Why Does The Copyright Office Keep Acting Like A Lobbying Arm For Hollywood?

from the doesn't-seem-appropriate dept

We've noted a few times recently that the Copyright Office has inserted itself into policy disputes where it has no business being. It's important to note that the role of the Copyright Office is supposed to be a rather specific one: to handle the registration of copyrights. It has little official roles in terms of actual policymaking -- the role is more about executing on the policy decisions of Congress. And, yet, over the years the Copyright Office has become a revolving door way station for execs from the entertainment industry, where they seek to use the Copyright Office as something of a taxpayer funded pro-legacy industry lobbying arm. Just in the last few months, we've reported on how the Copyright Office was flat out lying to the FCC about how copyright works in an effort to support the cable industry's plan to stop competition in set top boxes. Then there's its plan to strip websites of their safe harbors by making it a bureaucratic nightmare. Oh, and also its new plan to mess up the part of copyright law that protects libraries and archives. And let's not forget the absolutely ridiculous hearings the Copyright Office held a few months ago about the DMCA safe harbors, where they seemed 100% focused on pushing the RIAA/MPAA's plan to blame Google for everything.

What the hell is going on with the Copyright Office? This is not in its mandate and yet it's run like a government-funded lobbying arm of Hollywood? The folks over at Public Knowledge have now started putting together a long list (much longer than the above examples) of the Copyright Office incorrectly weighing in on policy issues, taking positions that favor the desires of the legacy copyright industries, rather than what the law actually says. It's a long and very troubling list.

As Public Knowledge notes: "If you’ve ever wondered what a captured agency looks like, look no further."

Here are just a couple of the examples from the list:

Endorsing SOPA

The Copyright Office famously endorsed the doomed (and downright awful) Stop Online Piracy Act and Protect IP Act, collectively known as SOPA/PIPA. Despite the fact that the bill attacked safe harbor mechanisms, allowed the US government to censor foreign websites, made posting copyrighted work under any circumstances a felony, and swept together all user-driven sites with upload capabilities as “promoting piracy,” the Copyright Office was unwavering in its support. In testimony before Congress, Register of Copyrights Maria Pallante called the bill “a sound policy choice,” “measured,” and thanked its drafters for drafting language that “would bestow a number of important responsibilities on the Copyright Office.”

[....]

A “Making Available” Right that Never Existed

In a 2016 report, the Copyright Office declared that U.S. copyright law had an unwritten right that gave copyright holders the power to dictate how, when, and under what circumstances their works were “made available”--or even offered--to consumers. The Office took a “squint-and-you’ll-see-it” approach, saying that the right existed by implication through a “gestalt”-style reading of the distribution, public performance, and public display rights. Register of Copyrights Maria Pallante even commented that “People question if we have ‘making available’ in the US, and we do--via treaties--and this report will make it clear that we have making available already. The question is whether Congress needs to do anything to make that clear or not.”

First, that’s not how treaties (or laws, really) work. Signing a treaty doesn’t make specific rights magically appear in U.S. law. Here--and in most cases--Congress has to actually write statutes to implement treaty requirements. If they decline to write the actual statutes, that’s a pretty clear sign that they’re not interested. And aside from the fact that the right doesn’t actually, you know, exist anywhere in the statute, the Copyright Office conveniently omitted the fact that numerous courts (the majority of those considering it, in fact) have rejected the idea.

The creation of an imaginary right wasn’t the only thing wrong in the office’s report; it also claimed that the Copyright Act’s requirement that a copy be a “tangible medium of expression” didn’t really mean anything and could encompass even offered transmissions of data--accepted or not. Alarmingly, the office decided that merely putting files in an accessible place would make a person just as liable as actually distributing them. As support, they cited a handful of minor district court cases from places such as Massachusetts, ignored higher court rulings to the contrary, deemed it an “unbroken line of authority,” and called it a day.

Yikes.

It's no secret that the Copyright Office wants more of a say in policy issues. This is a big part of the reason why it has been not-so-subtly lobbying to have the Office itself removed from the Library of Congress and set up as an independent agency (or, possibly, merged into the Patent and Trademark Office). But when it's already lobbying in ways that directly counteract the law (which more than one court has noted recently...) and appearing to act like a taxpayer-funded lobbying arm for some private companies, it raises some fairly serious concerns about the priorities and motivations of the Copyright Office and its staff.

Filed Under: copyright, copyright office, library of congress, lobbying, policy

Photographer Sues Getty Images For $1 Billion For Claiming Copyright On Photos She Donated To The Public

from the one-billion dept

Getty Images has a bit of a well-deserved reputation as a giant copyright troll, sending all kinds of nasty threat letters to people who use the images that Getty licenses. And even though it's showed some signs of adapting to the modern internet world, it hasn't given up on its standard trolling practices. It's also famously bad at it, often sending absolutely ridiculous threat letters.

But it may have sent one so stupid that it could potentially cost Getty itself a lot of money. That's because it sent a threat letter to famed photographer Carol Highsmith... demanding she pay up for posting her own damn photo. That would be bad enough on its own... but it's actually much, much worse. You see, Highsmith is such a wonderful person that she donated a massive collection of her photographs to the Library of Congress -- over 100,000 of them, for them to be released royalty free for the public to use. She didn't put them fully into the public domain, though, instead saying that anyone could use them so long as they gave credit back to her. It was basically a very early kind of version of what's now known as the Creative Commons Attribution License (which didn't exist at the time she made that agreement with the Library of Congress).

And, so here was Getty Images claiming that it held the copyright on these photos, demanding that Carol Highsmith pay up for using her own photograph, which she had deliberately donated to be used freely.

That's... not legal.

So Highsmith is now suing Getty Images for violating Section 1202 of the DMCA (part of the DMCA that doesn't get nearly as much attention) for falsifying copyright management information.

The Defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people. The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.

As described further herein below, the conduct of the Defendants runs afoul of the DMCA’s provisions proscribing the removal, modification and falsification of “copyright management information,” unlawful conduct that has injured Ms. Highsmith, thereby entitling Ms. Highsmith to the relief sought herein.

The lawsuit notes that despite informing Getty that it was in the wrong, the company continued to demand money from other people making use of her photographs. She also notes that this is not the first time Getty was found to be violating DMCA 1202, and that justifies a much larger monetary punishment.

Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms. Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight hundred seventy-five thousand dollars ($468,875,000).

The unlawful conduct complained of herein is not Getty’s first violation of the DMCA, codified at 17 U.S.C. § 1202.

Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last 3 years, and ordered to pay over $1 million in damages.

Because Getty has already had a final judgment entered against it by this Court under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in this case against Getty.

Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.

The $1 billion number is a bit extreme, but it is true that Getty doesn't seem to care at all, and has been shaking down people for ages, sometimes over rights it does not hold. As the lawsuit notes, since Getty doesn't seem interested in changing its practices, perhaps a more stringent award is necessary.

If you're wondering about the previous case mentioned above, it's another one that we covered -- the weird and wacky case involving photos from Daniel Morel that were taken in Haiti, leading to a mess of a lawsuit (where almost everyone was totally confused at the beginning) that ended in Getty having to pay up for distributing a photo with incorrect attribution.

The lawsuit also goes after a smaller Getty competitor, Alamy, that is doing the same thing, and some Getty subsidiaries, LCS and Piscount, who, again, are doing the same thing (in fact, the threat letters Highsmith received were from Piscount and LCS). To make matters even more confusing, even though Alamy is a Getty competitor, it uses a Getty subsidiary, LCS, to send out threat letters demanding cash. The lawsuit explains that Highsmith called up LCS and had to talk with them for half an hour convincing them that she was the photographer, she holds the copyright and the images are all available royalty free for anyone to use (with credit back to Highsmith). LCS then informed her that the case against her "was closed" but... continued to shake down others using her images. That makes things look even worse for Getty in this lawsuit, because she can show at least some level of knowledge that they were making fraudulent copyright claims.

This should certainly be an interesting case to follow...

Filed Under: attribution, carol highsmith, copyright, copyright troll, copyright trolling, dmca 1202, library of congress
Companies: alamy, getty images, lcs, piscount

Desperation Shows As Critics Argue That Nominated Librarian Of Congress Is 'Pro Obscenity'

from the that's-the-best-you've-got? dept

Last week, we wrote about the exciting decision by President Obama to nominate Dr. Carla Hayden to be the next Librarian of Congress. As we noted at the time, she seemed immensely qualified for the position, having successfully run and modernized the Enoch Pratt Free Library in Baltimore. She also clearly recognized the importance of open access and access to culture. Given the job, there's really no honest reason that people can find to criticize the choice. She seems almost perfectly qualified for the position.

But, of course, there are some critics, and boy, are they reaching deep in the depths of inanity to attack this choice. A key issue, of course, is that the Copyright Office is part of the Library of Congress, so Hayden would run the Copyright Office as well. In our original post, we already noted the rather snide statement put out by the RIAA, which basically says "Hayden's fine for the library, but she better keep her filthy hands off of the Copyright Office":

“We are gratified that President Obama has chosen a qualified and capable nominee to be the next Librarian of Congress. We look forward to working with Dr. Hayden.

“It is worth noting that the Library of Congress and the U.S. Copyright Office have been mutually respectful of each other’s areas of expertise. We would hope that the new Librarian would continue to demonstrate that respect for the Copyright Office’s expertise in copyright policy and recommendations to Congress.”

This is bullshit, of course. Basically, the Copyright Office has been ignored by the Librarian of Congress, because the last Librarian basically ignored his job, focusing on hobnobbing with rich people in fancy locations, asking them for money. The MPAA's statement wasn't quite as bad, but did laughably claim that they hope she'll honor "the role of copyright as a driver of knowledge and creativity" which is not a particularly accurate statement:

“We congratulate Dr. Carla Hayden on her nomination. The Librarian of Congress plays a pivotal role for the copyright industries and the nation as a whole as the custodian of our intellectual and cultural heritage. We look forward to learning more during the confirmation process about Dr. Hayden’s vision for leading the Library and honoring the role of copyright as a driver of knowledge and creativity, as well as an engine of our nation’s economic growth and positive trade balance.”

The sketchy lobbying group, the Copyright Alliance did something similar to the RIAA, saying "keep your hands off the Copyright Office."

“We in the Copyright Community hope that Dr. Hayden will demonstrate a deep respect for the value of copyright; appreciate and support the value of authorship to our culture and the laws that protect that authorship; cultivate a direct relationship with the Register of the Copyright Office, Maria Pallante, and continue the deference that the Librarian of Congress has historically demonstrated to the Register of Copyrights.”

But from there, the complaints really stretch the bounds of reality. First up, there's old friend of the blog, perpetually angrily confused musician David Lowery, who breathlessly announced his horror at the fact that the "former director of [a] P2P Piracy Alliance" had endorsed Hayden. Of course, what Lowery leaves out entirely, is the fact that the individual in question, Adam Eisgrau, works for the American Library Association, the exceptionally well respected organization that represents library interests, and of which Dr. Hayden was once President. So it should hardly be a surprise that the ALA supports Hayden's nomination.

But, in Lowery's telling, this is all really about piracy, because well over a decade ago, Eisgrau happened to run the group P2P United, which represented a bunch of P2P applications in lobbying Congress to teach them about the technology and the fact that it had plenty of non-infringing uses. The group once helped raise money to pay off the $2,000 fine that the RIAA forced upon a 12-year-old honor student who downloaded some music. And, as Eisgrau noted at the time, contrary to Lowery's claim that his group was about supporting piracy, the group had always spoken out against piracy, but warned about the harm of throwing out the baby (P2P technology) with the bathwater of infringement by some users.

But, really, Lowery's statement is not the craziest one we've seen. That award goes to a press release I received yesterday from a group called The National Center on Sexual Exploitation (NCOSE) trumpeting that "Obama nominee to Library of Congress led a pro-obscenity group!" Oh really? Of course, it turns out that the "pro-obscenity group" is also the famous and well respected... American Library Association. NCOSE insists they're "pro-obscenity" and "pro-porn" because the ALA has long fought against mandatory internet filters in libraries.

President Obama has announced his intention to nominate Dr. Carla Hayden, former president of the American Library Association, to the post of Librarian of Congress. The National Center on Sexual Exploitation (NCOSE) believes that the pro-pornography agenda of the ALA raises concerns about Dr. Hayden’s nomination.

"The American Library Association (ALA) has been on a campaign to prevent the use of pornography-blocking Internet filtering systems on public library computers since the 1990s," said Patrick Trueman, president and CEO of the National Center on Sexual Exploitation. "The ALA even filed suit in 2001 against the Children’s Internet Protection Act (CIPA), written by U.S. Sen. John McCain (R-AZ). The act was designed to protect children from pornography by requiring the use of Internet filters on computers at public libraries receiving federal funds. The U.S. Supreme Court upheld this statute as constitutional. Yet, the ALA during Dr. Hayden’s tenure as president opposed this common sense measure and distorted the Supreme Court’s decision regarding it, as it continues to do to this day."

That, of course, is a massive misstatement of history. The ALA opposed mandatory filters not because it's "pro-obscenity" but because those filters don't work (both in that they block a lot more than porn, including important educational resources, and in that lots of porn still gets through) and because libraries believe in the importance of freedom to access information. That doesn't mean that it's okay for children to surf porn, but that there are better ways to deal with that than mandatory filters on all computers (even ones exclusively used by adults).

To understand the actual positions of the ALA regarding CIPA, why not read the group's actual statements, such as the explanation of why mandatory filters may not be the best solution by former ALA President Nancy Kranich:

Librarians are dedicated and committed to providing an enriching and safe online experience for children and adults alike. We care deeply about children and all of our library users. We have taken numerous steps to help communities develop policies and programs that ensure that their library users have a positive online experience. Based on our extensive experience working with children and their parents everyday throughout the country, we know what works. More than 95 percent of public libraries have Internet-access policies that were created with community input. These policies set forth the community’s rights and responsibilities for conducting productive, safe Internet use. The vast majority of library patrons use the Internet responsibly, as outlined by their communities’ policies....

... Just as every parent is a little different, every local community has its own set of priorities based on its geography, demographics and size - to name just a few of the factors.

This presents a major problem with the Children’s Internet Protection Act. This legislation imposes a one-size-fits-all mechanical solution on libraries that are as diverse as our families and takes away local and parental control, ceding it to unaccountable filtering companies. Blocking technologies come between librarians and their mission - to connect people with a broad range of information to meet their needs.

And another statement by former ALA President John Berry:

The filtering mandate imposed by Congress is unworkable in the context of a public institution because it restricts access to constitutionally protected speech on the users served by libraries. No filtering or blocking technology exists that blocks access only to speech that is obscene, child pornography or harmful to minors. And no filtering technology protects children from all objectionable materials. many of you will have seen the March issue of Consumer Reports evaluating several filtering software products; the best of the products failed to block one objectionable site in five.

We’re concerned that filters give parents a false sense of security that their children are protected when they are not. Not all problems brought on by transformative technological innovation, like the Internet, have technological solutions, at least in the short term. We believe that education is more effective than filters—kids need to make good decisions about what they read and view, no matter where they are. To be sure, this is a collaborative effort between parents, teachers, librarians and many others.

The Children’s Internet Protection Act is a misnomer. The legislation does not strictly limit access for minors, but for adults and all Internet users in a library.

If this is the best that people can come up with, hopefully it means that Hayden's nomination will sail through. But, boy, people are reaching deep to argue that the American Library Association is either "pro-piracy" or "pro-pornography" by misrepresenting events from over a decade ago, and magically tying them to Dr. Hayden.

Filed Under: carla hayden, copyright, copyright office, david lowery, internet filters, librarians, library of congress, patrick trueman
Companies: ncose

Library Of Congress Releases DMCA Anti-Circumvention Exemptions... And It's A Hot Mess

from the because-of-course dept

Well, the Library of Congress has now released its official exemptions to the DMCA's 1201 anti-circumvention rules, the ridiculous process known as the triennial review, and as was pretty much expected, it's a total mess. We'll have a more thorough look at it later, but after an initial read through of the document, it appears that the Library of Congress tried to please everyone and will likely end up pleasing no one. If you're unfamiliar with the process, under the DMCA, there's a part of the law, section 1201, which says that it's copyright infringement to bypass any kind of "technological protection method" (TPM) to access something, even if the reason you're circumventing the TPM is totally non-infringing. Basically, this says that if you put a digital lock on something, even if the lock is weak or stupid or for something totally unrelated to copyright law (such as blocking competition), you can use copyright law to stop anyone from getting around it. The concept is so stupid and so broad that even Congress realized it would be abused. But rather than fix it, it gave the Library of Congress this weird authorization to declare "exemptions" once every three years. So, basically, every three years people ask for exemptions (and each exemption granted in the past needs to be re-requested, and re-supported every three years). Then the Library of Congress climbs a mountain, thinks on it for a bit, and comes down the mountain declaring what is legal and what is not. It's an insane process.

Three years ago, things went really haywire when the Library of Congress took away the exemption it had previously granted for cell phone unlocking. This resulted in widespread protests, and eventually Congress stepping in with a bill that didn't actually fix the underlying problem, but just reinstated the previous exemption and told the Library of Congress to be more careful next time.

You can see in the latest exemptions that the Library of Congress has taken Congress's mocking a bit to heart -- as it seems totally gun shy on just about everything. It refers repeatedly to Congress's decision to bring back the unlocking exemption and reads more into it than is necessary. But, because of this, it seems to want to tiptoe down the line, allowing exemptions, but putting all sorts of weird restrictions on them. For example, one of the most talked about requests was the one for accessing vehicle diagnostics. You may recall that GM, John Deere and even the EPA said the Library should reject these requests, because people might get access to diagnostic info... and then break emissions controls and pollute the environment or something. Apparently, only the automakers should be allowed to do that by themselves.

Here, the Library of Congress sort of grants that exemption, but with all sorts of caveats:

Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.

Even more bizarre, in the description about this exemption, it appears to say that this exemption can only be used if you are doing the circumvention yourself -- and not for hiring someone to do it for you. Absolutely ridiculously, it points to the language of the bill Congress passed to smack the Library around last time on the phone unlocking exemption:

Moreover, by passing the Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other devices to be carried out by third parties “at the direction of” device owners—Congress indicated its view that extending the reach of an exemption to cover third-party actors requires a legislative amendment.

Wha....? In the fight over the Unlocking Act, there was serious concern that early drafts of the bill would cut out companies that help individuals unlock their phones. And thus to make sure that such things weren't excluded, Congress made it explicit that it covered third parties unlocking phones "at the direction of" device owners. And yet... now the Library of Congress is ridiculously interpreting this to mean that it cannot grant such an exemption without Congress stepping in.

That's... wrong. And ridiculous.

And that's not the only problem with this. The one year delay in implementation is ridiculous as well. The Library of Congress notes that this is to allow other agencies to weigh in, but we just had a whole year for agencies to weigh in and many of them did. Yet, now, they want to delay the implementation of a three year exemption by one whole year in case more of them want to weigh in after the fact? Clearly this is because the Library of Congress is gunshy about what happened with unlocking last year, but to totally upend the process and delay a necessary exemption is no way to do that.

Similarly bizarre: the Library of Congress seemed to think it's perfectly fine to weigh outside factors in determining this issue, even though it's supposed to be judging things entirely based on the copyright issues. So, for example, with this same exemption on car repair and diagnostics, it allows the Copyright Office to review copyright-related factors, but then seemed to indicate that it was just fine for it to also review things that have nothing to do with copyright. It notes that "serious safety and environmental issues... weigh against an exemption." But that's not a copyright issue. We should not be using copyright law to regulate other things. We already have safety and environmental laws, and the Copyright Office explicitly endorsing the use of copyright laws to add some sort of additional environmental law (especially one that gets it so backwards) is patently ridiculous.

There are other problems in the rules as well. Michael Weinberg takes a look at the similarly problematic rules on 3D printing, where the same basic thing happened. The overall rule seems like it's going in the right direction, but is so full of weird and unnecessary and troubling caveats that it mostly erases the good parts of the rule.

There are similar issues in other parts as well. For example, an exemption is added for MOOCs (Massive Open Online Courses) that want to use small snippets of locked up content (usually movies or news clips) as part of their classes: classic fair use. And the Library of Congress says that's okay... kind of. It only applies to "accredited nonprofit educational institutions." That sounds reasonable at first, until you realize that many MOOCs are actually run through for-profit entities. For example, Coursera is one of the most popular MOOC platforms out there, but is a for-profit venture. So, the exemption here wouldn't be usable by National Geographic, who runs its MOOC via Coursera. And there are lots of others who would be similarly blocked, even if the use is clearly fair use. (Update: Actually, it appears this would be allowed).

It really seems like the Library of Congress has made things increasingly more complex for the sake of trying to "split the baby" on things, and in part because it got slapped down so hard three years ago. But the end result is that you get a split baby that seems to go way beyond what the law was intended to allow and pisses off everyone (especially the baby). Laura Quilter, the Copyright and Information Policy Librarian at UMass Amherst summarized the mess of these rules this way:

The prolixity of this rulemaking puts it into its own special hell of inaccessible, unintelligible, crazy-making meshugaas.

This isn't how law should be made, and it's unclear why this is still allowed.

Filed Under: 1201, 3d printing, anti-circumvention, cars, copyright office, diagnostics, dmca 1201, dmca triennial review, epa, fair use, library of congress, repair, software, triennial review

How Bad Copyright Law Makes Us Less Safe... And How Regulators Have It All Backwards

from the fix-1201-now dept

For quite some time we've pointed out how problematic Section 1201 of the DMCA is. That's the part of the law that says it's copyright infringement to simply circumvent any kind of "technological protection measure" even if the reasons for doing so are perfectly legal and have nothing to do with infringement at all. And, of course, we now have the big "1201 Triennial Review" results that are about to come out. That's the system that was put in place because even Congress realized just how stupid Section 1201 was and how much innovation and research it would limit -- so it created a weird sort of safety valve. Every three years, the Copyright Office and the Librarian of Congress would work together to come up with classes of technology that are magically "exempted" from the law. Now, normally, you'd think that if you have to come up with exemptions, there's probably something wrong with the law that needs to be fixed, but that's not the way this worked.

The latest triennial review results are about to come out, and a lot of people are focused on it -- in part because of current events. As you may recall, earlier this year, we wrote about one of the exemption requests in particular: over whether or not you can tinker with the software in your car. GM was fighting against this, and we were shocked to then see the EPA side with GM (!?!?) on this issue, claiming that it's a perfectly reasonable use of copyright law to stop tinkering with cars on the off chance that some of that tinkering might lead to changing emissions to illegal levels.

Of course, just a few weeks later, we discovered that VW had been playing games with its software to avoid emissions tests and pollute the world at a much greater rate than is legal (or healthy). Many people have pointed out that, if the software wasn't all locked up, it seems likely that people would have discovered this problem much earlier. The latest to weigh in on this is Senator Ron Wyden, in a WSJ op-ed, where he explains how the EPA has this whole thing completely backwards:

This year the Environmental Protection Agency submitted comments to the Copyright Office requesting that no exemptions should be granted for car owners or researchers to access and modify the software in their vehicles. The EPA says you shouldn’t be allowed to tinker with your car because it might increase emissions from your tailpipe.

This would block any researcher who would study software in automobiles to make them safer or more environmentally friendly. This summer, security researchers demonstrated that a hacker could take over a Jeep’s systems—GPS, transmission and brakes, among others—over the Internet. This could lead to crashes and even sabotage. In this case at least, Chrysler recalled 1.4 million vehicles to patch that vulnerability, which otherwise could have gone unnoticed.

The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future. Volkswagen’s falsified emissions reports were discovered by independent testing—yet the source of the problem was in the automobile’s software. Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.

In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.

And it's not just the EPA. As Wyden notes, the FDA is doing something similar, which may be even more dangerous:

The Food and Drug Administration also is getting in on the copyright game. It is telling the Copyright Office that modifying software in medical devices, and then providing them to patients without FDA approval, could put people in danger. But the distribution of untested devices is already illegal. Copyright law should not prevent researchers from taking a look at the software and thinking about how to make devices more effective and safer.

Wyden (along with Rep. Jared Polis) introduced a bill earlier this year to try to deal with this on a permanent basis, rather than through this ridiculous triennial review process. Of course, if the TPP is approved, it may be more difficult to actually make such a change.

But, really, the fact that the FDA and the EPA are making these arguments is a real sign of just how broken our copyright law is and how little many regulators understand innovation, technology and intellectual property. The EPA and the FDA come from a world of "permission-only innovation." They are both focused solely on setting up laws that "prevent bad stuff" usually through setting up testing regimes. But those regimes can be gamed -- and they don't seem to recognize that by allowing permissionless innovation to happen, it also opens up worlds of useful research and beneficial innovations, both of which could do a lot more to prevent the kinds of harm that the EPA and the FDA think they're preventing by opposing these exemptions.

There's a fundamental misunderstanding of the nature of innovation in this setup -- where regulators think that the unknown must be "dangerous" and should be prevented until proven okay. But, as history has shown, such a setup only opens up all sorts of games that the big knowledgeable players can use to dance around those regulations, and no real way for outsiders to call them on it (or to create better alternatives). Permissionless innovation is not just a slogan, it's incredibly effective -- and misusing copyright law to prevent it, out of the fear that something bad might possibly happen, without recognizing all the good that is much more likely to come from it, is really dangerous. We're only just learning that now because of what's finally come out in the news about VW, but getting rid of the stupid anti-circumvention clause in the DMCA would go a long way towards actually fixing this mess, rather than relying on bureaucrats whose defacto response is to say "don't do that."

Filed Under: 1201, anti-circumvention, copyright, copyright office, dmca, dmca 1201, emissions, epa, fda, innovation, library of congress, permissionless innovation, research, ron wyden, security

NSA Cheerleader Ben Wittes Takes A Written Swing At The Anti-NSA Crowd And Misses His Target Entirely

from the pro-surveillance-jackassery dept

Benjamin Wittes, adjunct NSA apologist at the Brookings Institution and the most prolific blogger at Lawfare, has just unloaded a post meant to portray those opposed to the NSA as simpleminded strawmen/women who are triggered by certain letters rather than by the critically-important nuances.

Here's the gist of it, which I can hopefully convey without copy-pasting the entirety of the short, extremely self-satisfied piece.

I was at the National Security Agency yesterday giving a Constitution Day speech and I learned details of a shocking collection program: The government is bulk collecting all traffic on Twitter. Under a program menacingly called “Bulk Data in Social Media” and abbreviated—appropriately enough—as BDSM [insert proxy self-amused snicker here], Twitter has been providing all public traffic since 2010 for a massive government database that, as of early last year, contained 170 billion tweets. The goal of this program? To “collect the story of America” and to “acquire collections that will have research value” to analysts and others.

Those of you who are not the morons Wittes makes you out to be will already know where this is headed. Wittes breathlessly adds in italics that Twitter does this voluntarily without a court order or FISA court review.

Then he drops the "bombshell."

Why would NSA do all this?

It wouldn’t. The agency I’m talking about here is the Library of Congress.

Yes, the Library of Congress is collecting every Tweet with the blessing of Twitter itself, and has been doing so for years. It was in all the papers. Those of us opposed to the NSA's bulk collections are supposed to stare deep inside ourselves as Wittes fumblingly twists the rhetorical knife.

So here’s the question: If you were shocked when you read the first paragraph of this post and relieved when you read that the agency doing all this collection is not NSA but the good guys over at the Library of Congress, and that the good guys are actually planning to make that data available widely, why did you have those reactions? And do those reactions make sense?

First of all, no one with any amount of sense would claim that the government can't access or collect public messages on a public platform. That's an expectation we live with when we use these services. But the collection of every public tweet for archival and research purposes is far different than the collection of private metadata and communications for the purposes of rooting out threats to the nation's security. (Or fighting drug wars, etc.)

It's called intent. Wittes should look that up. Also, he should perhaps look into the difference between public and private info if he's got the time.

While many people use social media to lay bare certain aspects of their lives, a high percentage of them do not reveal everything, or at least not as much as "just metadata" can reveal. Many intimate details about a person's life can be revealed by the data they "voluntarily" hand over to third parties. Cops can track people's movements with license plate data. The NSA can peer deeply into a person's life with bulk phone records. People don't "volunteer" this information, but there's no way to opt out. Vehicles travel outside on public roads. Phone connection data is collected because phone companies need to track usage for billing (and are required to do so by the federal government).

Billions of tweets are all given up voluntarily by Twitter users. Even those who regret tweets they've sent or accounts they made still know in the back of their mind it's been archived somewhere. It's public speaking on a public platform.

Which brings us to another major difference between the two: transparency.

The Library of Congress has addressed this collection program publicly a number of times. Twitter also publicly announced this partnership. If anyone wanted to avoid being part of this collection, they could simply avoid using the platform -- a choice more realistic than the government's continued assertion that travel and communication are "luxuries" in which we wlllingly exchange our rights for convenience.

What has the NSA announced? Not a goddamn thing. It's only talking now because someone took its secret programs and spread them all over the internet. Now it has to address these issues, but even in this era of forced openness, it still deploys a tremendous amount of black ink.

I'm sure Wittes' post garnered a few chortles from like-minded individuals (including some he heavily elbowed in the ribs), but the whole setup is disingenuous. It conveniently ignores crucial differences between the two forms of collections in hopes of portraying the anti-NSA crowd as ultimately no more complex than single-celled organisms. The good news is that those of us on this side of the divide are constantly underestimated by those whose views skew more towards Wittes'.

This sort of presumptive arrogance is what allowed a government contractor to walk out the door with thousands of classified documents from the top national security entity in the world -- one with a massive budget and the best minds the government could hire. The NSA simply believed nothing of that scope would happen to No Such Agency, even with an obviously lax set of internal controls. Now it's been burned. And yet, its apologists still think they can talk down to everyone on the other side of argument.

Filed Under: ben wittes, communications, library of congress, metadata, nsa, private, public, sharing, surveillance, volunteering
Companies: twitter

FBI Agent Tries To Register Copyright On Top Secret Interrogation Manual... Making It Available To Anyone

from the copyright-uber-alles dept

Here's a bizarre one on so many levels. The FBI has a top secret 70-page "interrogation manual." For years, the ACLU has been trying to get its hands on a copy, finally receiving a heavily redacted one. However, it turns out that if the good folks at the ACLU had just decided to wander over to the Library of Congress, they could have seen a totally unredacted copy of the entire manual, as could anyone else with a library card. Why? Because in this bizarre age we live in, in which people seem to think it's important to copyright absolutely everything the senior FBI official who authored the manual decided that he should try to register a copyright on it, and submitted it to the Library of Congress as a part of the registration process, whereby it becomes available to anyone who stops by and asks for it.

This is idiotic on multiple levels. First, as is well known, documents produced by federal government employees are automatically public domain, meaning that you cannot copyright them. Second, of course, why the hell would this FBI supervisory special agent think it even made the least bit of sense to try to get a copyright, let alone submit a copy of the top secret manual to the Library of Congress? Then, of course, there's the issue that even if it was possible to put a copyright on this document (and, again, there's not), it would almost certainly belong not to the individual FBI agent, but to the government itself. Not only can't this guy get a copyright, but there's no reason for him to try to get a copyright (what, is he going to sell the book?), and then revealing the manual to anyone, let alone an operation whose basic entire purpose is to catalog the works and make them available to the public is quite incredible.

Mother Jones, who went and found the manual at the Library of Congress, quotes a few people who are reasonably shocked that this happened:

"A document that has not been released does not even need a copyright," says Steven Aftergood, a government secrecy expert at the Federation of American Scientists. "Who is going to plagiarize from it? Even if you wanted to, you couldn't violate the copyright because you don't have the document. It isn't available."

"The whole thing is a comedy of errors," he adds. "It sounds like gross incompetence and ignorance."

Julian Sanchez, a fellow with the libertarian Cato Institute who has studied copyright policy, was harsher: "Do they not cover this in orientation? [Sensitive] documents should not be placed in public repositories—and, by the way, aren't copyrightable. How do you even get a clearance without knowing this stuff?"

Aftergood's comments are a little misleading, as there are certainly reasons why someone might want to register a copyright on an unpublished work (though, none of them apply to this particular work), and plagiarism is a different issue from infringement. But his point about "gross incompetence and ignorance" seems on point.

Of course, now that the full document can be seen by anyone, Mother Jones compared it to the ACLU's redacted version, and while they're not allowed to make copies or take notes when viewing the document, they were able to look at some of the redacted sections, including revealing some questionable techniques. From what's been revealed, it appears that the manual does encourage the use of very outdated and discredited interrogation techniques. In an interesting bit of timing, there was just a fascinating New Yorker article focusing on how law enforcement in the US still uses this completely debunked method, known as the "Reid Technique," which has a long history of eliciting false confessions (there's also a really good summary of the details over at NPR). US law enforcement has long been resistant to moving away from these methods, despite their ineffectiveness, but thanks to one not-particularly-knowledgeable FBI agent's desire to copyright an uncopyrightable work, we now know a bit more about the FBI's continued promotion of these techniques.

Filed Under: copyright, fbi, interrogation, library of congress, public domain, reid technique, security
Companies: aclu

Did The Library Of Congress Just Honor Copyright Infringement?

from the questions,-questions,-questions dept

Every year, the Library of Congress selects 25 recordings (music, spoken word, etc.) to honor by naming them to the National Recording Registry. Among the works so honored this year is De La Soul's classic first album, 3 Feet High and Rising. Now, this decision to honor that work set off some shocked responses from folks like Copycense, who quickly pointed out that there's tremendous irony here. That album more or less changed the entire concept of sample-based hip hop music, because its success made the band a legal target. While the album still is out there, it's effectively illegal, because the massive number of samples involved in the album can't be cleared, and thus the band has had to use workarounds to rerelease any of the tracks.

Copycense also points out how utterly ridiculous this is. The Library of Congress is the home of the Copyright Office, who has done nothing helpful in terms of sample-based music. Copyright law has made it illegal (even if some still practice it, but not in the same manner as it was being done in the past -- at least not "legally.") And yet... here is the Library of Congress honoring just such an album. An album that couldn't actually be released today.

If the Library of Congress really wanted to honor that album, rather than listing it in the National Registry, how about fixing the law so that creativity of that nature is allowed to flow, rather than having it criminalized?

Filed Under: copyright, de la soul, library of congress, national recording registry

Universal Music Donates Master Recordings To Library Of Congress... But Keeps The Copyright

from the so-what-good-is-that? dept

charliebrown was the first of a few of you to send in the recent news of how Universal Music had decided to donate over 200,000 master recordings to the Library of Congress:

The American people, through the nation's library, will receive a post-holiday gift of vintage sound recordings from one of the world's largest recording companies. The Library of Congress and the Universal Music Group (UMG) announced today the donation of more than 200,000 historic master recordings--many long out-of-print or never released--to the Library's Recorded Sound Section, which has more than 3 million sound recordings in its collections.

Totaling in excess of 5,000 linear feet, UMG's gift is the largest single donation ever received by the Library's audio-visual division and the first major collection of studio master materials ever obtained by the nation's oldest cultural institution. Among the collection�s thousands of metal and lacquer discs and master mono tapes are released and unreleased versions of recordings by such seminal artists as Louis Armstrong, Bing Crosby, Tommy Dorsey, Billie Holiday, the Andrews Sisters, Connee Boswell, Jimmy Dorsey, the Mills Brothers, Guy Lombardo, Ella Fitzgerald, Fred Waring, Judy Garland, and Dinah Washington, among others.

All of that sounds nice and surprisingly altruistic from an operation like Universal Music... until you read the fine print. That's because missing from the LoC's excited announcement is the fact that Universal Music retains the copyright on the recordings, and is basically just handing off the physical archival costs to the American taxpayer. It will let the LoC stream the music -- which is better than nothing, but it's not nearly as impressive as actually donating the copyrights as well.

Filed Under: copyright, library of congress, music
Companies: universal music

Did Library Of Congress Lie? White House Says No Requirement To Block Wikileaks

from the the-law-is-the-law? dept

On Friday, we wrote about how the Library of Congress, in an act of pure denial, had blocked Wikileaks, saying that it was required by law to block access to the site. As we noted at the time, this seemed silly, since the documents were widely available all over the internet and press reports were covering most of the details anyway. We got a few folks in the comments to respond with statements along the lines of "the law is the law, they have to block it." Of course, that misses the point. Even if there was such a law, the only way to "block" such information is to shut off the internet entirely, which is pretty pointless. However, a few folks also responded by asking what law, and the answer might be none.

In an article about how different parts of the government have been warning government workers that these documents are still considered classified and to treat them accordingly, the White House officially stated that it is not advising government agencies to block Wikileaks. In other words, it sounds like someone at the Library of Congress is overreacting -- interpreting rules about dealing with classified documents to mean that it needs to block access to the website, when that doesn't appear to be the case.

Either way, the whole thing is pretty silly. It's about time the government stops using a reality-denying definition of "classified" documents. In the business world, something is no longer considered a trade secret once it's out there. If the government wants to respond to actual conditions out in the world, it should do the same. If a classified document is leaked like this, it's downright silly to still consider it classified or confidential. Just admit that it's now public info and move on.

Filed Under: blocks, censorship, library of congress, white house, wikileaks
Companies: wikileaks