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EFFector - Volume 20, Issue 13 - Free Speech Battle Over Online Parody of 'Colbert Report

EFFector Vol. 20, No. 13  March 29, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 419th Issue of EFFector:
  • Free Speech Battle Over Online Parody of 'Colbert Report'
  • EFF Presents Pioneer Awards at ETech
  • EU Criminal Sanctions Directive Moves Forward
  • Key Internet Censorship Law Struck Down Again
  • Best-Selling Author Critiques Intellectual Property
  • Wall Street Journal Tech Writer Pushes for Copyright Reform
  • U.S. Government Access to EU Data Raises Privacy Concerns
  • miniLinks (5): Cyberlaw Professor Takes on NFL
  • Administrivia

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 http://www.eff.org/

Make a donation and become an EFF member today!
 http://eff.org/support/

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effector: n, Computer Sci. A device for producing a desired 
change.

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* Free Speech Battle Over Online Parody of 'Colbert Report'

MoveOn, Brave New Films Sue Viacom For Illegal Takedown of 
YouTube Video

San Francisco - The Electronic Frontier Foundation (EFF) 
asked a federal court last week to protect the free speech 
rights of MoveOn.org Civic Action and Brave New Films after 
their satirical send-up of "The Colbert Report" was removed 
from YouTube following a baseless copyright complaint from 
media giant Viacom.

The video, called "Stop the Falsiness," was created by 
MoveOn and Brave New Films as a tongue-in-cheek commentary 
on Colbert's portrayal of the right-wing media and 
parodying MoveOn's own reputation for earnest political 
activism. The short film, uploaded to YouTube in August 
2006, includes clips from "The Colbert Report" as well as 
humorous original interviews about show host Stephen 
Colbert. In March of this year, Viacom -- the parent 
company of Comedy Central -- demanded that YouTube take 
"Stop the Falsiness" down, claiming the video infringed its 
copyrights.

"Our clients' video is an act of free speech and a fair use 
of 'Colbert Report' clips," said EFF Staff Attorney Corynne 
McSherry. "Viacom knows this -- it's the same kind of fair 
use that 'The Colbert Report' and 'The Daily Show' rely 
upon every night as they parody other channels' news 
coverage."

Under the Digital Millennium Copyright Act (DMCA), a mere 
allegation of copyright infringement on the Internet can 
result in content removal, silencing a creator before any 
misuse is proven. This "shoot first, ask questions later" 
system can silence online artists and critics, creating 
unfair hurdles to free speech.

"Online sites like YouTube have revolutionized political 
expression and can give the little guy an audience of 
millions for a political point of view. An entertainment 
powerhouse like Viacom must not be allowed to muzzle 
independent video creators and their free speech," said Eli 
Pariser, Executive Director of MoveOn.org Civic Action. 
"Copyright owners need to double-check their claims and 
think about free speech rights before erasing political 
content from sites like YouTube and misusing the DMCA."

The lawsuit asks for a declaratory judgment that "Stop the 
Falsiness" does not infringe any Viacom copyright, as well 
as damages and injunctive relief restraining Viacom from 
bringing any more copyright claims in connection with the 
video. EFF is working with Stanford's Center for Internet 
and Society in this case.

For more on the lawsuit:
http://www.eff.org/legal/cases/moveon_v_viacom

To watch "Stop the Falsiness":
http://falsiness.org/

For an update on the case:
http://www.eff.org/deeplinks/archives/005177.php

For this release:
http://www.eff.org/news/archives/2007_03.php#005176

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* EFF Presents Pioneer Awards at ETech

On Tuesday night, three Internet superheroes received 
awards for defending freedom on the electronic frontier, 
and one even got a red cape. 

EFF presented the 16th annual Pioneer Awards to Bruce 
Schneier, Yochai Benkler, and Cory Doctorow. The event was 
kicked off by a rousing debate between our own Fred von 
Lohmann and HDNet Chairman Mark Cuban on YouTube and the 
future of copyright. Thanks to our award winners, to Mark, 
to our gracious hosts at O'Reilly's Emerging Technology 
Conference (ETech), and to everyone who came out to the 
event!

For more on the awards:
http://www.eff.org/awards/pioneer/

Missed out on the fun? Then check out Wired's and Ars 
Technica's recaps:
http://blog.wired.com/business/2007/03/mark_cuban_and_.html 
http://www.flickr.com/photos/laughingsquid/sets/72157600032140736/ 
http://www.flickr.com/photos/quinn/sets/72157600032110344/

Audio from Cory's acceptance speech:
http://uscpublicdiplomacy.com/index.php/events/events_detail/2222/

Kevin Marks has also posted video from EFF's Birds-of-
a-Feather session:
http://epeus.blogspot.com/2007/03/eff-bof-talk-at-etech.html

For more about ETech: 
http://conferences.oreillynet.com/etech/

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* EU Criminal Sanctions Directive Moves Forward

When it was sold to politicians in Brussels, the pitch for 
the directive on criminal measures aimed at enforcing IP 
rights in Europe (IPRED2) was all about commercial piracy 
and counterfeit goods that endanger health and safety.

The reality has turned out quite different. The current 
draft directive -- adopted last week by a key European 
Parliament committee -- will criminalize a wide range of 
activity that is currently lawful and has no connection to 
public health or safety. This is happening despite warnings 
by digital rights and consumer groups and tech industry 
bodies that the existing language was overbroad.

Our summary of the continuing problems:
http://www.eff.org/deeplinks/archives/005174.php

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* Key Internet Censorship Law Struck Down Again

The ACLU, EFF, and a coalition of plaintiffs achieved a 
victory for online free speech when U.S. District Court 
Judge Lowell Reed ruled that a key Web censorship law 
violated the First Amendment and issued an order 
permanently blocking its enforcement.

Passed in 1998, the Child Online Protection Act (COPA) 
sought to restrict minors' online access to "harmful to 
minors" material -- that is, material that's sexual and 
inappropriate for those under the age of 17. Congress 
enacted COPA after the U.S. Supreme Court found its 
predecessor, the Communications Decency Act (CDA), 
unconstitutional.

COPA was intended to be less sweeping than the CDA by 
censoring only "commercial" communications on the Web, thus 
ignoring email and all other forms of Internet speech, and 
by providing liability "safe harbors" for websites that 
restrict access by minors.

But these limits didn't save COPA for many, many reasons. 
For instance, Judge Reed found that COPA by its terms 
includes free websites that make money via advertising or 
through book sales of goods -- thus affecting EFF member-
plaintiff Bill Boushka, who writes about and advertises his 
book about gays in the military on his website.

COPA has two fundamental flaws. First, it's aimed at 
material that's completely legal for adults -- but as the 
judge found, there's no reasonable or feasible way to only 
restrict online access by minors without harming adult 
access. Second, it's less effective and more harmful to 
speech than parents' voluntarily managing their children's 
online access. That doesn't make "censorware" praiseworthy, 
but it does render COPA constitutionally infirm.

For this post and related links:
http://www.eff.org/deeplinks/archives/005178.php

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* Best-Selling Author Critiques Intellectual Property

If you're an independent filmmaker or dramatist, you may 
not have many chances to adapt the works of popular fiction 
writers. Intellectual property law doesn't make it easy, 
and the licensing fees alone can make approaching big name 
authors prohibitively expensive.

Jonathan Lethem, however, is one author who is eager to see 
his work adapted by others. The bestselling author of 
"Fortress of Solitude and Motherless Brooklyn" has started 
a project called "Promiscuous Materials," in which he has 
made several of his short stories available for adaptation 
into short films or one act plays by anyone who can afford 
the reasonable price of a dollar.

In an NPR interview, Lethem explained his reasoning:

"What I'm doing is sort of saying, look, we give things 
away sometimes. That's part of our work, and... as it 
happens, I'd like to do more of it.... The reason this 
seemed so important to me is that... people talk about 
intellectual property as if it were an absolute concept 
with very easily defined terms, and I want to suggest that 
actually there's an enormous grey area. There's a really 
big spectrum between charging for something and giving it 
away...."

Lethem takes his inspiration from the open source software 
movement and Creative Commons (though the license he is 
using is not a CC license). In a recent issue of Harper's, 
Lethem argued that contemporary ideas of intellectual 
property stifle creativity and prevent artists from 
building on the achievements of others. To drive the point 
home, he constructed the entire article from quotations by 
other authors.

Not all of Lethem's work is available on these terms, and 
there are some simple conditions that artists must agree to 
before using his material. 

For Lethem's website:
http://www.jonathanlethem.com/

For this post and related links: 
http://www.eff.org/deeplinks/archives/005172.php

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* Wall Street Journal Tech Writer Pushes for Copyright 
Reform

We don't always agree with the Wall Street Journal's Walt 
Mossberg, but his latest missive hits the nail right on the 
head:

"What we need is a new law from Congress, a law written 
from the perspective of the consumer and the [I]nternet, 
rather than strictly from the perspective of the copyright 
holders. The copyright holders deserve protection for their 
intellectual property, but we deserve some clear rules that 
would allow us to make more use of the digital content that 
we legally purchase than we have now."

In his latest video report (embedded at the link below), 
Mossberg makes a variety of good points about fair use and 
the dangers of the Digital Millennium Copyright Act (DMCA):
http://www.eff.org/deeplinks/archives/005179.php

You can also read a print version here: 
http://ptech.wsj.com/archive/ptech-20070322.html

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* U.S. Government Access to EU Data Raises Privacy Concerns

Passenger Name Records (PNR) can contain intimate personal 
information and enable the construction of detailed 
histories of your movements. They're generated every time 
you make an airline reservation, even if you don't take the 
flight.

Last week, EFF's European Affairs Coordinator Erik 
Josefsson attended a European Parliament public seminar on 
the use of this data and how it can be shared with U.S. 
authorities. Read on for his report, co-authored by Edward 
Hasbrouck of the Identity Project and previously published 
in the EDRI-Gram:
http://www.edri.org/edrigram/number5.6/transatlantic-data-protected 

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* miniLinks
The week's noteworthy news, compressed.

~ Cyberlaw Professor Takes on NFL
Former EFF Staff Attorney Wendy Seltzer pushes back against 
NFL's abuse of DMCA takedowns.
http://blogs.wsj.com/law/2007/03/21/law-professor-wendy-seltzer-takes-on-the-nfl>

~ Fixing Copyright's Corporate Death Penalty
We explain how copyright's statutory damages threaten 
innovators of all stripes -- and how the FAIR USE Act could 
fix that.
http://www.tompaine.com/articles/2007/03/27/copyright_and_innovation_can_coexist.php

~ Calling All Artists: UK Inquiry on Copyright Exceptions
Get in touch with the Open Rights Group to defend creative 
fair uses.
http://www.openrightsgroup.org/2007/03/20/patent-office-want-evidence-to-justify-new-copyright-exceptions-for-artists/
 
~ What Do ISPs Know About You?
Wired probes Internet intermediaries on their data 
retention and sharing policies.
http://blog.wired.com/27bstroke6/2007/03/isp_data_retent.html/

~ Introducing Clown Co.
Google's inside term for the Universal/NBC YouTube clone, 
which they bill excitedly as "the largest advertising 
platform on earth."
http://www.techcrunch.com/2007/03/23/what-we-know-so-far-about-newtube-isnt-good/

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
  http://www.eff.org/	

Editor:
Derek Slater, Activism Coordinator
 derek@eff.org	

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