Copyright troll Righthaven's flawed business model—suing hundreds of bloggers and small websites for dubious cases of alleged copyright infringement of newspaper articles—appears to be grinding to an inexorable finish. But even as the Righthaven cases prove that litigation isn't going to magically make print media profitable in the age of the Internet, a new generation of journalists and creators are adapting to the digital world—including one of Righthaven's former clients.
Last week, reports were circulating that Righthaven was on "life support" after admitting that they aren't currently filing more lawsuits and are apparently teetering on the edge of bankruptcy. Even Righthaven's former clients are beginning to see the light. Last week, John Paton, the new CEO of the news conglomerate MediaNews Group, called the decision to engage Righthaven for copyright enforcement "a dumb idea from the start." MediaNews Group was a major Righthaven client, responsible for about 50 lawsuits.
We couldn't agree more with Mr. Paton's view, and we applaud MediaNews Group's decision not to renew its relationship with the copyright troll. The efforts of Righthaven to target bloggers and small websites through an abuse of copyright law was an attack on free speech, forcing blogs like Pam’s House Blend to pay exorbitant settlement fees or fight expensive court battles even when they don’t seem to have infringed on any copyright.
While lamentably few bloggers and website have had the resources to fight back, when they have, the courts haven’t found much legal merit in Righthaven’s business model. Indeed, in Righthaven v. Center for Intercultural Organizing the Court found the non-profit organization made a fair use, with the very nature of Righthaven's business model contributing to its loss.
They've also faced a series of serious setbacks in court, after EFF (representing Democratic Underground) helped uncover a secret "Strategic Alliance Agreement" between Stephens Media (publisher of the Review-Journal) and Righthaven, which showed that the newspaper's purported assignment of the copyrights was a sham. Simply put, Righthaven did not actually own the copyrights at issue. With the SAA uncovered, EFF won defense victories in our cases (Righthaven v. Democratic Underground and Righthaven v. DiBiase), and we continue to help defendants as amicus in other cases.
Even as Righthaven is falling apart, there is hope on the horizon for a new chapter in journalism, preserving this great engine of free expression in the digital age. The Journal Register Company, one of the nation’s leading local news and information companies, last week joined up with MediaNews Group to form Digital First Media. Together, they are embracing the challenge of journalism in an Internet-empowered information economy.
John Paton, also CEO of Digital First Media has been blogging about the company’s vision for surviving and thriving in the digital space. Last week he called for an end to paywalls and aggressive copyright enforcement: "Instead of paywalls, we see greater value creation in the open sharing of our content. Our approach is to treat content like an API – available to any who want it." And in a blog post published the prior day he stated:
News is created and consumed very differently these days. The folks we used to call the Audience have a stake in this because they have a stake in their communities. The same communities we are dedicated to serving.
We believe without quality journalism there is no democracy. No First Amendment without a vibrant Fourth Estate. This is the proposition we are dedicated to.
Collectively, we will harness the energy of nearly 11,000 employees in JRC and Media News to meet that challenge.
Because, we are not of out ideas, we are not out of energy.
We are just getting started.
His extensive strategic plan outlined how traditional print journalism has foundered in the digital age and offered tactics for using the Internet to move forward. It’s a great post—check it out here.
John Paton’s commitment to finding creative new ways to harness the Internet to inform the public shows there can be a viable future for journalism, without threatening bloggers with lawsuits or dragging small businesses into aggressive lawsuits. We hope to see other media companies follow in Digital First Media’s footsteps, accepting that the Internet has changed how users access the news and adapting to the opportunities.
The D.C. Circuit Court of Appeals ruled on Tuesday (pdf) that the government must turn over information from criminal prosecutions in which federal law enforcement agencies obtained cell-site location information without a warrant. The suit, filed as part of EFF’s FLAG Project and in conjunction with the ACLU, sought the release of the case numbers and case names in which the government had tracked the location of a person’s cell phone without obtaining a warrant.
The Court’s decision is the latest victory in the fight to stop the government from tracking citizens’ movements without a warrant. The D.C. court’s ruling follows on the heels of the Supreme Court’s decision to review United States v. Jones – a case challenging the constitutionality of law enforcement’s warrantless tracking of a suspect using a GPS device. The decision also follows the introduction of severalbills in Congress that would require law enforcement to obtain a warrant before tracking someone’s location through their cell phone. Those bills were introduced in response to calls for location privacy reform by the Digital Due Process coalition, a diverse group of civil liberties groups like EFF and the Center for Democracy and companies like Google and Microsoft, that are pressing Congress to update electronic privacy law for the 21st century. And, of course, EFF has been fighting in the courts against warrantless cell phone location tracking for years, with much success. All of these developments are part of a growing trend toward greater public scrutiny, accountability, and transparency when it comes to law enforcement’s location tracking practices – a need that the court acknowledged in Tuesday's decision.
The current FOIA lawsuit stems from a 2007 FOIA request by ACLU and EFF that sought the release of the Department of Justice’s policies and procedures for obtaining cell-site location information in criminal investigations, as well as the docket information from any case in which the DOJ had obtained location information without a warrant. In response to the FOIA request, the government disclosed that cell-site information had been used in 255 criminal prosecutions but refused to disclose any of the details relating to the cases, including the case numbers and case names.
After EFF and ACLU filed suit, the district court ordered the government to produce the list of case names and numbers in which the government had obtained location information without a warrant and had obtained a conviction. Both parties appealed the court’s decision – we wanted the entire list of cases; the government didn’t want to disclose any cases from the list.
On appeal, the D.C. Circuit upheld the district court’s decision that the government had to disclose the case records that resulted in a conviction. In holding that the disclosure of these records would be in the public interest, the court noted that the “disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool.” The court remanded to the district court to decide whether disclosure of records that did not result in a conviction was similarly in the public interest.
We're very pleased with this week's victory and hope that it's only one more step in the process of uncovering the full extent of the government's location tracking practices. We look forward to sharing the documents that are released as a result of the court's decision, and continuing our fight to strengthen the laws that protect your location privacy.
Join the Electronic Frontier Foundation (EFF) and Technology Liberation Front (TLF) for a special joint happy hour this Wednesday, September 14th in Washington DC!
EFF Senior Staff Attorney Kevin Bankston, who just argued the Jewel v NSA warrantless wiretapping case in front of the Ninth Circuit Court of Appeals, will be in DC working to advance EFF's legislative priorities like fighting the new mandatory data retention bill and pushing for an upgrade to electronic privacy law. He hopes to see as many of you as he can while he's there!
Speakeasy/Alcohol Liberation Front: Washington DC EFF & TLF Happy Hour
Wednesday, September 14th, 2011 from 5:30-8 PM
Johnny's Half Shell
400 North Capitol Street NW
Washington, DC 20001
Founded in 2005, the Technology Liberation Front is a group tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. In the spirit of our light-hearted brand, we hold Alcohol Liberation Fronts from time to time to celebrate both technologies of freedom and the freedom of technologies.
EFF's Speakeasy events are informal gatherings that give you a chance to mingle with local members and meet the people behind the world's leading digital civil liberties organization. And it is also our chance to meet the EFF members who make this work possible.
Today, Northern District of Texas District Court Judge David C. Godbey granted EFF's and Public Citizen's sanctions motion against Evan Stone, attorney for Mick Haig Productions, who improperly issued subpoenas to ISPs without court permission in order to obtain the identities of alleged file sharers. The court's blistering opinion speaks for itself, and should be read in full. The court includes a brief overview of its findings thusly:
To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed [EFF and Public Citizen] to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions.
In keeping with a growing trend, this week Federal Judge Bernard Zimmerman of the Northern District of California severed 5,010 Doe Defendants from a single case—effectively dismissing all but one defendant. EFF participated in the case as amicus.
This case, like many we’ve seen around the country, involved a pornographic work. Plaintiff sued more than 5,000 individuals anonymously based only on their ISP addresses, for allegedly exchanging an infringing file over a BitTorrent network. The copyright owner claimed that participation in BitTorrent “swarm” was a form of conspiracy, meaning it could sue everyone at once in California.
The court disagreed, vehemently, but that may not be the most notable aspect of the ruling. At least as remarkable is the court’s concern that mass copyright litigation is not really “litigation” but rather gaming of the judicial system to extract settlements. Discussing various public reports about copyright troll practices, for example, the court noted:
Article 1, section 8 of the Constitution authorizes Congress to enact copyright laws "to promote the Progress of Science and the useful Arts." If all the concerns about these mass Doe lawsuits are true, it appears that the copyright laws are being used as part of a massive collection scheme and not to promote useful arts.
The court’s analysis stressed the unfair pressure mass copyright litigation puts on defendants scattered all over the country:
Plaintiff, well aware of the difficulties out-of-state and out-of-district defendants would face if required to appear in San Francisco, has nonetheless sent them settlement demands which apparently inform them that they have been sued in this District. The defendants are left with a decision to defend themselves in San Francisco or hire an attorney to do so. This does not comport with the “principles of fundamental fairness,” . . ..
The ruling also noted the “logistical nightmare” these lawsuits create for courts, concluding:
[P]laintiff’s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to create the management and logistical problems discussed above and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass plaintiff is creating.
Unfortunately, the plaintiff in this case has had access to the defendants’ information for months, and has allegedly already settled with about 70 individuals. But even here there is some good news: the judge ordered the plaintiff to inform all defendants (except for the one that remains in the case) that they have been severed from the case by September 20, 2011. This should allow these 5,000 individuals to breathe (at least temporarily) a sigh of relief.
We hope more courts will follow Judge Zimmerman’s lead and help put a stop to these abusive lawsuits.
EFF is sending an open letter to the Korean Communications Standards Commission condemning attempts to shut the public out of their work and urging them to embrace online freedom of expression.
In South Korea, even the censors are being censored. Professor K.S. Park, who sits on South Korea’s nine-member Internet content regulatory board, has found his own blog under threat of censorship when he used it as platform to speak out for transparency and free expression.
South Korea is one of few global democracies that has enacted substantial controls on online communications. Earlier, the country’s Telecommunications Business Act (1991), which states that ‘‘a person in use of telecommunications shall not make communications with contents that harm the public peace and order or social morals and good customs”, as well as the Information and Communication Ethics Committee (ICEC), formed in 1995, set the stage for government restrictions on a wide variety of online content. Furthermore, the country’s anti-communist National Security Law (NSL), enacted in 1948, justifies the censorship of websites related to North Korea or communism. These nebulous, overbroad laws can be interpreted not only to cover content deemed obscene, but also content that is political or historical in nature.
The Korean Constitutional Court struck down the Telecommunications Business Act provision for being too vague, warning about the risk of censorship associated with the ICEC regime.
Korean Communications Standards Commission
9 members appointed by the president
3 year terms
6 members from the majority party, 3 members from the opposition party
Censors thousands of URLs weekly
However, unabashed, the South Korean government has merely replaced ICEC with another administrative body whose job it is to apply new, vague legal standards to the Internet. Made up of nine members appointed by the president, the Korean Communications Standards Commission (KCSC) was created to regulate Internet content. The KCSC describes its own role as protecting “internet users' rights and prevent circulation of illegal and detrimental information in the cyberworld”, but in reality has been used to control a broad scope of content, including gambling sites, and sites containing allegedly defamatory content. South Korea has also enacted considerable surveillance measures, as well as a restriction on online anonymity that is being challenged in the Constitutional Court.
Professor K.S. Park is a member of KCSC, one of three members suggested by the opposition party. Prof. Park is a scholar with a long history of defending online freedom of expression, and he organized the constitutional challenge against the rule abolishing online anonymity. As a member of KCSC, Prof. Park meets with the eight other members twice a week to review URLs that have been flagged by the community. Prof. Park has long argued that the KCSC has too much authority to prevent people from accessing expressive content on the web. As a member of the censorship board, he works to steer KCSC into a more lenient interpretation of the censorship laws. Often, he is unsuccessful, and content that he has determined non-harmful to the public is banned.
In July, Prof. Park decided to begin exploring the nuances of these censorship choices in his blog. Believing that a censorship regime is terrible but a secret censorship regime is even worse, he used his blog to educate people about the types of content that were being removed from the Internet in South Korea. He would publish a sample of the type of content that had been removed and include a legal discussion of the removal choice. For example, Prof. Park posted non-sexual pictures of human male anatomy, such as those found in sex education books, along with the argument that such images are not obscene and that even by the conservative Korean standards it's enough to just place age-restrictions on access. Six of his fellow commissioners rejected the argument.
As a result, in August, Prof. Park found his own blog on the roster of sites to be considered by the KCSC board. He inveighed the board for attempting to choke off his free expression. Ultimately, his own blog became the subject of debate amongst the other board members. In an act of compromise, Prof. Park has modified his previous blog entries to remove the "offensive" content and removed the blog from the board’s deliberation, but other members of the board have officially vowed to take actions against his blog in the future.
If Prof. Park’s blog is removed from the Internet, it will be a double blow for the people of South Korea. Not only will another valuable website be banned, but the people of South Korea will lose their only practical method of overseeing the work of the KCSC and holding the board accountable for its online censorship choices. While it is true that the board meetings are open to public viewing, the sheer volume of censorship (i.e. close to 10,000 URLs a month) makes it unwieldy for public oversight. Furthermore, the authors of the censored URLs are not given an opportunity to defend themselves in the censorship deliberations. For the most part, the public isn't participating in the censorship choices made by KCSC because access to the process is so cumbersome, resulting in a regulatory board with no meaningful public oversight.
The UN Human Rights Council’s Special Rapporteur on Freedom of Expression, Frank La Rue, has stated [PDF] that "censorship measures should never be delegated to a private entity" and that "no State should use or force intermediaries to undertake censorship on its behalf,” noting the KCSC as a "quasi-State and quasi private entity" tasked with just that. Indeed, the KCSC lacks transparency and accountability, relying solely on a board of nine individuals to determine what online content is appropriate for Korean viewers. And as Prof. Park’s story illustrates, dissent is not tolerated.
The EFF is deeply troubled by the rise of administrative boards to censor the Internet—now extant in Turkey, Australia, India and South Korea. We are sending an open letter to the Korean Communications Standards Commission condemning attempts to shut the public out of their work and urging them to embrace transparency and online freedom of expression. Click here to read the letter. It is our hope that international pressure, combined with the public outcry in South Korea, can help expose the flaws of this administrative censorship regime and restore real freedom of expression to the South Korean Internet.
Current Electronic Frontier Foundation (EFF) members and donors are invited to join Director for International Freedom of Expression Jillian York and Senior Activist Richard Esguerra at a secret location in New York City for drinks on Sunday, September 11th. Both Jillian and Richard will be speaking at the Open Video Conference that weekend at New York Law School. Find out about our latest work in intellectual property, online activism in the U.S. and abroad, and EFF's continuing fight to defend your privacy.
EFF's Speakeasy events are free, informal gatherings that give you a chance to mingle with local members and meet the people behind the world's leading digital civil liberties organization. It is also our chance to thank you, the EFF members who make this work possible.
SPEAKEASY: New York City EFF Members-Only Happy Hour
Sunday, September 11, 2011 from 6-8 PM
New York-area members will receive a personal invitation with location details by email on Tuesday, September 6th. Your guests are welcome, but space is limited. Attendees must be 21 or older. No-host bar. For more information, contact email@example.com.
Not a member, or let your membership lapse this year? There's still time to sign up today at https://www.eff.org/join!
After many years and many failed attempts, patent reform legislation is about to pass Congress and become law. (President Obama has signaled he will sign the current bill, which should make it out of Congress this week.) The good news: Washington, D.C. recognizes that the patent system is in dire need of reform. The bad news: the new law will do virtually nothing to fix many of the system’s fundamental problems.
To be certain, there are some big changes in the patent reform legislation. For example, the United States would begin the shift to a “first-to-file” system, where a patent is granted to the party who files her application first at the Patent Office. (Currently, we follow a “first-to-invent” regime, where a party who first invents and practices an invention gets rights to the patent.) There are also changes to the PTO’s funding and fee-setting authority. These latter changes are imperfect, since they continue to give Congress some ability to divert the PTO’s fees to other areas of the U.S. budget, which prevents the PTO from fully funding much-needed initiatives to improve patent quality.
The legislation also adds new procedures that allow parties to challenge patents. This sounds promising: more opportunities to challenge bad patents. In reality, though, these procedures offer few practical chances for ordinary people who don’t constantly monitor the Patent Office. Take, for example, two of the new ways third parties can get involved: pre-issuance submissions and post-grant reviews. Pre-issuance submissions will allow third parties to provide the PTO with potentially invalidating prior art, but only while a patent application is pending. And the post-grant review process will allow a third party to present legal challenges to a patent, but only in the first nine months after the patent issues. Of course, if a patent applicant or owner is careful not to publicize the patent until after the nine-month period expires, or if a third party simply doesn’t learn of the patent until later, these types of challenges will be virtually useless.
What is much worse, the legislation wholly fails to address many of the biggest problems plaguing the patent system, especially the problem of patent trolls. This is especially troubling now, as trolls are targeting small app developers, driving some of those developers out of the U.S. market entirely. The reform act also does nothing to limit patent damages by aligning them with any actual value of a patented invention. We hope legislators won’t treat the passage of patent reform legislation in 2011 as an excuse to ignore the growing troll problem, which stymies innovation, hurting individual inventors, small businesses, and our economy at large. Ironically enough, many in D.C. claim the new law will create jobs; we don’t see how, unless they mean more jobs for lawyers.
We’ll continue to urge D.C. and the courts to limit the trolls’ ability to prey on those innovating and helping to grow technology. In the meantime, if you are an app developer or other small innovator worried about Lodsys (or other patent trolls), please join us on September 9 for “Patent Trolls and You: EFF Virtual Boot Camp for App Developers.” We’ll be streaming an educational panel live and taking questions via Twitter and email. If you’d like to join us, please email firstname.lastname@example.org and include your name, email address, professional affiliation, and let us know if you’ve already heard from Lodsys.