Former Federal Judge Calls US Prosecution Of Megaupload 'Really Outrageous'

from the good-for-him dept

To hear folks in Hollywood talk about it, the US's indictment and prosecution of Megaupload are a done deal. Without any actual trial, people have decided that the company is clearly 100% evil and guilty. Yet, as we keep noting, the details of the indictment and prosecution keep turning up significant errors on the part of the US, as well as questions about the legality of what the US did. And plenty of people who really understand this stuff deeply are speaking out in agreement. The latest is a former federal judge, Abraham David Sofaer, who found the whole situation so troubling that he's helping the EFF -- for free -- with its efforts to get Megaupload users' data back.

Having looked over the details of the case, he's speaking out against it. According to an interview he did with David Kravets at Wired:

“It’s really quite outrageous, frankly... I was thinking the government hadn’t learned to be discreet in its conduct in the digital world. This is a perfect example on how they are failing to apply traditional standards in the new context.”

When it comes to the government's insistence that users can't get their data back, Sofaer is quite troubled:

“That’s a dangerous road,” Sofaer said.

He suggested that the government hasn’t quite caught up to the digital age. He doubts the government would take the same position with a bank it seized.

“Of course they would help customers get back their deposits,” he said. “But think about this new world. You can see very clearly that the government is acting in a manner that is indiscriminate.”

I can't wait to see our usual critics explain how this former federal judge is just a pirate apologist who doesn't understand the law.

Filed Under: abraham david sofaer, doj, eff, hollywood
Companies: megaupload

Myths And Realities About Fair Use

from the and-a-quiz dept

Here's the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.

Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.

Myths and Realities about Fair Use

MYTH: Fair Use is only valid when it is non-commercial.

REALITY: Fair use is designed to expand the range of cultural production, not just the range of non-commercial cultural production. Almost all the occasional litigation on fair use, which has determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits aren't begun if there is no money to be gained.) Fair uses can be made of copyrighted material in any commercial context, so long as the “four factors” of consideration tilt toward the value of new contributions to culture against the cost to current owners. Currently the simplest calculation, the one preferred by the courts, is to find transformation (reuse for a different purpose), and to make sure that only as much of the original has been used as is necessary for the transformation; this is best done with a justification for the habits and practices of a particular creative or user community.

MYTH: Any non-commercial use is fair.

REALITY: Who's it hurting, right? That's a common argument, especially among vidders, remixers, and other creators in the online video environment, but the law doesn't in fact exempt non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately today be in a grey zone if you lean exclusively on the fact that you're not selling your work. That's especially true in online situations, where you may not be making money off your work but somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim, that pocketbook problem can be overridden (depending on how severe it is). Simply not making money does not give you a fair use pass.

MYTH: Fair use is always valid if you're using it in an educational context, and especially within a classroom.

REALITY: Being a good guy is not necessarily enough. Educational uses have their own special exemptions, but fair use in any educational context will have to abide by the same logic as in other contexts. But because fair use analysis is always done, implicitly or explicitly, within the context of a community of practice, you can refer to the mission and needs of your field. Educational contexts provide some very easy justifications for transformation (such as that students are analyzing the content). Educators need to pay particular attention to their claims to fair use if they are using commercial materials explicitly designed for their educational environment. In that case, an educator's use might not be transformative. Sometimes codes of best practices apply; for instance, media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education (centerforsocialmedia.org/fair-use/best-practices/media-literacy).

MYTH: Fair use is only about criticism and commentary, like parody for example.

REALITY: Criticism, commentary, satire and parody are all great examples of ways in which copyrighted material is reused for a different purpose than for its original market, in the process of creating more culture. (How does satire differ from parody? They are closely related. Parody holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything including behavior.) But they are not the only kinds of activities that qualify as transformative fair use. Pastiche without a specific point to make—a collage or mashup--can also be a fair use. So might quotation for discussion--and much more.

MYTH: Fair use is “the right to hire a lawyer.”

REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are. Your greatest comfort is in knowing that your peers in a community of practice have already agreed upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at face value and repeated it many times since. But Lessig made that remark before the beginning of the current fair use movement, which has greatly clarified safe interpretations of fair use for many communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford, which encourages wider interpretation of fair use.

MYTH: Fair use needs a really good “test case” in the courts, to set precedent.

REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side. Second, any particular lawsuit may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen that confuses or changes the story, muddying the judgment you wanted to get. For instance, the artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack Obama for a poster. But during preparations for the trial, he admitted lying about the photograph he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test case” is establishing clear standards of interpretation. Such standards can be highly useful in any ensuing litigation.

MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be ruined.

REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts. If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal and uncontested practice. In reality, people are employing fair use casually and comfortably every single day across the nation, often without thinking about it, and get no trouble at all. They are in the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics. Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they will get plenty of opportunities to settle for relatively small costs. But the most important thing to remember is that lawsuits are extremely rare, the exception to the rule.

People frequently confuse one kind of danger with another. For instance, the RIAA has sued a clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity and public awareness about the illegality of downloading copyrighted material available for sale by a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while racking up enormous legal bills for the RIAA and others. But the RIAA's case against downloaders bore no relation to any fair uses. Downloaders were simply accessing material they could buy for free, typically to use in exactly the way it was being marketed. The music industry may be backward- looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair users do not need to be frightened of RIAA lawsuits.

MYTH: Fair use is just a defense, not a right.

REALITY: Fair use is in fact a right that comes into play once someone accuses you of infringement. At that point, you would respond by saying that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you are both attacked and someone accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is a defense does not make it any less of a right.

MYTH: Fair use is just an interpretation, not part of the law.

REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law (and widely exercised before that, without being explicitly invoked), it is a key element of a policy dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First Amendment rights.

MYTH: I can't use fair use, because the copyright holders would never agree to it.

REALITY: Fair use is a right that you employ simply by accessing material, copying it and incorporating it into your project within an appropriate context. You do not need to get anyone's permission to do that, and you do not even need to let them know that you did it. Some legitimate and uncontested claims of fair use are even made after one or more attempts to license; the attempt to license may even increase one’s case for fair use, if the material is vital to what you are trying to say. Some people like to alert the people whose work they took, as a gesture of respect or homage, and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a vendor or archives holder of their fair use, because they have an ongoing business relationship that involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on the best terms possible.

Filed Under: aclu, book club, eff, fair use, free speech, patricia aufderheide, peter jaszi, riaa

As A Tribute To MCA: Can We Stop The War On Sampling?

from the mix-it-up dept

Update: Apparently not. The Beastie Boys have just been sued for copyright infringement over samples on Licensed to Ill and Paul's Boutique (both albums over 20 years old).

Late last week there was the very unfortunate news of the passing of Adam Yauch, better known as MCA, one-third of the Beastie Boys. I know a few people who have known him, and people only have had the most amazingly nice things to say about the guy. Like plenty of other folks, I've spent the past few days firing up old Beastie Boys albums, and (in particular) their classic Paul's Boutique -- which Nancy Sims rightfully pointed out: "it's a sad copyright lawyer that doesn't at least own" that particular album. And that's because not only is it one of the all-time great albums, it's also well known for including hundreds of samples.

Thankfully, for the world, Paul's Boutique (and a few other classic hip hop albums) got in under the wire, before the industry started throwing around lawsuits against each other for sampling. An analysis last year of what it would cost to clear all the samples if the Beastie Boys decided to put together such an album today, when not clearing every song gets you sued. It turns out that based on how much labels seem to charge for samples, and the massive number of samples on the album, Capitol Records would have lost $20 million on the album, despite it selling 2.5 million copies.

In other words, you could not reasonably clear all the samples. There is no reasonable price.

As a result of that, of course, we can't have the next Paul's Boutique, unless it's done underground and whoever makes it gets lucky that no one spots the work and gets angry. What an incredible step backwards.

In response to all of this, the EFF has pointed out that it would be a fitting tribute to MCA to fix this problem by creating a way to make sure that samples could be used in songs:

We think it’s pretty clear that the samples the Beastie Boys used in Paul’s Boutique and that Girl Talk now uses in his records are classic examples of fair use. Unfortunately, many artists these days are nonetheless under pressure to pay licensing fees for similar uses. Despite the fact that most cases rightfully find that sampling is not copyright infringement, the mere threat of a lawsuit (and the specter of statutory damages) is enough to intimidate musicians and labels alike. This cottage market of sample licensing stands in the way of creating the next Paul's Boutique – a sad comment on MCA's legacy.

The time to come up with a new, effective licensing scheme is long overdue. Young artists should be encouraged to remix and create in all the exciting new ways that technology allows, not sidelined by expensive licensing battles. Solving this problem would go a long way in that direction and be a fitting tribute to MCA, the Beastie Boys, and the fantastic remix culture they helped foster.

Forget the Sonny Bono Copyright Extension Act, where's the Adam Yauch Right To Sample Act? We shouldn't even have to fight for our right to sample. But... such is the unfortunate state of the law.

Filed Under: beastie boys, eff, girl talk, licensing, mca, paul's boutique, sampling

ISPs Ask Judge To Reconsider Order Allowing Copyright Trolling To Move Forward

from the time-to-reconsider dept

There have been a bunch of rulings in a variety of district courts around the country rejecting a variety of ways in which copyright trolling operations have been seeking to use the judicial system as a part of their business model -- not to actually take anyone to court, but merely to (a) identify people they can threaten and (b) threaten them with the possibility of a lawsuit if they don't pay up. Thankfully, an increasing number of judges have been calling the trolls out on this, and saying they won't be a part of this. Usually this comes in the form of rejecting a request for expedited discovery (which would allow the trolls to subpoena subscriber info from ISPs) or arguing that lumping together so many users into a single case was improper.

However, there has been one major exception to these rejections: the case in the DC district court by Judge Beryl Howell... who just happens to have been a former RIAA lobbyist, who only recently left that job to take a seat on the bench. The Howell ruling is regularly cited by trolls as proof that there's nothing wrong with the way in which they pursue these lawsuits -- ignoring a massive number of rulings that say otherwise.

The ISPs in that original case, though, filed by AF Holdings, represented by Prenda Law (which, you may recall, is connected to John Steele), are asking Judge Howell to reconsider (especially in light of all those other rulings). On top of that, they're saying that if she won't reconsider, they'd like to take the issue up to the appeals court before proceeding with the rest of the case. That could become important, as it would be the first time an appeals court weighs in on this. Some public interest groups, including the ACLU and EFF, have filed an amicus brief as well, asking Judge Howell to change her decision concerning discovery.

The hearing on this is today, and we'll let you know what happens.

Filed Under: aclu, beryl howell, copyright troll, eff, riaa, shakedown
Companies: af holdings

CISPA Has NOT Been Fixed; It Could Allow The Gov't To Effectively Monitor Private Networks

from the don't-buy-the-hype dept

When the new discussion draft of CISPA was published, many people including myself praised the one point of sincere improvement in the bill: the modified definition of cybersecurity that focused on network attacks. Unfortunately, the authors of the bill are spinning this to suggest that CISPA is now nearly perfect, and some media outlets and even advocacy groups are buying it—even though nothing could be further from the truth, and the White House still opposes the nature of the bill. CISPA still has big, big problems. In fact, closer analysis by the CDT and EFF suggest that the language may be worded to allow what is effectively direct government monitoring of private networks.

Government networks are protected by a network security system called Einstein, which is being steadily expanded to do things like analyze the content of communications. Such software meets all the criteria of a "cybersecurity system" under CISPA, and there is serious concern that the bill would permit the government to offer Einstein or a similar system to private cybersecurity companies. By CISPA's definitions, everything collected by such a system would qualify as "cyber threat information" and thus be open game for sharing with the government—and nothing in the bill would prevent these private systems from being connected live to government databases, effectively uniting them with the government's own security network.

Yes, it would still be voluntary—the government couldn't force a cybersecurity provider to install their software, and the provider would need to get permission from its clients to share the data. But it's not hard to envision a situation developing very quickly, in which the government gets a few major security players hooked up and their clients routinely agree without a second thought. After all, CISPA's extremely limited liability provisions mean there's little to no risk for companies. Some may question whether the government would actually move in this direction under CISPA, but given the fact that the NSA has been trying to expand Einstein to private networks since the Bush administration, giving them the legal ability to do so is a very bad idea.

Filed Under: cdt, cispa, cybersecurity, eff, einstein, surveillance, white house

FBI Almost Entirely Arbitrary In Redacting Info On Freedom Of Information Requests

from the transparency dept

The officials rules from the Obama Administration, when it comes to Freedom of Information requests, is that the default view should be the transparent one. In practice, we've seen exactly the opposite. Studies have shown that the Obama Administration has turned down FOIA requests at a greater rate than the previous administration (which was already pretty damn secretive) and often uses political reasons, rather than genuine secrecy reasons to hide information (for example, claiming ACTA had to be secret for national security reasons).

The EFF (which the administration has highlighted internally as an organization deserving more political scrutiny before documents can be released to it) has now pointed out that it appears that the FBI has extremely arbitrary standards for figuring out what to redact when complying with FOIA requests. Specifically, the EFF asked for multiple documents on two separate occasions and was amazed to find that the redactions were entirely different -- even if the reasons for the redactions were the same:

Through a careful comparison of thousands of pages of documents we received from this FOIA request with the same documents we received from an earlier FOIA request, we found that redactions in many of these duplicated documents were strikingly different. In several cases, the FBI redacted more information in later-produced documents than it did in earlier-produced documents. In other cases, the FBI redacted differing amounts of information when it produced two copies of the same report in response to the same FOIA request. Sometimes the agency blocked out whole paragraphs, while at other times it blocked out only the key words that explain the details of its acts. What is interesting is that the FBI claimed the same FOIA exemptions in each version; it just applied them differently.

What's most troubling is that the documents in question had to do with evidence of the FBI's own misconduct. So, if it's being arbitrary in figuring out what to redact, what's to stop it from just redacting the information it doesn't want to get out? The EFF page discussing this has some funky "slider" functionality that lets you look at the two different versions of redacted documents to see how the redactions appear to change quite arbitrarily. As the EFF notes, there might be less public demand for things like Wikileaks if the US government wasn't so secretive in such an arbitrary manner.

Filed Under: eff, fbi, freedom of information, redactions
Companies: eff, fbi

Time To Change (Or Ditch) The USTR Special 301 Process That Pressures Other Countries To Adapt US IP Laws

from the get-rid-of-it dept

A few days ago, you may remember, I posted the comments I submitted to the USTR on the Special 301 report, where I pointed out the value of allowing countries to set their own intellectual property policy, rather than forcing everyone to follow US faith-based intellectual property policy. Traditionally, the Special 301 process was a way for industry lobbyists to get the US gov't to put countries they didn't like on a special "watch list," that would lead US diplomats, who didn't even understand the lack of factual basis for the report, to start putting pressure on other countries to change their intellectual property policies to make them more draconian (funny, isn't it, that they only went in one direction?). Basically, lobbyists would submit the details of countries whose IP policies they didn't like, and the USTR would basically turn around and put out a list based on what was submitted, with little effort to actually look at the situation. This year, at least, the public was able to submit comments (such as mine, linked above), but it's unclear how much of an impact that will have.

In the meantime, EFF and Public Knowledge have teamed up to ask the USTR to change the process and, at the very least, stop taking the word of industry lobbyists as if it were gospel. They also suggested that the USTR be more flexible in allowing countries to set their own IP policy -- noting, amusingly, that the US itself famously didn't implement its "international obligations" in the Berne Treaty for decades, because the country felt differently about certain aspects of copyright law. Hell, even today we're not in full compliance with Berne. But for some reason the USTR acts as if other countries need to fall in line with US IP policy, even as we've chosen to go in a different direction when we felt it was warranted.

Of course, the best thing to do isn't to change the Special 301 process, but to ditch it entirely. It serves no reasonable purpose and has been abused by industry representatives for years. It puts a strain on US relations with other countries, and harms the ability for other countries to craft IP policy in the way that they feel will best serve culture and innovation.

Filed Under: copyright, eff, public knowledge, special 301, ustr
Companies: eff, public knowledge

Should Copyright Holders Pay For Bogus DMCA Takedowns?

from the seems-reasonable,-doesn't-it? dept

A few years ago, you may recall that Universal Music issued a takedown for a 29-second video involving a little kid dancing to a Prince song playing on the radio in the background. While the woman issued a counternotice and had the video put back online, the EFF sued Universal Music, claiming that it had filed a false DMCA takedown, since it did not take fair use into account. Universal Music tried to claim that it it shouldn't have to consider fair use, since fair use is just a defense, not a right. While the court eventually did (much to many people's surprise) say that copyright holders do need to take fair use into account, it's not really clear what sort of punishment there is for those who do not. In fact, we've seen that it's quite difficult to get any actual punishment for those who file bogus DMCA takedowns.

With that in mind, it's interesting to see that the EFF is now trying to recover its legal fees in the case, claiming that Universal's actions violated section (f) of the DMCA, and thus it should be liable for attorneys fees. Universal claims that there is already a "remedy," which is the counternotice process. But if that were the only remedy, then why does the law allow for legal fee recovery. Furthermore, if the only remedy is a counternotice process, there is nothing to really stop the filing of bogus DMCA notices, since there is no punishment for such activity.

In the linked article, Bennett Haselton argues that paying legal fees like this might not actually make sense, and worries about the legitimate content holder who accidentally files an incorrect DMCA getting hit with a big legal bill. But, again, I'm not sure how that applies. Shouldn't we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair.

Filed Under: dmca, eff, legal fees, prince
Companies: universal music

EFF Launches Copyright Curriculum To Counter RIAA Propaganda Being Handed Out To Schools

from the good-news dept

It's been quite troubling that for years various schools have simply accepted propaganda and totally inaccurate "teaching materials" about copyright and used them to teach students. These programs have been created by both the RIAA and the MPAA, at times. More recently, a lobbying organization backed by both of those organizations, the Copyright Alliance (which has a long history of making up the most fantastic myths about copyright) has been pushing a copyright curriculum on schools. Tragically, unsuspecting schools have been using the pure propaganda put out by the Copyright Alliance as if it were some sort of impartial and accurate educational material on copyright. It's not. Not even close. Last year, one of the world's foremost experts in copyright, William Patry, took the Copyright Alliance's founder to task for having "chutzpah in abundance" in basically making up what copyright and fair use is about, and presenting himself as some sort of expert on the subject.

Unfortunately, schools that are using these materials often don't realize that they're simply accepting corporate propaganda, assuming that a front group like The Copyright Alliance is some sort of impartial player in the space, even though its curriculum is laughably bad, positioning any kind of copying as a high risk activity that should be avoided. Luckily, the EFF has finally launched a much more accurate and reasonable curriculum that was actually created by those who know the subject matter, rather than corporate execs and lobbyists. The EFF's curriculum is available at Teaching Copyright and is under a Creative Commons license. Unlike many of the propaganda copyright curricula, Teaching Copyright focuses on the broader picture, recognizing the fact that copyright is not for protecting creators, but is a deal between creators and the public to encourage creation within certain important limitations. It covers important concepts such as the public domain and fair use that are either ignored or downplayed in most of the curricula put out by the industry. This is a welcome addition to materials for schools to use to educate students on copyright.

Filed Under: copyright, copyright alliance, curriculum, education, eff, fair use, propaganda, public domain
Companies: eff