Sherman Frederick is the former CEO of Stephens Media, former publisher of the Las Vegas Review Journal, and one of Righthaven’s biggest cheerleaders. When the litigation campaign of Stephens Media's copyright enforcer Righthaven first got underway, Frederick famously wrote “So, I'm asking you nicely once againdon't steal our content. Or, I promise you, you will meet my little friend called Righthaven.”
In the wake of last week’s ruling against Righthaven in Righthaven v. Democratic Underground, Frederick wrote an unintentionally ironic column for Stephens Media entitled “Content protection -- Night of the unthinking commentator.” Frederick starts out with an ad hominem attack, comparing bloggers commenting in favor of the Nevada federal court’s ruling to “a bunch of kids camping out in the backyard, sticking a flashlight under their chin and telling each other scary stories.”
Following his strained and somewhat nonsensical metaphor, Frederick suggests that readers should instead look at three posts by GametimeIP blogger Patrick Anderson. Frederick links to the three posts, and then copies, verbatim, from each. Five sentences from the first article, three from the second, and ten sentences from the third. The quotes are not denoted as such, but basically everything after "Article 1, which in part points out:" is copied.
Which is, to say the least, quite ironic. Righthaven v. Democratic Underground is a case about copying five sentences from a Review-Journal news article. To bolster his claim that commenters are writing without thinking about the real IP issues, Frederick does exactly what his company has contended was infringement. Without, apparently, thinking about it.
The irony does not end there. Frederick claims that the bloggers writing about the decision “mischaracterize reality when it comes to newspaper attempts to control its own content.” As you may recall, in the Democratic Underground case, Righthaven argued it could sue because it was the true owner. Judge Hunt ruled that Stephens Media (the publisher of the Review-Journal newspaper) was actually the owner of the news article. Thus, when Frederick refers to “newspaper attempts to control its own content,” he is unintentionally agreeing with the judge by admitting that the content is the newspaper’sas opposed to Righthaven’s.
As for the substance of the linked blog posts, blogger Anderson (who once worked at the same law firm as Righthaven CEO Steve Gibson) disagrees with the court and most commenters. While Anderson's analysis is not particularly persuasive, it is not surprising that Frederick was delighted that a blogger with a law degree agreed with him. It is perfectly appropriate for Frederick to links to and quote from the GametimeIP blog to add to the conversation. If only Frederick had realized this was acceptable behavior before he introduced the Democratic Underground to his little friend.
If you don't agree that these excerpts are fair use, however, you'd be interested to know that Anderson decided to put the copyright rights for each of the three articles up for sale. Unlike Stephens Media's deal with Righthaven, GametimeIP is offering a total assignment, including the right to sue for past infringement.
Over the past two weeks, EFF has won the dismissal of two bogus infringement lawsuits filed by notorious "copyright troll" Righthaven LLC. In the first case, a federal judge ruled that Righthaven had no standing to sue an online political forum for a five-sentence excerpt of a news story posted by a user, because EFF sleuthing revealed that Righthaven did not own the copyright. Last week, the court relied on the evidence presented in the first case and dismissed Righthaven's lawsuit against a non-commercial blog that provides prosecutor resources for difficult to prosecute "no body" homicide cases.
These victories are sweet, but Righthaven and copyright trolls like them have filed thousands of additional lawsuits across the country, using the threat of massive damages available under copyright law to pressure defendants into quick settlements. One copyright troll is attempting to subpoena the identities of thousands of BitTorrent users and sue them collectively to minimize their own court costs, while another is targeting alleged adult film downloaders with hopes of exploiting the additional threat of embarrassment associated with porn. We need your financial support to bring an end to this awful business model.
EFF's hard work has provided the facts and precedents needed to dismiss even more lawsuits. Please support EFF today, and help us topple a troll!
UPDATE: These comments relate to the DRAFT Communique distributed to all the participants at the High Level Meeting. The final Communique is scheduled to be released on 29 June at 13:00 pm
EFF has joined with a coalition of more than 80 global civil society groups which have declined to endorse a set of Internet Policy Principles presented today in Paris by the Organization for Economic Co-operation and Development (OECD). EFF and the other members of the OECD’s Civil Society Information Society Advisory Council (CSISAC) were unwilling to accept the high profile OECD Communiqué on Internet Policy-making because it could encourage states to use Internet intermediaries to police online content, undermining freedom of expression, privacy and innovation across the world.
EFF and CSISAC urge OECD member countries to adopt policies that protect the open Internet and affirm existing limits on the liability of Internet intermediaries. We oppose legal and policy frameworks that encourage Internet intermediaries to filter and block online content or disconnect Internet users under a “graduated response” system after alleged copyright violations. Civil society calls on OECD member states to defend free expression and support due process and procedural safeguards in the protection of intellectual property rights.
Following is the press release issued by CSISAC today, and a more detailed explanation of CSISAC members’ concerns with the text of the Communique is available here.
Civil Society Coalition Declines to Endorse OECD DRAFT Communiqué on Principles for Internet Policy-Making; Urges OECD to Reject “Voluntary” Steps For Filtering and Blocking of Online Content
Paris – The Civil Society Information Society Advisory Council to the Organization for Economic Co-operation and Development (CSISAC) today declined to endorse an OECD DRAFT Communiqué on Internet Policy-making principles. CSISAC believes that the Communiqué, which was presented today at the OECD’s High Level Meeting on the Internet Economy in Paris, could undermine online freedom of expression, freedom of information, the right to privacy, and innovation across the world.
The OECD DRAFT Communiqué covers a broad range of current Internet policy issues, CSISAC supports many of the proposed principles, in particular, policies that support the open, interoperable Internet, and multi-stakeholder policy development processes.
CSISAC strongly supports OECD multistakeholder policy development processes and sees much value in working at the OECD. While CSISAC appreciates the efforts made by the OECD Secretariat and various OECD member states to accommodate CSISAC’s concerns with the draft Communiqué, CSISAC was not able to accept the final draft’s over-emphasis on intellectual property enforcement at the expense of fundamental freedoms, and its movement away from the longstanding principle in many OECD countries’ laws of granting “mere conduit” online service providers limitations on liability for the actions of their users.
The DRAFT Communiqué advises OECD countries to adopt policy and legal frameworks that make Internet intermediaries responsible for taking lawful steps to deter copyright infringement. This approach could create incentives for Internet intermediaries to delete or block contested content, and lead to network filtering, which would harm online expression. In addition, as has already happened in at least one country, Internet intermediaries could voluntarily adopt “graduated response” policies under which Internet users’ access could be terminated based solely on repeated allegations of infringement. CSISAC believes that these measures contradict international and European human rights law.
CSISAC is also concerned about limits on access guarantees to “lawful” content and references to lawful behaviour throughout the Communiqué. This language ostensibly would require Internet intermediaries or other private parties and interests to make determinations about the legality of content and of user behavior on their platforms and networks. Internet intermediaries are neither competent nor appropriate parties to make such rulings., CSISAC believes Internet intermediaries should not be responsible for identifying infringement and enforcing intellectual property rights, and requiring them to do so compromises transparency, accountability and due process. All restrictions must be based on court orders obtained after due process and judicial review.
CSISAC notes that the direction of some of the text in the Communiqué is inconsistent with the approach taken by other intergovernmental organizations including the United Nations and the Council of Europe, and could result in divergent regulatory approaches across countries, undermining the stated goal of the Communiqué to provide assistance to policymakers in OECD member states. In his 2011 Report to the UN Human Rights Council, the UN Special Rapporteur on Freedom of Opinion and Expression has specifically criticized national laws that impose liability on Internet intermediaries if they do not agree to adopt filtering and blocking measures. Furthermore, the Rapporteur has stated that cutting off users from Internet access, regardless of the justification provided, including alleged violations of intellectual property rights, is disproportionate and thus a violation of the International Covenant on Civil and Political Rights. The Council of Europe has previously published in 2008 Recommendations to member states and Guidelines to Internet intermediaries on measures to promote the respect for freedom of expression and information with regard to Internet filters and in 2007 Recommendations on measures to promote the public service value of the Internet. It is in the process of publishing a Declaration on Internet Governance Principles.
CSISAC supports the strong emphasis on the need for multi-stakeholder process regarding the development of Internet policy. CSISAC recognizes that several international bodies and organizations are currently discussing whether and how to regulate the Internet at the global level. Unlike such intergovernmental meetings such as the recent eG8 and G8 events, in which civil society was not invited to participate, the OECD has demonstrated commitment to developing Internet policies in a genuine multi-stakeholder process.
CSISAC calls on OECD member states to take a stand to combat digital censorship and uphold international human rights standards, including the fundamental rights to freedom of expression, to freedom of information, to privacy and to the protection of personal data, which are the cornerstones of democracy. Any Internet policy guidelines developed by the OECD should be grounded in legal principles that are widely accepted, and be compliant with international human rights standards. It is inappropriate for such guidelines to be derived from ad hoc regulations and policy experiments that have been adopted in a small number of countries, especially since the impact of these regulations is still far from clear. We invite member states of the OECD to protect the open Internet and make a public commitment to opposing Internet filtering and blocking by intermediaries, to affirm existing limitations on intermediaries’ liability, and to support due process and judicial review of allegedly illegal content and behavior.
A more detailed explanation of CSISAC members’ concerns with the text of the Draft Communique is available here.
The Organization for Economic Co-operation and Development is an intergovernmental body that produces economic and policy analysis and promotes policies that will improve the economic and social well-being of people around the world. The OECD provides a forum in which its 34 member governments can work together to share experiences and seek solutions to common problems. Its reports and recommendations are highly influential and have formed the basis for national laws and policies in its member states. More information is available here.
CSISAC is a coalition of more than 80 civil society groups and several concerned individuals from across the globe that, since 2009, has provided input into the development of OECD policies relating to the Internet, and formally represents the civil society perspective at certain OECD meetings.
At the beginning of June, EFF issued its Tor Challenge, calling on individuals and organizations to set up Tor relays to strengthen the Tor network and help Internet activists all over the world. Then we added the Poster Challenge, offering a Molly Crabapple poster to anyone who set up five or more relays. Today we’re unveiling the final achievement in our Tor Challenge: the Tor Video Challenge.
Tor is a service that helps you to protect your anonymity while using the Internet. Internet activists depend on Tor to maintain their anonymity online and access websites that have been blocked by their governments. The Tor network depends on volunteers to operate relays, but setting up a relay for the first time can be a tricky and confusing process for some. That’s why EFF has launched the Tor Video Challenge.
We’re asking for participants to create instructional videos that explain how to set up Tor relays on different operating systems – and compete to win awesome prizes and props from EFF. We’ve already made the first video, showing people how to set up a Tor relay on a Mac. Now we want other videos to explain how to set up Tor on different operating systems. Be creative! Videos can be funny, cute, scary, serious – but they must show users the steps they need to take in order to run a Tor relay in one of the six operating system categories. Please see the Official Rules for minimum standards and other requirements.
The videos which are created will be useful to Internet users for months or even years to come. By taking part, you’ll be helping others help Tor – creating a ripple effect for defending online privacy and anonymity.
A panel of experts will be judging each video on accuracy and clarity, creativity and entertainment value, and how well it promotes EFF values, especially anonymity and freedom of expression. This contest is open to all US residents over the age of 18. Videos must be submitted by July 5th, 2011. We will be judging videos in the following categories: (1) Windows 7, (2) Windows XP, (3) Debian-based Linux, (4) Red Hat-based Linux, (5) Other Unix-based Operating Systems, and (6) Setting up Virtual Machines. Videos should be less than six minutes in length and must be licensed using the Creative Commons Attribution 3.0 license. Check out the detailed rules.
To enter you must upload1 an original video that you have personally created to a hosting site of your choice and send the link to firstname.lastname@example.org. This email must include a first and last name with your email address, and physical addresses where we can send your prize if you are the winner.2
Winners will be announced by July 12th. Winners will receive a gorgeous poster about Tor by New York artist Molly Crabapple, signed by the EFF staff. Winning videos may be showcased on our Setting Up Tor page .
Got questions? Email email@example.com.
1. We suggest using a video sharing site such as YouTube, Vimeo, or blip.tv that allows you to attach a Creative Commons Attribution license to your Video. You may need to register with that site. Once you have created your Video, upload it to the hosting site of your choice and take the steps necessary to make it public and licensed as Creative Commons Attribution.
In a move that could have a profound impact on Fourth Amendment law, the Supreme Court has agreed to consider a question that has split the nation's appeals courts: can the police install and use a GPS tracking device to follow a person's movements around the clock every day for a month—without a search warrant?
The Supreme Court granted certiorari (pdf) today in United States v. Jones (once known as United States v. Maynard). In this case, FBI agents planted a GPS device on Antoine Jones' car while it was on private property and tracked the location of the vehicle for a full month without a warrant. Jones challenged the surveillance tactic, arguing that it violated his Fourth Amendment right against unreasonable search and seizure.
The United States Court of Appeals for the District of Columbia Circuit ruled last summer that the government's prolonged use of the device to track Jones' car required a search warrant based on probable cause, noting, "When it comes to privacy . . . the whole may be more revealing than the parts." The court went on to explain:
It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.
EFF and the ACLU of the National Capital Area partnered on an amicus brief (pdf) in the D.C. Circuit, arguing that warrantless GPS surveillance would open the door for police to abuse their authority and continuously track anyone's physical location for any reason—without ever having to show a judge that such monitoring is justified.
Other appeals courts have grappled with the question of warrantless GPS tracking, deciding under othercircumstances that such surveillance is constitutional.
In Jones, the Supreme Court will review two specific questions:
Whether the warrantless use of a tracking device on Jones' vehicle to monitor its movements on public streets violated the Fourth Amendment, and
Whether the government violated Jones' Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
EFF will continue to be involved as the Supreme Court weighs this important case. Stay tuned...
A federal appellate court this week issued a fascinating decision on whether the much-maligned “hot news doctrine” – which confers a quasi-property right in facts -- will survive in the digital age. The answer? Yes, but barely, and not as an easy way to defend an outdated business model.
The defendant in the case, TheFlyOnTheWall.com, runs a financial news service that gathered and reported on stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley, and Lehman Brothers (the"Firms") and reported them on its website. The Firms claimed that the information was "hot news" and that Fly was free-riding on the firms' work in creating the recommendations. A federal court agreed, and ordered Fly to delay reporting of the information for two hours after the reports are released.
The Second Circuit Court of Appeals reversed that holding. After a lengthy disquisition on the history of the doctrine (including a detailed analysis of its own landmark decision in NBA v. Motorola, most of which it treated as dicta, or nonbinding), the court found that the tort survives only in the narrow circumstance (the opinion uses the term “narrow” repeatedly) where a party is truly “free-riding.” Otherwise it is preempted by the Copyright Act, which forbids ownership claims in facts, or news of the day.
Free-riding, the court stressed, is not a matter of “fairness” or morality. The Firms had complained vociferously that Fly’s rapid reporting on their recommendations – made possible in part by new technologies – was impairing their traditional business model, which, they said, depends upon controlling the dissemination of their research reports. Said the court:
The adoption of a new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort.
Fly, the court decided, was not free-riding because it was reporting on the fact of the Firms’ recommendations -- not attempting to pass those recommendations off as its own.
The Firms are making news; Fly, despite the Firms’ understandable desire to protect their business model, is breaking it.
Several amici, including EFF (joined by Citizen Media Law Project and Public Citizen), Google, and Twitter, had urged the court to consider the doctrine in light of the First Amendment. The court largely declined. Too bad – it still seems strange to us that this vestigial doctrine that clearly impacts speech about news of the day has never received First Amendment scrutiny. That scrutiny seems especially necessary now, when the Internet is increasingly allowing Americans to publicly gather, share, and comment on the news of the day. Misuse of the "hot news" doctrine could stifle this extraordinary growth of free expression.
This is a pretty good outcome nonetheless: the high bar that the court sets for applying this dangerous doctrine will help ensure it is rarely used.
Efforts to harness law enforcement resources in the service of copyright enforcement continueapace. Last Thursday, the so-called "illegal streaming” bill passed the Senate Judiciary Committee (although that's still some way away from becoming law). The bill would increase criminal copyright penalties to allow jail time of up to five years for infringing a copyright by “publicly performing” the copyrighted work, such as playing a sporting event broadcast or motion picture. (Currently, the maximum criminal penalty for unlawful public performance is a fine and/or prison sentence of up to one year.) Fortunately, there are limitations on when the new criminal penalties would apply. For example, only 10 or more unlawful public performances within a 180-day period would trigger the provisions. In addition, the current criminal statute contains basic thresholds such as a requirement that the infringement be willful.
The basis for the bill appears to derive from a list of legislative requests issued earlier this year by the Obama Administration’s IP Enforcement Coordinator, including a recommendation to establish that online streaming of infringing content can be punished as a felony. The push to increase penalties from misdemeanor (which they are now) to felony (which they would be under the bill) apparently is being driven in part by abelief that law enforcement will be more motivated to prosecute crimes that have more severe penalties, no matter that the criminal laws are supposed to be designed to deter and punish bad guys, not instigate good guys. We have to question the judiciousness of devoting spare government resources to prosecuting this kind of activity. It seems to us that illegal public performance is the kind of economic concern that can be effectively managed through existing civil remedies. Moreover, criminal copyright prosecutions need to show all the elements of civil copyright infringement, something civil courts are traditionally much better versed in.
In general, a “public performance” of a work under the Copyright Act occurs when a work is performed before a substantial gathering of people (for example, a concert) or when the work is transmitted in a way that it can be accessed by members of the public, even if individuals receive the performance in different places or at different times (for example, a TV broadcast).
As an initial matter, it’s hard to narrow the kinds of activities such a bill could potentially encompass. Practically speaking we wouldn’t expect to see most of these pursued or prevailing; however, uncertainty and the fear of prosecution and defense expenses could well discourage innovation in online services and lawful speech.
For example, while the legislation conceivably could capture hosting platforms like YouTube and caching services like Akamai, the lack of volitional conduct on the services’ part likely exonerates them. Presumably, too, one who merely embeds or links to a video would not be deemed to be making a public performance. Although at least one court has found copyright infringement where a website streamed content inline from another website, we believe that case was wrongly decided. On the other hand, ongoing law enforcement efforts to invoke provisions of the criminal law to seize domain names of websites that link to streaming content suggest that linking may yet be a target.
Online video distributors and providers of subscription TV services who rely on statutory licenses may have more pronounced concerns given that a violation of those licenses might appear to risk triggering the felony provisions. Likewise, copyright holders may use the threat of prosecution as leverage against broadcasters who transmit content pursuant to a license under dispute.
As for the individual who believes she is making a fair use of copyrighted work, she’ll want to be pretty confident or hope she can argue other thresholds in the bill are not met. It doesn’t seem likely this is the kind of activity prosecutors will pursue; then again, who wants to take a chance on five years’ jail time?
Today EFF filed a "friend of the court" brief (pdf) urging the Ninth Circuit Court of Appeals to reconsider its troubling decision (pdf) that employees face jail time when they access work computers for purposes that violate company policy.
In United States v. Nosal, the former employee of an executive recruiting firm convinced current employees to access the company's proprietary database and pass along information that he could use for competitive advantage. The company's computer-use policy, however, said that employees were only allowed to access the database to further the company's business interests. The government prosecuted the former employee under the federal Computer Fraud and Abuse Act (CFAA), arguing that his accomplices had authority to access the database for some purposes, but exceeded that authority when they accessed it for a purpose that violated corporate policy. Unfortunately, the Ninth Circuit agreed.
This is a dangerous precedent because it gives employers the power to make behavior illegal just by saying in a written policy that it's not allowed. For example, a worker could be sued or prosecuted for reading personal email or checking the score of a baseball game if her employer's policy says that company computers may be used only for work.
That might sound far-fetched, but it's not. Earlier this year, a company sued (pdf) a former employee under the CFAA for making too much personal use of the Internet at work in violation of company policy—apparently in retaliation for a wrongful termination lawsuit that she filed first. The court dismissed (pdf) the company's claim, but Nosal gives a solid foothold to those who would make similar arguments in the future.
We hope the Ninth Circuit will reconsider its approach in this case. The CFAA is broad enough already—it shouldn't be interpreted to criminalize the everyday behavior of millions of employees and (potentially) Internet users.