Our Comment On DMCA Takedowns: Let's Return To First Principles (And The First Amendment)

from the what's-working-and-what's-not dept

As mentioned earlier, today's the day to file comments with the Copyright Office over the DMCA's notice and takedown provisions. We've already discussed the recent set of studies showing that there are way too many bogus takedown notices that are clogging the system, creating real problems for small service providers and censoring free speech. We also wrote about the patently ridiculous filing by the legacy players in the music industry, who whined about how the public is enjoying more content than ever before (which, you know, is the stated purpose of copyright law), but they're upset that their business models are now obsolete. Finally, we wrote about the fantastic filing from Automattic, which gives many more real world examples of how the takedown process is abused (which the legacy industry pretends isn't true, because people don't file counternotices).

And now, here's our own comment, prepared by our excellent attorney (and sometimes guest poster), Cathy Gellis. In this filing, we decided to focus on taking a step back and going to first principles about the intent of copyright law itself, as well as the official and stated intent of the DMCA -- and to look at where things seem to be working and where they are not. As the filing notes, Congress made it clear with both the DMCA 512 safe harbors and the CDA Section 230 immunity provisions that it intends to support a vibrant internet where the public is free to share its views. And we see no reason why Congress should back away from that.

But, of course, there are problems, and the big one is widespread censorship enabled by the notice-and-takedown provision:

Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA's potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content, the DMCA conditions its protection. And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.

[....]

Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user's speech predicated on mere allegation. Mandatory injunctions are disfavored generally, and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful. To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.

We also highlight examples of innovative platforms and services driven out of business due to bogus DMCA claims, and how that appears to go against the purpose of copyright as well:

Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor. Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff. Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law. Copyright law exists solely to "promote the progress of science and the useful arts." Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology. Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user. We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.

And along those lines, our comment also points out that the legacy players have a fairly long history of crying wolf over problems that aren't really problems:

But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss. This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology. It is quite a leap to assume that every instance (or even most instances) of people consuming "pirated" copyrighted works is an instance they would otherwise have paid the creator. For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike. Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures. On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.

There's a lot more in the filing, including us questioning how merely linking to materials could or should be considered infringing, worries about how the DMCA can be abused to identify previously anonymous speakers and concerns about "repeat infringer" policy requirements that based on accusations rather than actual proof of infringement. You can read the whole thing at the link above or embedded below. And I'll just post the conclusion here as well:

Ultimately it is not possible to have a valid copyright law that in any part is inconsistent with the Progress Clause or First Amendment. To the extent that the DMCA protects intermediaries and with them the speech they foster it is consistent with both of these constitutional precepts and limitations. To the extent, however, that that DMCA suborns due process or otherwise compromises the First Amendment rights of either Internet users or service providers themselves to use and develop forums for information exchange on the Internet it is not. The statutory infirmities that have been leading to the latter outcome should therefore be corrected to make the DMCA’s protections on intermediaries and the speech they foster as durable as this important policy interest requires.

Filed Under: abuse, censorship, copyright, dmca, dmca 512, first amendment, free speech, notice and takedown

More Evidence That Tons Of DMCA Takedowns Are Bad News... And That People Are Afraid To Counternotice

from the it's-a-real-problem dept

Earlier this week, we wrote about a major new study that revealed that a ton of DMCA takedown notices are clearly faulty, and how that shows just how messed up the DMCA's notice-and-takedown provisions are in giving tremendous incentives to send notices with absolutely no punishment for filing bogus takedowns. The legacy music industry and its supporters keep claiming that the fact that there are so few counternotices is evidence that there's almost no abuse. In fact, in the legacy music industry filing we wrote about earlier today, they even had the gall to claim that the real abuse is in the counternotices themselves.

As more and more comment filings to the Copyright Office about the DMCA process are being released, there's increasing evidence that the legacy entertainment industry's claims are, simply, full of shit. The latest is the excellent comment filed by Automattic (the folks who make Wordpress), whose Wordpress.com offering hosts over 80 million websites. The company notes that even while hosting so much content, the majority of the time the company spends dealing with DMCA notices is... dealing with the bogus ones:

We put a great deal of resources toward processing takedown notices because we take our responsibilities under the DMCA seriously. We aim to respond to all inbound takedown notices within 48 hours, exceeding the law’s requirements. But a significant portion of the resources we put towards our DMCA program are aimed at combating the shortcomings of the notice and takedown system. For example, we spend significant effort reviewing and trying to weed out overbroad and abusive DMCA takedown notices, so that our users’ speech isn’t needlessly censored. This is a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer our customers.

As with the study we highlighted earlier this week, Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren't valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice. Then, another 10% of notices do meet the criteria to be an official notice, but are "clearly false or mistaken." And that's based on their own review of the notices. So, approximately 40% of all DMCA takedown notices the company receives are bogus. But, contrary to what the legacy industry folks and their shills are saying, Automattic notes that very few people file counternotices, out of a fear of being sued, and they're concerned about how this leads to censorship of perfectly legal speech.

Our statistics bear this out. As discussed below with respect to Subject No. 30, our statistics show that about 10% of the notices of claimed infringement we receive are otherwise valid but are clearly false or mistaken. But we receive many fewer counter notifications than that—only about one-half of one percent of the total number of notices we receive. We think this ratio shows that the low number of counter notifications is not the result of a correspondingly low number of false and mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred. The company notes that out of a batch of approximately 1,700 "valid" but bogus notices, only 113 counter notices were sent. Most people just don't bother out of fear of getting sued.

The company also highlights just how broken Section 512(f) is -- which is the section that is supposed to be used against bogus takedowns. But as we've written about in the past, it's basically a dead letter. There are almost no examples of 512(f) being used successfully against someone for sending a takedown... with the one exception being Automattic! As we wrote about, a few years ago, Automattic actually sued over egregiously bad DMCA notices and even won a case, but... it was by default, because the notice sender just ignored the lawsuit. In the other lawsuit, it could never actually find the plaintiff who sent the bogus censorious takedowns.

The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:

• A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
• A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
• A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
• An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
• A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.

As the company notes, each of these were clearly bogus, but since 512(f) is basically useless, it would be a complete waste of time to sue over them.

It's good to see companies sharing this kind of information, and it tracks closely with what the study from earlier this week said, which was based on a different corpus of data. So, yeah, when the legacy guys claim there's no abuse, they're simply full of shit.

Filed Under: abuse, censorship, copyright, counternotices, dmca, dmca 512, notice and takedown, safe harbors, wordpress
Companies: automattic

Ares Rights Gets EFF Lawyer Suspended From Twitter For Posting Mild Criticism

from the really-now? dept

We've written a few times now (including just recently) about the Spanish firm Ares Rights, whose sole purpose and job in this world appears to be to abuse any and all systems to take down content to try to hide content that either Ares Rights or its clients dislike. Mainly, the takedowns seem to focus on the interests of what appears to be its main client, the government of Ecuador, and its main tool is totally bogus DMCA notices, that too many companies follow without looking at the details.

However, Ares Rights also has a history of abusing takedowns to try to hide negative information about itself. And apparently, it will abuse other tools as well, such as Twitter's policy on shutting down accounts for abuse.

Daniel Nazer is a lawyer for EFF (focusing mostly on patent issues). Last week, he found out that his Twitter account had been shut down. Eventually, he was allowed back into the account, but was told he could only reopen the account if he agreed to delete a tweet. Which tweet? One in which he referenced Ares Rights and linked to an email exchange he'd had with the head of Ares Rights, Jon Palma. As background, Nazer explained how, back in 2014, he had tweeted negatively about Ares Rights, (accurately) calling what the company engages in as "copyfraud." Palma, apparently misunderstood Nazer's tweet, thinking that it was in support of Ares Rights, and emailed Daniel asking for business advice. Nazer posted the content of that email:

There are all sorts of levels of ridiculousness here, from Palma misunderstanding Nazer's tweet, to the fact that he filed an abuse complaint with Twitter, to Twitter's decision to disable Nazer's account. Someone from Twitter who saw me discussing this (on Twitter, naturally), reached out to point to Twitter's policy on private information posted on Twitter. This is the policy that's supposed to allow Twitter to shut down accounts of people doxxing someone, posting credit cards, harassing people, or posting revenge porn or whatnot. And it seems likely that the folks at Twitter would argue that Nazer's original screenshot of the email revealed Palma's "non-public" email address. If that's the case, even then it seems like a stretch. In context, it's clearly not for the sake of "doxxing" or harassing Palma, and it's unlikely that anyone actually looked at the original screenshot and decided to angrily email Palma.

Twitter claims that it "may consider the context and nature of the information posted," but it's hard to see how that was the case this time. In the end, things worked out, and Ares Rights, yet again, looks like a horrible, censorious, thin-skinned bully. But it's a bit disappointing that Twitter was willing to help the company along in that endeavor.

Filed Under: abuse, censorship, copyfraud, criticism, daniel nazer, dmca, jon palma, takedowns
Companies: ares rights, eff, twitter

'Hate Speech' Laws Are Just Another Way For Governments To Punish People They Don't Like

from the adding-more-tiers-to-the-'equitable'-justice-system dept

Two recent legislative efforts have been mounted to add police to the rolls of "disadvantaged" citizens in need of the additional shelter of "hate crime" laws. Hate crime laws are immediately problematic. They add additional punishments to criminal acts already punishable under existing laws. It's exactly the sort of thing justice isn't meant to be: vindictive. A murder is a murder, whether or not it was propelled by someone's underlying biases. A threat is a threat, no matter the threatener's personal views on race, marriage or human sexuality. Adding additional punishments solely because of a perceived motive serves no purpose other than to make those who support these laws feel like past racial/sexual wrongs are slowly being righted. The sinners of the present pay for the sins of the past sinners.

Adding police officers to this mix is not just stupid and completely antithetical to the underlying rationale of "hate crime" laws. It's also incredibly dangerous. Elizabeth Nolan Brown of Reason takes a look at how hate crime laws are being deployed in other countries. What she's found is that hate crime laws are like any other: they're abused most frequently by those in power and deployed inconsistently to further governments' aims.

The agency tasked with prosecuting hate speech in Kenya is called the National Cohesion and Integration Commission (NCIC); it was formed in 2008 to address ethnic conflicts in the nation. Onyando asserts that NCIC has ignored the bulk of complaints it has received and acts "more like an arm of the ruling coalition" than an independent agency, honing in only on those who speak out against the Jubilee Alliance, a coalition established in 2013 to support the candidacy of current President Uhuru Kenyatta and Deputy President William Ruto.

In this case, the government only cares about hate speech when it's on the receiving end of the hate. But this selective enforcement isn't limited to non-Western governments with a history of corruption. It's also happening in Europe.

Because "hate speech" is not narrowly defined, it's up to those in power to decide what qualifies as hate and what doesn't, and often that depends very much on both whom the speaker is and the sympathies of those in power. France has been accused of treating anti-Semitic sentiment with kid gloves while ignoring anti-Muslim expression. In the U.K., a British teenager was arrested after criticizing British military actions in Afghanistan.

So, selective enforcement should work out great when it's cops who are targeted. Threats against law enforcement officers will be treated as exceptional crimes, even though they're facially indistinguishable from threats made against non-uniformed individuals or groups.

The government in general is supportive of law enforcement, even when agencies' track records indicate this trust is unearned. The selective application of hate crime/hate speech laws will almost always favor this particular "protected" group. "Hate crime/speech" sentence enhancements will be piled on top of existing sentence enhancements pertaining to the assault of government employees. Fines and bail amounts will increase dramatically.

In San Francisco, for instance, leaders recently condemned graffiti saying "No More Chinese" as hate speech. The suspected spray painter was charged with 13 crimes, including felony vandalism with a felony hate crime enhancement. "We're exposing a man to somewhere around six years of jail time for spray painting," said public defender Yali Corea-Levy. And while bail for felony vandalism is normally set around $25,000, the suspect's bail awas set at $155,000. Similar outrage has not been summoned in San Fran for street art advocating the killing of hipsters or urging "techie scum" to die.

Our own government has already indicated a willingness to punish speech that "attacks" the home team. It won't take much to persuade it to use its power against those who take aim -- verbally or physically -- at law enforcement professionals. These new rights won't be equally granted. They will be used almost exclusively to ensure groups with considerable amounts of power and protection are given just a little more.

Filed Under: abuse, free speech, hate crimes, hate speech

Carl Malamud Asks YouTube To Institute Three Strikes Policy For Those Who Abuse Takedowns

from the a-potential-solution dept

We write frequently about those who abuse the DMCA either directly for the sake of censorship or, more commonly, because some are in such a rush to take down anything and everything that they don't bother (or care) to check to see if what they're taking down is actually infringing. The latter, while common, could potentially expose those issuing the takedowns to serious legal liability, though the courts are still figuring out to what extent.

Last week, we wrote about Boston public television station WGBH issuing a bogus takedown on some public domain (government created) video that Carl Malamud had uploaded to YouTube. That doesn't look like an automated takedown, but rather someone working for WGBH's legal team who just decided that anything with "American Experience" in a title must be infringing. Malamud has now published the letter that he sent YouTube, about the whole situation. It includes some more details concerning the insulting manner in which WGBH's legal team, Susan Kantrowitz and Eric Brass, handled the situation, including Brass telling Malamud that this wasn't a big deal because deleting this "particular film" was not that important.

Meanwhile, I finally reached the WGBH legal department. Susan L. Kantrowitz, General Counsel, wrote to me that “It is highly unusual for Amex to be in a title and not be one of our shows” and they would “address it on Monday.” Eric Brass, Corporate Counsel, wrote that “the take down request very well may have been an error, but given that it is late on a Friday afternoon in August, I may not be able to get back to you (or YouTube) until Monday.” He then wrote me back and indicated that while perhaps my YouTube account was important, this “particular film” was certainly not. I spoke to him on the phone and he repeated that no harm had been done, but and that after he completed his investigation he would,“follow up with something in writing that might be helpful for you if a question arises down the road about the take down.”

I want to stress that the timing of this takedown was not mine, it was instigated by WGBH and it was done deliberately as a formal legal action. Mr. Brass seemed quite peeved that I was upset, even though I was just minding my own business on the Internet when some hooligans from Boston came over and smacked me for no reason at all, then left for a weekend at the Cape.

The process of creating a copyright strike is not a casual one. WGBH had to go through several screens to identify the video, fill out their contact information, and checked numerous boxes indicating that they understood this was the beginning of a legal process, then signed a statement indicating that all statements were true and that they were in fact the true and correct owners of that film or portions of that film. In order to respond to that legal accusation, I had to go through a similar process of swearing under oath and accepting a court’s jurisdiction for my counter-claim.

Because of all of this, Malamud has suggested that YouTube institute a similar reverse three strikes policy for those who abuse the DMCA takedown process:

I believe that incorrectly posting a video that is under copyright is in fact worthy of a copyright strike. However, I think the opposite of that should be true. WGBH committed a copyright foul and should be prohibited from having the capability to take another user’s films down for a six-month period. If they commit 3 copyright fouls, their account should be revoked. WGBH personnel should be required to go to copyright school so that they fully understand their responsibilities under the law.

Given the blithe and uncaring attitude of WGBH legal staff, they should also be required to undergo copyright school. Their blase attitude was not impressive, and I can just imagine the reaction of WGBH if somebody had improperly taken down one of their media properties would not have been nearly so casual.

The idea of a reverse three strikes policy is not a new one. We first wrote about it back in 2008. Unfortunately, under the current wording of the DMCA, it would be very difficult to do it properly, but it does seem worth considering, considering just how frequency such a power is abused.

Filed Under: abuse, carl malamud, censorship, copyright, copyright school, dmca, takedowns, three strikes
Companies: wgbh, youtube

TPP Leaks Shows US Stands Firm That Companies Should Be Free To Abuse Patents & Copyrights

from the go-home-ustr,-you're-drunk dept

Last week, as you might have heard, negotiators on the Trans Pacific Partnership (TPP) agreement gathered in Maui to try to finalize the agreement. Many believed that negotiators would more or less finish things up in that meeting. Earlier reports had suggested that everyone was "weeks away" from finishing, and many had said that the only thing holding back a final agreement was fast track authority (officially "trade promotion authority") from the US government to make sure that the USTR could negotiate an agreement without further interference from Congress. And, as you'll recall, Congress voted in favor of fast track after a long fight.

However, a funny thing happened in Maui: they didn't reach a final agreement. And it doesn't sound like negotiators are really that close either -- leading many to wonder if the TPP may be running out of time.

Either way, the good folks over at KEI have now started releasing a leaked copy of the "intellectual property chapter" as it stood on May 11th (i.e., the latest draft prior to last week's meeting). The IP chapter had leaked in the past, but only an older version. KEI called out how the US's proposals in the TPP are horrible:

The May 11, 2015, text includes country positions, and reveals extensive disagreements among parties, as well as the isolation of the United States as the country that continues to be the most aggressive supporter of expanded intellectual property rights for drug companies, publishers and other companies.

The proposals contained in the TPP will harm consumers and in some cases block innovation. In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices. The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.

The widely reported dispute over the number of years of protection for biologic drug test data is only one of dozens of measures that significantly expand the power of big drug companies to charge high prices. Taken together these provisions will take the public down a road of more and more rationing of medicines, and less and less equality of access. It could have and still can be different. Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical R&D as a public good, an area where the United States has an admirable track record, such as the public funding of research at the NIH and other federal agencies. Many people reading the provisions released today will appreciate how misguided and wrong are the USTR’s values and negotiating objectives.

Looking through the documents, you can see some real ridiculous and aggressive positions by the US on intellectual property. In particular, the US seems to push back against any attempt by other negotiating countries to allow for the punishment of those who abuse patents or copyrights. Every time the issue comes up, many other countries are on board, but the US (and sometimes Japan) is against. The discussion below is about the parts of the IP chapter that KEI released yesterday. Just as I was finishing up this post, it released the other sections as well, but we'll save those for another post.

For example, there is one proposal put forth by Australia, arguing that countries should be able to "cancel, revoke or nullfy" a patent if "the patent is used in a manner determined to be anti-competitive, or abusive, in a judicial or administrative proceeding...." This actually seems like a pretty good idea. And, basically all of the countries agree... except for the US and Japan. Similarly, the US and Japan again appear to be in favor of patent trolling later in the document, opposing a provision that appears to allow countries to pass anti-trolling legislation: Those are on the patent side. Well, how about copyright? Here, even Japan supports a plan that would allow courts to order those who abuse takedown provisions to pay up against those they unfairly targeted. But the US opposes it: One other thing that caught my eye. Throughout the enforcement part, other countries repeatedly propose the use of the word "predominantly" when it comes to things like destroying equipment used in the creation of infringing works. That is, there are proposals like "judicial authorities shall have the authority to order the forfeiture or destruction of materials and implements that have been predominantly used in the creation of pirated goods or counterfeit trademark goods." The US repeatedly asks for the word "predominantly" to be removed from such sentences. In other words, while other countries recognize that you shouldn't just go around destroying computers that maybe incidentally were used to infringe, the US wants to retain such a right.

I'm sure more questions will be raised as people have more time to go through these documents, but for now, it appears that the US is still pushing for extremist copyright and patent policies and working hard to protect those who deliberately abuse such tools. It's fairly incredible how the USTR wants to deliberately support those who admittedly abuse those laws for anti-competitive purposes. Wouldn't you think the USTR should be encouraging blocking such abuses? I guess when your main advisors have a long history of abusing the laws, you don't think such abuse is that bad...

Filed Under: abuse, copyright, enforcement, ip chapter, leak, patents, tpp, us

Audits Of Asset Forfeiture Program Uncover Funds Used To Pay Student Loans, Property Used As Rent-Free Housing

from the stealing-our-way-to-justice! dept

Student loan debt is a serious problem here in the US as the price of higher education continues to outpace every standard economic yard stick. Lots of people think the government should step in to do something about it. While the administration makes helpful noises and tries to figure out how it can effectively tell Americans it's alright to rack up debt and walk away from it without actually, you know, encouraging Americans to get deeply in debt and walk away from it, one government employee is taking the bold steps the US government won't to eradicate student loan debt… specifically, his.

In a 2014 audit of the DA’s office representing Washington and Nowata counties [Oklahoma], the State Auditor’s Office found that $5,000 in forfeiture funds had been used to make payments on an assistant district attorney’s student loans.

That's a pretty egregious abuse of seized funds, and that's even if you find the whole asset forfeiture system mostly abuse-free when it comes to seizing property. Unbelievably, the DA's office defended the use of the public's money to pay off personal student loans.

The report said the district attorney maintained the expense was justified because most of the cases the assistant DA prosecuted were drug cases.

Which means what? That he was involved in several drug prosecutions and therefore entitled to a percentage of the take for his own personal use?

But no need to worry about the misspent $5,000. The DA's office has already "repaid" it using money seized a bit more lawfully via taxation.

After the issue came to light, the Oklahoma District Attorneys Council reimbursed the $5,000 using funds from its own student-loan program, the State Auditor’s report states.

So, everything's cool now. Except:

A 2009 audit of the District Attorney’s Office that represents Beaver, Cimarron, Harper and Texas counties found that a Beaver County assistant district attorney began living rent-free in a house obtained in a 2004 forfeiture. A judge had ordered the house sold at an auction, but the prosecutor lived there through 2009.

A bold new opportunity in real estate! Open to law enforcement members only!

There's so much more.

Schroedinger's seized pickup truck -- listed as "sold" at an auction -- remains in a sold/unsold state as neither the pickup, the paperwork nor the cash generated from the sale can be located. One district further perverted the perverse incentives by spending seized money before it had even been processed by the courts. In other instances, the money made its way onto the ledgers as "seized," but forfeiture cases were never filed. (This is particularly evil because without a filing, there's almost no way to challenge the seizure.)

The violations found by these audits are the sort of thing everyone should have expected when they allowed law enforcement to start seizing property without bringing criminal charges. Guns, vehicles and cash go missing. Proceeds from auctions are used to pay court costs and fund retirement parties. The program basically allows officers to steal from people they've already dehumanized as "drug traffickers." So, if someone's property goes missing and ends up as an off-the-books personal use vehicle/gun for some cop, no one's going to spend too much time worrying about the supposed "criminal" whose property has been seized. That's why the accountability is so lax and that's why the laws granting officers these powers need to be -- at minimum -- rewritten, if not taken off the books entirely.

And, as is always the case when asset forfeiture is attacked by legislators and regulators, there's a caricature of law enforcement on hand to offer homespun words of wisdom in defense of the legalized theft:

“I know for a fact we all try to work very hard to rid this devil’s candy (drugs) off of our state. And for someone to try and push us back — sheriff’s departments, police departments — that’s how we continue our fight, is to take that money and go forward,” Stradley said. “That will set us back many, many, many years.”

Will it set you back to 1990? And put you right in the middle of the crack epidemic? Or will it take you back to the 1920's, when marijuana was making jazz music tolerable and turning non-Caucasian males into rapists? How many years exactly will forcing Oklahoma law enforcement to accompany seizures with criminal charges set back these agencies? We all want to know. Even those of us who swore off the devil's candy years ago or never made it past anything harder than devil's food cake.

Filed Under: abuse, asset forfeiture, law enforcement, misuse, police, student loans

Canadian Court Ponders If A Disagreement On Twitter Constitutes Criminal Harassment

from the yikes dept

Free speech debates can often get tiresome online (for fairly obvious reasons), but it continues to astound me how people seem to think that there should be some sort of obvious exception to free speech rights for speech they don't like -- and that there won't be any unintended or dangerous consequences from simply outlawing the speech that they dislike. To me, that belief is dangerous, though obviously people should be allowed to make their arguments for it. Up in Canada -- where they don't have a First Amendment like we do here in the states -- there's a fascinating and very troubling case happening that shows the dangerous path that you go down when you start saying things like "offensive speech" should be illegal. The determination of "offensive" is incredibly subjective.

The case here appears to be over a Twitter spat between a few individuals, who clearly don't much like each other. That said, the spat appears to be not dissimilar from the many, many Twitter spats that happen each and every day. I'm pretty sure I've had Twitter debates as bad, if not worse, than what happened here, and the idea that such a debate could lead to possible criminal charges and jail time is fundamentally crazy.

And the deeper you dig into the details, the more and more bizarre the case itself gets.

There are three main players: Greg Elliott, who is facing the harassment charges. Then there's Stephanie Guthrie and Heather Reilly, who both brought the charges (with a third woman who is no longer involved). The story started in 2012 when someone else entirely, Bendilin Spurr, created a ridiculous distasteful game that allowed players to punch out a well-known woman (who I'm not even going to bother naming here, because, honestly, the mere mention of this person's name automatically makes comments divide into angry warring factions where reasoned debate disappears -- and I ask folks, before commenting, to think carefully about if it's worth going down that ridiculous rabbit hole -- on any side). Given that parenthetical notation I just had to make, not surprisingly, some people got quite upset about this very stupid game. Among the people angry about the game was Guthrie, who apparently went on Twitter and got people riled up about all of this:

Guthrie testified earlier at this trial, which has been on and off since January, that she asked the Twittersphere what to do.

“Should I sic the Internet on him?” she asked, and it was almost rhetorical, so swift and predictable was the resounding reply.

So she Tweeted “to prospective Sault Ste. Marie employers” and the local newspaper a link to a story about the game, asked Spurr “Do you punch women in the face IRL (in real life) or just on the Internet?” and asked her Twitter followers to retweet the whole shebang.

Some people supported Guthrie, others did not and responded angrily, including threats of bodily harm and all sorts of other crazy vitriol. Because internet. And immaturity. From the sound of it, many of the responses to Guthrie were, indeed, horrifying and disturbing.

Now that brings us to Greg Elliott. He knew Guthrie a bit (and not just online), and he disagreed with Guthrie's apparent plan to shame Spurr, and so he created what appears to have been something of a counter campaign to speak out against Guthrie's campaign.

Elliott’s contribution to this dialogue was to remark, mildly in the circumstances and fairly I thought, that the online attack led by Guthrie and friends upon Spurr “was every bit as vicious as the face-punch game,” and to point out that since Spurr had only 11 followers at the time, Guthrie’s efforts could backfire and draw even more attention to his wretched video game.

Elliott was also concerned about the real-world effects on a 24-year-old, or, as he wrote at the time, “A guy makes a face-punch game which offends you and you want him destroyed?”

Twitter debate then ensued, and it may have gone somewhat overboard in total volume of tweets, but everyone appears to agree that at no point did it descend into threats from Elliott to Guthrie. Just very vocal disagreement.

So let's pause here, for a second, and recount what happened:

1. Spurr, angry about certain person, creates ridiculous "game" allowing people to punch out said person. This seems incredibly immature, but is an expression of speech.
2. Guthrie, reasonably upset about this game, convenes people online to speak out against Spurr and to try to limit his chances for future employment. In other words, counter speech. Again, some might argue (as happened in point 3 below) that deciding to ruin someone's life because they created a stupid immature game is going a bit far, but this is still speech and counter speech.
3. Elliott challenges the soundness of such a broad attack on Spurr, noting that online vigilantism can go too far, and could backfire (giving silly immature game more attention). Counter speech to the counter speech that isn't defending the stupidity of the original game. They (and others) begin to debate on Twitter and that debate gets ugly and ridiculously childish at points but at no point resorts to any sort of threats.

At this point, all of this seems perfectly reasonable. People are disagreeing online, and speech and counter speech is happening. There are all sorts of things on the side that people can be concerned about (the idea to create such a stupid game in the first place, the power of mob justice to overreact, the insults, the more insults, etc.). But, again, this is all just your standard everyday internet argument.

And yet... somehow out of all of this: Guthrie (and others) end up charging Elliott with harassment. And then there's Reilly. Apparently in the midst of all this, she got engaged in the debate which ended up like so many debates on Twitter:

“@greg_a_elliott Please do me a favour & not reply to my posts. You don’t follow me- were you creeping the #TOpoli tag to find my tweet?” she tweeted on Aug. 9, 2012.

“.@ladysnarksalot how’d you feel if I was so delusional to ask you to not retweet me? You want “control” use your email, not Twitter. #TOpoli,” @greg_a_elliott replied, after suggesting that Reilly didn’t understand the point of Twitter.

[....]

The exchanges became increasingly hostile that month, with @greg_a_elliott tweeting that Reilly was a “hateful b–tch” and accusing her and other women he dubbed “#fascistfeminists” of ganging up on him, Reilly said.

He also posted tweets like “Heather’s fat ass gets fatter” with the #topoli hashtag but without mentioning her Twitter handle in the tweet (known as sub-tweeting), the court heard. Sub-tweeting meeting the other Twitter user mentioned won’t be automatically notified that he or she is being discussed.

It appears that most of Elliott's tweets are still online. Guthrie's and Reilly's are now private. You can see the start here, though there are many examples of friendly tweets between Elliott and Guthrie prior to this happening. Amazingly, with a little searching online, it is possible to find a spreadsheet cataloging all the tweets between the two of them. And, again, at times the insults start flying, but at no time does it appear to be threatening. Hell, it's hard to see how it's harassing. It's people expressing opinions (often angrily).

In that list you can see that the angry tweets start on July 7th of 2012 and then continue for a few months. Guthrie appears to ask Elliott to "stop contacting" her (and others asked him to do so as well) and even though they blocked him via Twitter's block feature, he sent a few more tweets their way, responding to some of the things they said. And, on the basis of that, they brought the harassment claims.

Elliott's lawyer has pointed out that it certainly appears that a bunch of Guthrie's friends were just as open to verbally sparring with Elliott -- and if his statements were somehow criminal harassment, then theirs should be as well.

A key point in all of this is that, apparently, the Canadian law in question requires the victims to "reasonably, in all the circumstances, to fear for their safety." That seems like a problematic standard for a variety of reasons, but it's very difficult to see how the bar was met here. As the original link above notes:

Yet Guthrie and Reilly didn’t behave as though they were remotely frightened or intimidated: They convened a meeting of friends to discuss how Elliott should be publicly shamed; they bombarded their followers with furious tweets and retweets about him (including a grotesque suggestion from someone pretending she was a 13-year-old that he was a pedophile); they could and did dish it out.

“They were not vulnerable,” Murphy said once. “They are very accomplished, politically savvy women. If they can’t handle being mentioned in the tail end of a political discussion (on Twitter), then they’re in the wrong business.”

As Elliott's lawyer noted, this is all "a high school spat, except it’s adults on the Internet," and the idea that a court should get involved and that there may be jail time at the end is flat out ridiculous.

It's stories like this that should freak people out about the belief that it's easy to ban "offensive" speech online. What one person takes offense to could be seen as totally reasonable by many others. In this case, it appears that there was a spat and everyone said and did some immature things, but to argue that one side is somehow guilty of a criminal offense over a Twitter spat is flat out crazy.

Filed Under: abuse, canada, free speech, greg elliott, harassment, heather reilly, internet fights, stephanie guthrie, tweets
Companies: twitter

Dancing Babies, The DMCA, Fair Use And Whether Companies Should Pay For Bogus Takedowns

from the still-in-court dept

Earlier this week the Ninth Circuit heard oral arguments in the appeal of Lenz v. Universal. This was the case where Stephanie Lenz sued Universal because Universal had sent YouTube a takedown notice demanding it delete the home movie she had posted of her toddler dancing, simply because music by Prince was audible in the background. It's a case whose resolution has been pending since 2007, despite the fact that it involves the interpretation of a fundamental part of the DMCA's operation.

The portion of the DMCA at issue in this case is Section 512 of the copyright statute, which the DMCA added in 1998 along with Section 1201. As with Section 1201, Section 512 reflects a certain naivete by Congress in thinking any part of the DMCA was a good idea, rather than the innovation-choking and speech- chilling mess it has turned out to be. But looking at the statutory language you can kind of see how Congress thought it was all going to work, what with the internal checks and balances they put into the DMCA to prevent it from being abused. Unfortunately, while even as intended there are some severe shortcomings to how this balance was conceptualized, what's worse is how it has not even been working as designed.

One such problem is with the content takedown system incorporated into Section 512. The point of Section 512 is to make it possible for intermediaries to host the rich universe of online content users depend on intermediaries to host. It does this by shifting the burden of having to police users' content for potential copyright infringement from these intermediaries to copyright owners, who are better positioned to do it. Without this shift more online speech would likely be chilled, either because the fear of being held liable for hosting users' infringing content would prompt intermediaries to over-censor legitimate content, or because the possibility of being held liable for user content would make being an Internet intermediary hosting it too crushingly high a risk to attempt at all.

Copyright owners often grumble about having the policing be their responsibility, but these complaints ignore the awesome power they get in return: by merely sending a takedown notice they are able, without any litigation or court order or third-party review, to cause online speech to be removed from the Internet. It is an awesome power, and it is one that Congress required them to use responsibly. That's why the DMCA includes Section 512(f), as a mechanism to hold wayward parties accountable when they wield this powered unjustifiably.

Unfortunately this is a section of the statute that has lost much of its bite. A 2004 decision by the Ninth Circuit, Rossi v. MPAA, read into the statute a certain degree of equivocation about what the "good faith" requirement of a takedown notice actually demanded. Nonetheless, the statute on its face still requires that a valid takedown notice include a statement that the party sending it has "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." (emphasis added)

The big question in this case is what the "or the law" part means in terms of making a takedown notice legitimate. No one is disputing that the notice that took down the dancing baby video was authorized by the agent in charge of administering the rights to Prince's music (at the hearing we learned that this is no longer Universal Music, but it was back then). But copyright is always contextual. In other words, just because someone uses (e.g., by posting to the Internet) a copyrighted work does not mean they have automatically infringed that work's copyright. There may well be circumstances enabling that use, like a license (including a statutory or compulsory license), or fair use.

Whether the "or the law" part included authorization pursuant to fair use is what a significant part of the hearing addressed. Universal said that it didn't, arguing that fair use was only an affirmative defense. By "affirmative defense" Universal meant that fair use was just something you could argue as a defense to being accused of copyright infringement in a lawsuit but not something that existed more integrally as part of copyright law itself. As such, Universal argued, it was not necessary to consider it when sending a takedown notice claiming that the use in question was not authorized.

EFF, arguing for Lenz, disagreed, however, arguing that the articulation of fair use in the statute, at 17 U.S.C. § 107, made fair use more than just a defense; rather, it is a statutory limitation constraining the scope of the copyright owner's exclusive rights and just as much a part of the law as the parts enumerating those rights. As a result, the EFF argued, a copyright owner sending a takedown notice always has to consider whether the rights the notice is seeking to vindicate are at all constrained by the sort of use being made of the work. If the copyright owner doesn't do that then it could be subject to the sanctions of 512(f).

Although one can never read the tea leaves from an oral argument, the judges did not seem to buy Universal's argument that fair use was just an affirmative defense. They seemed more persuaded by the EFF's position that it was enough a part of the copyright statute for at least some consideration of it to be required for a takedown notice to be valid. But then the court became concerned with the question of how much consideration was needed. After all, as Universal suggested (and EFF disagreed with), there may even be some question about whether the use of Prince's music in the dancing baby video was itself fair. Fair use is a very squishy thing always dependent on the particular context of a particular use of a copyrighted work. Often it takes massive amounts of litigation to determine whether a use was fair, so the judges spent a lot of time questioning both parties about what a copyright owner (or its agent), if the statute requires them to consider fair use, must actually do on that front in order to not run afoul of the law's requirements when sending takedown notices.

Universal argued that because it (and other similarly situated copyright holders) needed to send millions of takedown notices it would simply be too burdensome to have to consider fair use for each and every one of them. To this the EFF suggested that tools may be available to help triage the likely contenders needing closer analysis, but something else the EFF said I think drives the point home more aptly.

The DMCA also includes a "put back" process, at Section 512(g), so that Internet users' whose content has wrongfully been removed can have it replaced. Universal argued that this process should be enough to deal with any wrongful takedowns, as it allows for wrongfully removed content to be replaced. (Universal also argued that this "put back" notice was also necessary to give the copyright holder notice that fair use might be an issue to consider.) But if this were the case then why have a Section 512(f) in the statute at all? There is nothing in the statute that suggests that a "put back" notice needs to happen for Section 512(f) to be able to operate. Furthermore, although the record in this case was unfortunately poor as to what percentage of removed content was ever put back pursuant to 512(g) put back notices, as the EFF noted, even if it were a very small percentage of removed content, a small percentage of millions of instances suggests that quite a bit of non-infringing content is still getting removed.

Moreover, there is no reason to suspect that the content that has been restored in response to these put back notices represents the entire universe of wrongfully removed content. There is little basis to presume that everyone else who had their content removed simply shrugged it off as a fair cop. Because a put back notice can conspicuously put a user in the line of fire of a copyright owner many users might not have wanted to tempt the trouble. Also, as the EFF observed, the DMCA takedown system is fairly labyrinth and often needs the assistance of counsel to help navigate it. This form of support is likely not available to most, and even in the case of Ms. Lenz it did not readily result in her home video of her kid dancing being restored.

Ultimately Universal is arguing that this outcome is ok: despite this harm to legitimate speech, copyright owners should nonetheless be entitled to cause millions and millions of instances of user-generated content to disappear from the Internet with very little effort, inconvenience, or oversight on their part. But it's an argument that fails to recognize just what a privilege the takedown system represents. It is a huge shortcut, giving private parties the extraordinary power to be censors over Internet content without the trouble and expense of a lawsuit to first determine whether their rights have truly been infringed. With the DMCA copyright owners become judge, jury, and executioner over other people's speech all on their own, and when they decide to sentence content for disappearance they get to use the takedown notice as the gun to the head of the intermediary to force it do the deed.

Universal spent a lot of time arguing that the DMCA was intended to be this sort of shortcut in order to be a "rapid response" system to online infringements. But the "rapid response" the DMCA offers is that copyright owners don't first have to go to court. Nothing in statute suggests copyright owners are entitled to a response so rapid that they are excused from exercising the appropriate care a valid takedown notice requires – or that even a lawsuit would require. As Universal would have it, they get to be censors over other people's speech without any of the risk normally involved if they had to use the courts to vindicate their rights. Note that nothing in the DMCA precludes a copyright owner from suing an Internet user who has infringed its copyright. But with a lawsuit comes the risk that a copyright owner might have to pay the fees and costs of the defendant should their claims of infringement found unmeritorious (including because the targeted use was fair). According to Universal, however, copyright owners should face no similar consequence should the claims underpinning their takedown notices be similarly specious. Copyright owners should simply be able to cause content to be deleted at will, with no risk of any penalty to them for being wrong.

But that's not what the statute says. As was also argued at the hearing, Section 512(f) creates the penalty necessary to deter wrongful takedowns because without there being one, all the risk of the takedown system would be borne by those whose free speech rights (both to speak freely and to freely consume what others have said) are undermined by copyright owners' glib censorship. As the saying goes, with great power comes great responsibility, and it hardly misconstrues Congress's intent, or the express language of the statute, to demand copyright owners to carefully exercise that responsibility before letting their takedown notices fly, and to sanction them when they don't.

Filed Under: 512(f), abuse, copyright, dancing baby, dmca, fair use, stephanie lenz, takedowns
Companies: eff, universal music