potent reminder that free speech is only as strong as the weakest link. In this case, the threats took the form of cease-and-desist letters to his hosting service — and as a result, he hasn't even had the opportunity to review the notices himself. As he told Digital Media Machine, it's not even clear yet whether the notices are from authors, publishers, or both.
But it's clear that the individuals are misguided, because LendInk only enabled activities that had already been approved by the rightsholders. In fact, all of the lending enabled by the site took place through the built-in Kindle and Nook lending features, which are extremely limited in comparison to a traditional book. Not only is it limited to ebooks that have been explicitly "lending-enabled," but each copy of the ebook may also only be lent exactly once for a total of 14 days. Loans can only be initiated by a user in the United States, but may be unsuccessful if the recipient is in a country with additional geographic restrictions.
Of course, these barriers come from contracts, not from limitations in the technology. It's clear that while ebooks could in theory be more flexible and versatile than paper books, prohibitive licenses have prevented that from happening.
As author and EFF Fellow Cory Doctorow has put it, "Everyone knows that it's a bug and not a feature that if one person is reading a book, someone else can't." Instead of trying to patch the bugs that afflict traditional books, publishers use DRM software and restrictive licenses to suppress the potential new features.
Some of these efforts even attempt to unravel the first sale doctrine, which has long been a cornerstone of U.S. copyright law. That principle means that "if you buy it you own it," and it's the way used bookstores can exist. Indeed, it is essential to real-world book-sharing communities like BookCrossing and BookMooch.1
The legal threats against service like LendInk are not about sales. Rather, they are just the latest efforts in a wrongheaded campaign to crush any segment of the content distribution chain that lies outside of the rightsholders' traditional direct control. The same mindset drove Warner Brothers to sue Redbox, the kiosk-based DVD rental operation, even though it was perfectly legal under the first sale doctrine. It's led Capitol Records to sue an emerging marketplace for "second-hand" digital music, even though used music sales have existed for decades. It's even behind the Association of American Publishers' stubborn opposition to a treaty that could end the "famine" of accessible books that devastates the visually impaired community.
Needless to say, this mindset can only result in less innovation. And that's bad for readers, it's bad for platform developers, and in the end it's bad for publishers, too.
1. The founder and administrator of BookMooch, John Buckman, is also the chairman of the EFF board of directors.
We at the Electronic Frontier Foundation would like to thank everyone who took a moment to support our work this summer with a donation, a kind word, a name drop in your presentation, or a stop at an EFF talk at the Black Hat USA, Security BSidesLV, and DEF CON conferences in Las Vegas. We appreciate you stepping forward to recognize that there is a continuing battle to protect not only Coders' Rights, but online freedom for everyone. It's people like you that are helping EFF stem the tide of eroding civil liberties.
EFF's online rights defense is largely funded by individuals making modest contributions. We aren't funded by tax dollars or client fees so we mean it when we say that every dollar in our humble donation bucket makes a difference. This annual Las Vegas excursion is meaningful to us in so many ways. It's become a tradition for many of you to renew your EFF membership at every DEF CON, pick up the new member swag, or find/create some other creative way to help the cause - like getting your summer mohawk!
The list of EFF supporters and allies in the infosec community is numerous, but we would like to mention a few of the folks who helped make this year so successful:
Ninja Networks for always managing to impress and inspire with their creativity and innovative spirit. Thanks for devising an incentive to donate to EFF, donate blood, and register with Be the Match.
Eddie Mize for directing some artwork proceeds to EFF AND for donating original artwork for auction;
Chris Hoff and his deliciously charitable FAIL Panel Waffles;
Stealth for running the Hackers and Guns firearms training simulation benefitting EFF;
The information desk staffers for taking up a collection for us;
Hacker Jeopardy for raising money for EFF (what beautiful challenge coins!);
Mohawk-Con for jubilantly shaving attendees to support EFF, Hackers for Charity, and local hacker spaces;
And Dark Tangent and DEF CON for their perennial support and helping people understand the function we serve for the community.
Just this week DEF CON took the charitable spirit further by making EFF a beneficiary of their name-your-price DCXX musical compliation. We even spotted an Artist Badge auction for EFF! These are just some of the innovative independent fundraisers that we know about. We are grateful to everyone who found a way to support our work.
This special DEF CON anniversary included an appearance by National Security Agency chief General Keith Alexander, and we were pleased that attendees took the opportunity to voice their support for our long-running case against the NSA's warrantless surveillance program. Note General Alexander's DEF CON Kids shirt and the lovely logo on his sleeve! You can see some of our favorite photos from this year on Facebook and Google+.
Donors like you have funded our activism and our work in the courts every day. Thank you for helping us change the game.
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Update 8/16/2012: We have read with a lot of interest Bruce Schneier and Valerie Aurora's thoughtful blog posts and the comments posted there. EFF recognizes that defending rights in the digital world means more than just standing up for abstract principles. It means supporting the users and developers who want to make technology better. EFF wants to do everything in our capacity to ensure that individuals at EFF-related events are respected and protected from harassment.
We appreciate the many individuals who dedicate their time at DEF CON and other conferences to fundraise for EFF. Their contributions are vital to our work. But we are deeply concerned by the reports of harassment and other inappropriate behavior at some EFF-related events. Harassment and assault at events like DEF CON and fundraisers for EFF run contrary to our mission.
We are actively discussing the various things EFF can do to take a leadership role in creating a more welcoming environment for women at DEF CON and all of the conferences we attend. To assist us, we have been working with the Ada Initiative, a non-profit with expertise in supporting women in open technology and culture.
As we work through this process, we encourage anyone to send recommendations and other feedback to email@example.com. Thanks in advance for your help.
Update 8/23/2012: There are a couple of incorrect claims floating around in the midst of this story and we at EFF want to make sure the record is clear.
1) The Summit party is thrown to benefit EFF, not by EFF, and we're grateful to the organizers. There was an incident in 2011, unfortunately, of a guest harassing another guest. We know the woman who was harassed. Here, the co-host of the party talks about what happened and how upset she is that it happened. This incident was the one of the incidents that led to the creation of the color cards this year and we supported that effort too.
2) EFF has never hired any strippers for any party. Period. The two women who we think are being referred to (it's not clear) are longtime Defcon participants who help run the Hacker Jeopardy event. This is a different event from the Summit party. Hacker Jeopardy did donate money to EFF this year, but the event is not run by EFF either, and we understand that these women decided for themselves (as it should be for all women and men) what to wear or not at the event.
3) EFF brings many women to Defcon every year. We're speakers, we work at the booths and we work hard both at the conference and before it to ensure that hackers of all genders are free to hack and speak freely at Defcon and beyond. A safe atmosphere at Defcon -- for everyone -- is important to us. As we mentioned last week, we're working to help ensure that this is the case at Defcon and at every conference we attend.
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.