HBO Issues Takedown For Artwork Made By Autistic Teenager Because Bullies Gonna Bully Y'all

from the takedowns-are-coming dept

It's well-known at this point that HBO guards its intellectual property on the Game of Thrones franchise more jealously than a direwolf with a freshly harvested bone. To that end, the company often times treats some of its biggest fans with disdain, such as when it killed off viewing parties that would otherwise generate more interest in the show, or the times it abused the DMCA process as a way to keep spoilers from the show from permeating. These actions are indeed annoying, but they lack a certain something in the pure evil department.

Unlike, say, HBO issuing a takedown on some art produced by a thirteen-year-old autistic child just because that art included a trademarked catchphrase from the show.

"My daughter, who happens to be autistic, was doing an art challenge called Huevember which consisted of doing a piece of art based on a different colour as you worked your way round a colour wheel," Jonathan Wilcox, of Edwinstowe in the UK, told The Register on Thursday.

"She was uploading her pictures to a variety of sites and sharing them on Facebook. For this particular piece, she decided to title it 'Winter is Coming.' I do not believe she uploaded the picture to RedBubble to make any particular financial gain, she just thought it a sensible place to put it."

So a child makes some art and puts it on the internet, because that's what you do these days. It should be noted that the artwork was not being sold on the site, only displayed. HBO's lawyers come across it and take it down, with nary a conversation. And, lest you think that the artwork itself had something to do with the show, thus ameliorating HBO's actions, here is the artwork in question.

As someone who watches the show regularly, the image doesn't appear to me to be in any way connected to the show. Nor, likely, is the text itself. It's far more likely that a child that created some art at a certain time of year came up with the phrase independently. But, because that phrase is trademarked by HBO, the takedown was issued.

The takedown notice forwarded by Redbubble to Wilcox doesn't specifically cite trademark as the law being applied, but it's the only one that makes sense. That means that the test in question is whether or not anyone is going to confuse this artwork as being created by or endorsed by HBO. And if you believe the answer to that question is "yes," then I'm surprised you're able to put your pants on in the morning. The whole thing seems to be confusing, because even though the DMCA doesn't apply to trademark law, Redbubble is clearly treating it as a DMCA takedown -- where it just replaced the normal "copyright" terms with "IP/Publicity Rights" -- and even uses its DMCA email address for any "counternotice." And the "counternotice" process is identical to a DMCA counternotice process, which requires the family to accept jurisdiction in California (remember, they're in the UK) if they counter the claim.

This is ridiculous on many levels, but once again highlights how the power of copyright to be a tool for censorship grows and expands and swallows other legal doctrines in the same neighborhood.

You can sense Wilcox's frustration in his comments.

"My first reaction to the letter was 'FFS.' HBO should get a life or stick something where the sun doesn't shine," Wilcox said.

"On further investigation, it appears HBO are doing this all over the place regarding this phrase. It seems to have upset a lot of people on Etsy and elsewhere who have had the same or similar letter."

This is the problem when large entities and their legal departments use the DMCA (or a quasi-DMCA-like) process like a shotgun, spraying censorious buckshot at many targets, only some of which might be truly infringing. This lack of legal nuance manages to catch innocent content producers in the crossfire -- in this case an autistic teenager who painted a picture. One wonders how the more virtuous heroes from the show would react.

Filed Under: censorship, copyright, dmca, game of thrones, takedown, trademark, winter is coming
Companies: hbo, redbubble

Every Website Needs To Re-register With The Copyright Office, Who Can't Build A Functioning System

from the are-you-serious? dept

As we mentioned last month, the Copyright Office -- despite being warned this was a bad idea -- has decided to implement a brand new system for websites to register DMCA agents, and has done so in a way that will undoubtedly fuck over many websites. It's already ridiculous enough that in order to be fully protected under the DMCA's safe harbor rules (that say you're not liable if someone posts infringing material to your website), you need to register a designated "DMCA agent" with the Copyright Office. The idea behind this is that by registering an agent, copyright holders will be able to look up who to send a takedown notice to. And, sure, that makes sense, but remember that this is the same Copyright Office that supports not requiring copyright holders to register their works, meaning that there may not be any legitimate way to contact copyright holders back.

The reason for the new system is that the old system was just ridiculous -- on that everyone can agree. You had to fill out a paper form, sign it, and send it in. The Copyright Office has been way behind on digitizing everything, so moving to a web based system is a good thing. Also, the old system required payment of over $100, while the new one is just $6. That's all good. The problem is twofold: first, the Copyright Office has said that it is throwing out all the old registrations, and if you want to retain your safe harbors, you need to re-register. There's a grace period through the end of next year, but plenty of sites who don't follow the Copyright Office's every move are going to miss this, and will no longer have an officially registered agent with the Copyright Office (it's possible that, should this issue go to court, a platform could reasonably argue that it still did meet the statutory requirements in the original registration, but why force site owners through that hoop in the first place). The second problem, is that this new system will toss out records every three years, so if you forget to renew, you once again can lose your legal safe harbors. This puts tons of websites at serious risk, removing key protections and opening them up to lawsuits from copyright trolls.

Either way, the Copyright Office opened the doors on the new system yesterday, and so I went ahead and re-registered Techdirt. And, let's just say, the Copyright Office has a reputation for being technically clueless, and boy, does it live up to that reputation with its new system -- though, to be fair, as the Copyright Office's General Counsel reminded me on Twitter, it's actually the Library of Congress that built the system. First off, to register a new agent, you need to first register with the Copyright Office's system. As Eric Goldman points out, the system is not designed for individuals or sole proprietorships, even though those people should be able to get DMCA safe harbor protections as well. Specifically, to register, it requires an organization name and a "second contact" name and information. I'm not sure what individuals should do, other than maybe make something up -- though, before you even get started, the system pops up a warning suggesting that you may face criminal charges under the CFAA if you do anything wrong (while it means if you try to hack the system, the wording may confuse many people not familiar with the law). Nice touch.

Oh, and then there's the password system. Like many people, I use a password manager, which also will generate strong passwords for you. I went through the process of filling out my info, and generated a strong password... and I got back an error message. It seems that the Copyright Office has taken what used to be considered best practices, and then took it to an insane extreme: First of all, the US government, in the form of NIST, recently released new guidelines for password policies for any US government websites. And the Copyright Office ignores them, because whoever designed the new DMCA system seems to not give a shit and not be even remotely aware of good security practices these days. Here's what the new rules say:

No composition rules. What this means is, no more rules that force you to use particular characters or combinations, like those daunting conditions on some password reset pages that say, “Your password must contain one lowercase letter, one uppercase letter, one number, four symbols but not &%#@_, and the surname of at least one astronaut.”

Let people choose freely, and encourage longer phrases instead of hard-to-remember passwords or illusory complexity such as pA55w+rd.

So, yeah, nice job Copyright Office for ignoring what you're supposed to do. Second, even if those rules did make sense, by lumping together all of them, and then adding the absolutely ridiculous and bad security practice of saying "must not have any repeated letters, numbers, or special characters," you actually reduce randomness and make passwords less secure. This is just bad security.

To deal with this rule, I generated a much longer password, and then manually went through and removed any repeated letters, numbers or special characters, and made sure that all of the other rules were met. They were. I hit submit. The system rejected it, and gave me the exact same error message. I tried again. Same problem. I kept trying things for about 20 minutes until I figured out what the problem was. You see above, where it says "and special character "!@#$%^&*()""? Well, in my first attempt at a password I had two special characters: ? and >. I incorrectly assumed that when they say "special character" they mean any special character on the keyboard, and not just those limited to the ones above the number line on your keyboard. Once I realized that might be the issue, I still had a problem. And that's because my new password had " as a special character. I incorrectly assumed that was okay because it's in that list above, right? Except, no, it's not. It's just put around those symbols for no reason at all except to fool people. It would be nice if the error message actually told you that you could only use those characters and that the " wasn't included. Would have saved me a lot of time.

Once I finally finished that, the system sent me a confirmation/validation email (good), which I used to confirm my email and log into the system... only to discover that everything I had just done... was not actually registering a DMCA agent. It was just to register your account to use the Copyright Office's DMCA system. So I had to then go and fill out another form to register our DMCA agent (and I won't even get into the fact that once you've activated your account, the message telling you to "click here" to login to designate an agent makes it so that it's not at all where to actually click -- great design guys!).

Finally, once I'm all registered, and despite the fact that I'm very clearly registered in the United States, the system says I'm in Canada. Because, apparently, the genius IT staff thinks that the "CA", which everywhere else means California, means Canada in their own system. Because whatever, nothing matters. So, yes, I eventually paid my $6 and got registered, but lots of people won't and lots of sites are now going to expose themselves to bogus lawsuits. And for those who do get through this process, you may end up in Canada. So anyway, off we go to this new era, in which websites are much more at risk of losing their safe harbor protections, and to make it more fun, the system you need to use to register yourself is buggy as hell with a bunch of bad design practices. It's almost as if they want websites to lose their safe harbors. Considering that the key role of the Copyright Office is to register stuff (the boss of the office is literally called "The Register"), it seems fairly ridiculous that they make it so difficult to register DMCA agents, and then force renewal every three years (while at the same time insisting that any renewal requirement for copyright holders would go against the natural order of things and bring famine and pestilence upon the land).

Filed Under: copyright office, dmca, dmca 512, dmca agent, library of congress, nist, passwords, safe harbors

Convicted Felon Ask Google To Delist Multiple Government Websites Because His Name Is Protected By 'Common Law Trademark'

from the 'add-it-to-my-fuckups-tab' dept

You don't often see the FBI's website targeted by a DMCA takedown notice, but when you do, you can be sure there's someone with a criminal record behind it. The last time we saw this happening, it was convicted fraudster Sean Gjerde, who thought he could perform his own reputation management by copy-pasting the FBI's press release onto his own website as part of a "book" he was "writing," and then begin issuing bogus takedown notices targeting content he didn't create. And he would have gotten away with it, too, if not for all the reasons he was NEVER GOING TO GET AWAY WITH IT.

Enter Anthony Lewis Jerdine, someone with a bit of reputation to clean up. Over the past decade, Jerdine has been imprisoned for bank fraud, made the US Marshals fugitive list, been sanctioned for unauthorized practice of law, been called a vexatious litigant by the Ohio court system, and, lest we forget, formed a trust in his own name.

There are many reasons to form a trust. Jerdine's reason -- an apparent SEO gambit -- is none of them. Jerdine, like many people who don't understand search engines, the internet, intellectual property law, or the Streisand effect, seems to believe if he shouts "TRADEMARK and/or COPYRIGHT" loudly enough, magical things will happen.

Here's the text of his DMCA takedown request, which compares favorably to the word salad periodically passed around Facebook as a supposed way for users to "reclaim" their copyrights from Big Blue.

Copyright of trade-name/trademark ANTHONY LEWIS JERFIBE TRUST including any and all derivatives and variations in the spelling, i.e. NOT limited to all capitalized names: ANTHONY LEWIS JERDINE TRUST, JERDINE, ALJ, ANTHONY JERDINE, JERDINE ANTHONY, ANTHONY L. JERDINE, AJ JERDINE, ALJ JERDINE, ANTHONY LEWIS JERDINE, or any derivatives thereof are under Copyright 1989. Said common-law trade-name/trademark, ANTHONY LEWIS JERDINE TRUST

That's the "description" of the "work" Jerdine feels Google should delist, somehow misconstruing his granted trust (obtained April 2016) to be an IP shelter for his tarnished name and any variation of it that might appear on sites where his criminal misdeeds have been detailed.

You might be able to copyright/trademark a name, but you can't stop people from using it when writing about you. McDonald's is a trademarked name, but anyone can write about McDonald's without stepping on its IP protections. The same goes for Jerdine's name, attached or unattached to his trust.

Because there's no requirement that users understand the laws they're invoking when filing takedown requests, Jerdine is asking Google to go ahead and delist ENTIRE websites simply because unfavorable things about him appear somewhere in their pages. In addition to demanding Google remove the FBI's entire website from its listings, Jerdine also wants a large number of public records sites kicked (entirely) to the search results curb.

https://www.freecourtdockets.com/
https://www.hbcumoney.com/
https://www.usmarshals.gov/
https://www.justice.gov/
https://www.dln.com/
https://www.bustedmugshots.com/
https://www.plainsite.org/
https://www.yumpu.com/
https://www.static1.1.sqspcdn.com/
https://www.docketindex.com/
https://www.soldierx.com/
https://www.uscourts.gov/
https://www.sconet.state.oh.us/
https://www.gpo.gov/
https://www.intelius.com/
https://www.truthfinder.com/
https://www.beenverified.com/
https://www.courtlistener.com/
https://www.casetext.com/
https://www.cleveland.com/
https://www.ohio.gov/
https://www.mortgagefraudblog.com/
https://www.law.justia.com/
https://www.topix.com/
https://fbi.gov/
https://www.ffiec.gov/

Jerdine is so concerned about the "misuse" of his name he can't even be bothered to target the specific URLs containing information about him. Not that it matters, Google hasn't delisted anything and Jerdine's reputation, while under new mismanagement, hasn't really gained any ground.

Filed Under: anthony lewis jerdine, copyright, delisting, dmca, fbi, search, trademark
Companies: google

Burlington Police Insist Someone Is Pretending To Abuse Copyright Law To Censor News Stories About Arrests

from the copyright-as-censorship dept

Last week, we wrote about some bizarre DMCA claims made by a guy named "Mike Ferrell" who claimed to represent the Burlington, Massachusetts Police Department, demanding that Google remove a bunch of stories because it violated the copyright the police department held on certain mugshots. We pointed out how crazy this was -- and also questioned whether or not "Ferrell" really represented the police department, because the language used in the takedown was a word salad of nothingness. In case you didn't remember:

Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us.

Mike Kent, the Chief of Police in Burlington reached out to us over the weekend to let us know that whoever sent the notices, it was not his department. He says they have no one working for them by the name of Mike Ferrell, and that the Burlington PD "has no issues whatsoever with these mugshots being used."

So... that leaves open the question of just who is impersonating the Burlington Police Department, and filing completely bogus DMCA notices in an attempt to censor news stories. It would seem that the most obvious options are those who were featured in those stories about arrests in Burlington. The very first notice that Ferrell sent, focused on stories about a particular prostitution sting, and named the nine men who were arrested, along with mugshots. It would seem that perhaps one (or more!) of those nine men would have pretty strong incentives to seek to have those stories deleted from Google.

Either way, we've been pointing out for years that copyright is an easy tool for censorship -- and here's yet another example. If you want something censored, just try to work out a copyright conneciton of some sort. In this case, it appears to have failed, but mostly because whoever filed it wasn't very good at pretending to work for the police.

Filed Under: burlington, censorship, copyright, dmca, massachusetts, mike ferrell, police

Updated! Massachusetts Police Dept. Files DMCA Takedowns On News Stories Using Mugshots Taken By Police

from the copyright-as-censorship dept

Update: We've written up a followup to this post, noting that the Chief of Police in Burlington insists that this was not done by them, and they have no problem with the press using these images. It would appear that someone else is abusing copyright law to try to block these stories -- and since the stories are about people being arrested, it's not hard to put together a list of people with motives to abuse copyright law in this manner. Please read the follow up post, before reading this original post below.

Here we are with yet another example of copyright as censorship. This one comes from the Shooting the Messenger blog, which dug up a fascinating story of how the Burlington, Massachusetts Police Department appears to be abusing copyright law to try to censor articles written about people they've arrested. Specifically, a representative from the police department has filed a bunch of DMCA notices with Google, targeting around 30 news stories, claiming the Police Department holds the copyright on the mugshots used in those stories. You can see one of the notices over at the Lumen Database, and you'll quickly notice that it's not like they're targeting fly-by-night websites, but all sorts of big name press outfits, including CBS, the Boston Herald and the Denver Post. The explanation given is pretty silly too in that it's barely comprehensible:

Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us.

Now, as we've discussed in the past, works of the federal government are simply not subject to copyright law. When it moves down to the states, it's either not entirely clear or subject to specific state laws. And in Massachusetts, the rule is that "records created by governments are not copyrighted and are available for public use." Separately, in Massachusetts, it's been determined that mugshots are public records, meaning that the police department has even less control here. And of course, even if these images were subject to copyright protections, their use in reporting would clearly be fair use.

Assuming that Mike Ferrell actually represents the Burlington Police Department, it appears that he and the police department are flagrantly violating the law in an attempt to censor news stories in the public interest. If he doesn't represent the Burlington Police Department, he's also misrepresenting himself, and potentially committing perjury, as an official DMCA notice requires stating, under the penalty of perjury, that you're authorized on behalf of the copyright holder.

No matter what... something not good is happening here, and it's yet another in an increasingly long list of examples of censorship by copyright.

Filed Under: burlington, censorship, copyright, dmca, massachusetts, mike ferrell, mugshots, public records

Adobe Asked Google To Censor Techdirt's Story On How Adobe's DRM Got Cracked

from the oh-really-now? dept

Another day, another example of copyright being a tool for censorship. MarkMonitor is one of the largest companies out there in the "IP protection" business -- and they also have a decently long history of filing bogus DMCA notices. And in one of its recent ones... they targeted a Techdirt news story. You see, three years ago, our own Tim Cushing wrote a little story about how Adobe launched its Creative Cloud subscription offering and had the DRM on it cracked within 24 hours. It was a fun (yet all too predictable) story.

And apparently Adobe/MarkMonitor would like it to disappear from the web. With copyright. Here's the actual DMCA notice filed by MarkMonitor on behalf of Adobe: Google, thankfully, has a team who reviews these things and rejected the demand. Of course, Adobe/MarkMonitor isn't really trying to censor a story that makes fun of Adobe. That's just collateral damage for the shitty job they do in trying to "protect copyright" by running automated scans. Who knows what actually set this one off, but likely some sort of combination of "creative cloud" and "cracked" -- and then (unlike Google, who actually bothers to review this stuff), MarkMonitor just sent it off without any actual human review.

So, yes, any "censorship" that came out of this would likely have been accidental, but just because censorship is accidental, it doesn't mean that it's inconsequential. The fact that companies that hire MarkMonitor have been rushing around demanding more automated takedown systems, and ridiculous notions like "notice and staydown" that would have created even more harm should be a warning as to why those ideas are a dangerous path.

Oh, and coincidentally, just as this was happening, MarkMonitor had a PR person reach out to see if an exec could speak to me on an unrelated (and uninteresting) story. I've asked them for a comment on their use of copyright to try to censor one of our stories instead. If I hear back, I'll add an update here... Update: And... here's the response from MarkMonitor:

We would like to assure you that MarkMonitor in no way condones censorship, nor does it intentionally take any action that would result in same. Our actions focus on enforcing brand infringements on behalf of our clients and acting in their best interests. In this case, the site in question came into our result set erroneously but the process we have with the search engines ensured that it was not taken down and is still live now.

I like how they claim that it's MarkMonitor's process that stopped the site from being blocked, rather than Google staffers looking over MarkMonitor's bogus takedown notice and saying "nah."

Filed Under: censorship, copyright, dmca, takedowns
Companies: adobe, markmonitor

Copyright Office Fucks Over Thousands Of Sites With Plans To Remove Their DMCA Safe Harbors

from the so-dumb dept

If you run any kind of website it's super important that you file with the Copyright Office to officially register a DMCA agent. This is a key part of the DMCA. If you want to make use of the DMCA's safe harbors -- which create a clear safe harbor for websites to avoid liability of infringing material posted by users -- then you have to first register with the Copyright Office. Larger corporate sites already know this, but many, many smaller sites do not. This is why for years we've posted messages reminding anyone who has a blog to just go and register with the Copyright Office to get basic DMCA protections (especially after a copyright troll went after some smaller blogs who had not done so).

A few months back, we noted, with alarm, that the Copyright Office was considering a plan to revamp how it handled DMCA registrations, which had some good -- mainly making the registration process cheaper -- but a really horrific idea of requiring sites to re-register every three years or lose their safe harbor protections. Despite many people warning the Copyright Office how this would be a disaster, on Monday the Office announced it was going ahead with the plan anyway, not even acknowledging that thousands of sites are likely to get fucked over by this move:

The United States Copyright Office has completed development of a new electronic system to designate and search for agents to receive notifications of claimed infringement, as required under the Digital Millennium Copyright Act (DMCA). Accordingly, the Office is publishing a final rule in the Federal Register tomorrow to implement that system, replacing an interim rule that the Office had adopted after the DMCA’s enactment. A prepublication version of the rule is available for public inspection here. The rule is effective on December 1, 2016, the date that the new online registration system and directory will be launched. In the meantime, users can begin to acquaint themselves with the new system by watching the video tutorials available here. Any service provider that has previously designated an agent with the Office will have until December 31, 2017, to submit a new designation electronically through the new online registration system.

Got that? Even if you followed the law and registered before, if you don't re-register (and pay another fee), then you will be kicked off the list of registered DMCA agents, meaning that you will lose your DMCA safe harbors. Basically, the Copyright Office is announcing that it is kicking EVERY SINGLE site that registered for DMCA safe harbor protection OFF THE SAFE HARBOR LIST.. That's horrendous. You have until the end of 2017, but really, how many sites (especially smaller sites or one person blogs) who don't follow copyright law are going to realize they need to do this? This is a recipe for disaster, and is basically the Copyright Office giving a giant middle finger to the DMCA's safe harbors for the sites that need them the most: smaller blogs and forum sites.

The Copyright Office's stated reason for doing this is nonsensical. It complains about outdated information in its database:

Since the DMCA’s enactment in 1998, online service providers have designated agents with the Copyright Office via paper filings, and the Office has made scanned copies of these filings available to the public by posting them on the Office’s website. Although the DMCA requires service providers to update their designations with the Office as information changes, an examination of a large sample of existing designations found that 22 percent were for defunct service providers, while approximately 65 percent of nondefunct service providers’ designations had inaccurate information (when compared to the information provided by service providers on their own websites).

The correct way to deal with this is to create a campaign to encourage sites to update their info -- not to kick everyone off. This is the goddamn Copyright Office, whose whole job is about "registering" information about people. Does the Copyright Office threaten to dump someone's copyright if a copyright holder's information is out of date? Of course not. That would be ridiculous. But it's now going to do that to any website that doesn't remember to constantly re-register a DMCA agent. This is a recipe for disaster, and for no good reason at all. And the idea that false or outdated info is a problem doesn't make much sense either. If a site has incorrect info, then they risk missing DMCA takedown notifications, meaning that they already face problems in not keeping their info up to date. The "solution" is not to make life worse for lots of other sites.

The final rule insists that this is no big deal because outdated info is "functionally equivalent to not designating an agent." However, as Eric Goldman points out, that's a total non sequitur. While it's true that those with outdated info may not have an official registration any more, that's no excuse for kicking off all those sites that do have valid registration. Those sites are fucked, for no reason other than the Copyright Office decided it has the right and power to just dump the entire list as of December 1.

As Goldman notes in his write-up of this clusterfuck, there's a simple solution here that the Copyright Office could have done, but didn't:

And when the Copyright Office disingenuously says the renewal requirement “should in many cases actually assist service providers in retaining their safe harbor, rather than serving to deprive them of it,” it mockably conflates its ability to communicate helpful information to registrants with draconian substantive policy effects. Here’s an alternative: send out the reminder notices but don’t make the consequences of non-renewal COMPLETE FORFEITURE OF THE DMCA SAFE HARBORS. Similarly, the analogies to other recurring obligations, like business licenses, ignore (1) the frequently less draconian consequences of non-compliance, and (2) the reality that many of these recurring obligations are nevertheless frequently mismanaged by both big and small companies.

Goldman also notes another horrifying part of the plan. The Copyright Office -- ostensibly to "help" those sites who forget to renew their DMCA agent - will list those sites on a public website of "lapsed" safe harbor registrants. Except, it's likely that instead of "helping" those sites, it will actually just be presenting a target list for copyright trolls to go searching for any infringing material on any site with a lapsed safe harbor registration.

There are questions about what can be done here. It's possible with new management coming to the Copyright Office that it may reverse this move, but that seems unlikely. It's quite likely, however, that there will be some lawsuit over this, especially as the Copyright Office is single-handedly removing protections for a whole bunch of sites. Another option is that Congress could get involved, but that would likely create an even bigger mess (Congress touching copyright law -- especially anything to do with the DMCA's safe harbors -- is not likely to end well).

This just seems like yet another example (in a ridiculously long list) of how screwed up the Copyright Office is these days.

Filed Under: 512 safe harbors, copyright, copyright office, dmca, dmca 512, dmca registration, safe harbor

My Talk At Wikimedia: Copyright Impacts Everything

from the it-does dept

Last week, I mentioned that I was giving a talk at the Wikimedia Foundation about copyright. It was a fun time, and the video from the talk is now online. Unfortunately, the audio and the video are... not entirely great. I'd complain about the terrible microphone, but that sounds like a certain presidential candidate. The video is okay, but the colors are off, so my presentation looks a little weird. Either way, you should still be able to get the basics. There's an introduction from Jan Gerlach at the Wikimedia Foundation, talking about all the important policy work they do, then my talk that runs about half an hour, followed by a Q&A with the audience that runs another half hour or so. It was a fun time, with a really great group of folks, and the conversation continued on after the official session ended for quite a while. Check it out:

Filed Under: 1201, censorship, copyright, dmca, free speech, impact
Companies: wikimedia

Geofeedia, In Damage Control Mode, Issues Bogus DMCA Over Brochure Posted By Reporter

from the copyright-as-censorship dept

And it's time for yet another story of copyright being used for out and out censorship. Remember Geofeedia? That's the creepy company that was selling its services to law enforcement agencies and school districts promising to spy on social media feeds to let law enforcement/schools know when people are planning bad stuff. After a big ACLU investigative report, basically all the major social media companies cut ties with Geofeedia, claiming that it was violating their terms of service. I'd imagine that the various law enforcement agencies and school districts who paid tens of thousands of dollars for this data may be asking for their money back.

So what does Geofeedia do? Well, for starters, it abuses the DMCA to try to take down information. The Daily Dot's Dell Cameron had actually written about how the Denver police spent $30k on Geofeedia back in September, a few weeks before the ACLU report dropped (nice scoop and great timing). Cameron then followed up with a detailed story following the ACLU report as well, noting that there were still plenty of other Geofeedia competitors on the market. At the end of that post, Cameron included a brochure that Geofeedia had apparently sent to a police department last year. But you can't see it now, because (yup) Geofeedia issued a DMCA takedown to Scribd, the company that was hosting it. Cameron tweeted about this as well, (correctly!) wondering why Scribd would fold over such a bogus copyright takedown. Now, sure, Geofeedia likely has a copyright on its brochure. But this is clearly a case of fair use. It's posted for reporting purposes, not competitive ones, on a topic of interest. It's not harming the market for the copyright in the brochure (which has no market). This is just ridiculous, both on the part of Geofeedia, and on Scribd for caving.

And it's pointless too, because it just calls more attention to how ridiculous Geofeedia is. Of all the things it should be focusing on right now, trying to take down a sales brochure in an article should be pretty low on its priority list. And if the idea was to get Daily Dot and Cameron to stop reporting on the company, well, that's failed too. Cameron has a new article out about how Geofeedia's stalking system was marketed to public schools as well.

Filed Under: censorship, dmca, takedowns
Companies: daily dot, geofeedia

EFF Asks Court To Block The DOJ From Prosecuting Researcher For DMCA Violations

from the jumping-ahead-of-the-threat dept

A few more wrinkles have appeared in the EFF's attempted legal destruction of the DMCA's anti-circumvention clause. Back in July, the EFF -- along with researchers Bunny Huang and Matthew Green -- sued the government, challenging the constitutionality of Section 1201 of the DMCA. As it stands now, researchers are restricted by the limitations built into the anti-circumvention clause. The Library of Congress can grant exceptions, but these are only temporary, lasting three years and generally vanishing at the end of that term.

Projects and research efforts continue to be thwarted by this provision, opening up those who circumvent DRM and other protective measures to the possibility of prosecution. And their options when facing charges are severely limited. There is no "fair use" exception to Section 1201 of the DMCA -- something the EFF would like to see changed.

The threat of prosecution may be mostly existential, but it's still far from nonexistent. This is why the EFF has requested a preliminary injunction that would prevent the DOJ from trying to put its client in jail.

The Electronic Frontier Foundation (EFF) asked a court Thursday for an order that would prevent the government from prosecuting its client, security researcher Matthew Green, for publishing a book about making computer systems more secure.

[...]

But publishing the book, tentatively entitled Practical Cryptographic Engineering, could land Green in jail under an onerous and unconstitutional provision of copyright law. To identify security vulnerabilities in a device he has purchased, Green must work directly with copyrighted computer code, bypassing control measures meant to prevent the code from being accessed.

The injunction request [PDF] points out that -- in addition to the anti-circumvention clause being a form a prior restraint -- Green will be performing the sort of actions the DOJ has prosecuted people for in the past.

A rigorous and effective audit of a computer system’s security requires that Dr. Green analyze the software controlling the system. Often, secure computer systems prevent access to their software code through technological protection measures (“TPMs”) such as encryption, username/password combinations, or physical memory restrictions preventing a user from accessing certain stored information. An adversary seeking to extract information about the software code or about the system’s user, or to install their own malicious software, would seek to bypass these measures in order to maximize their ability to locate and exploit vulnerabilities.

To identify security flaws, Dr. Green must do the same; indeed, finding and reporting on the vulnerability of these access controls is a critical part of auditing the security of the system. If he does not bypass access controls in a computer system, Dr. Green’s research is significantly limited. While he may be able to discover some vulnerabilities, he cannot determine with confidence whether devices are secure against an adversary willing to circumvent access controls.

The DOJ has already responded (sort of) to some of the claims raised in the EFF's injunction request. Its motion to dismiss [PDF] -- filed the same day as the EFF's injunction request -- claims the EFF and Matthew Green have no standing to challenge Section 1201 of the DMCA. Not only that, but they cannot provide any evidence prosecution is likely if Green continues with his research work.

Plaintiffs’ claims should be dismissed in their entirety. As an initial matter, Plaintiffs lack standing to raise their First Amendment claims on a pre-enforcement basis because the assertions in their Complaint fail to establish a credible threat of prosecution, under the DMCA’s criminal enforcement provision, for engaging in constitutionally-protected activity. None of the Plaintiffs claims to have been threatened with criminal prosecution. Plaintiffs’ conclusory assertion that others have been prosecuted under the DMCA in the past, for unidentified reasons, is insufficient to establish that Plaintiffs face a credible threat, as is their assertion that third parties might bring suit against them under a separate civil private right of action. Moreover, Plaintiffs fail plausibly to assert that the acts of circumvention and trafficking that they wish to undertake qualify as speech or expressive conduct that is entitled to First Amendment protection but prohibited by the DMCA.

The DOJ's arguments roughly align with the assertions made in its motion to dismiss in a lawsuit brought by security researchers and the ACLU against the much-hated CFAA. Once again, the DOJ recognizes that Green's book may be covered by the First Amendment, but actions taken during its compilation may not be.

In both cases, though, the statutes lend themselves to punishing security researchers for performing security research. While the DOJ may have no intention of prosecuting Green for his work, the anti-circumvention clause allows it to hold onto that option for as long as it wants to. The only way to guarantee this won't happen is to obtain an injunction, but chances are the court won't be as interested in staving off the theoretical as it will be in examining the First Amendment claims.

Filed Under: anti-circumvention, copyright, dmca, dmca 1201, doj, matthew green, research
Companies: eff