Justice Department Threatening US Sports Blogs Because Commenters Linked To Streaming Content

from the justice-not-served dept

An anonymous Dallas Stars hockey fan alerts us to the quite worrisome news that the Justice Department seems to think it's a valuable use of their time to threaten blogs and community sites that they could be held liable if anyone in their comments posts a link to infringing material. You can see it in a "Welcome" post on the Defending Big D blog:

Streaming Links:

This is something I'll address in a separate post, but we can no longer allow links to be posted to online streams of the Dallas Stars games. While we have yet to be contacted, other SB Nation sites have been contacted by the Department of Justice. Because our site is 'allowing' these links to be posted, we can be held liable.

Now, this raises all sorts of questions. Why is the Justice Department threatening blogs like this? Was it really the Justice Department, or was it ICE (a part of Homeland Security)? What other sites have been contacted beyond SB Nation? What is the Justice Department saying to these sites and is it an accurate reflection of the law? And why don't SB Nation and other sites point out to the Justice Department that, under the DMCA safe harbors, there is a clear process for the removal of links to infringing content -- and it also provides safe harbors for the sites themselves?

My guess is that the Justice Department and ICE, via Operation In Our Sites, are trying to imply criminal copyright infringement here (otherwise, why else would the DOJ be involved?). But that's a much higher bar, and it's unlikely that a comment could be criminal copyright infringement. The link itself would have to be for profit, for starters. And while SB Nation or the site might make money, that's entirely separate from the action of the user. Either way, this is quite worrisome and seems like a massive step out of bounds by the Justice Department.

As the guy who submitted it wrote:

We fans want to watch our favorite hockey players play our favorite game. Since the NHL hasn't seemed to provide a convenient, reasonable means to watching games, "unauthorized" streaming exists. Why is the DOJ doing the NHL's dirty work? Some would argue that you can watch every NHL game on their streaming service, Center Ice. Wrong. You can't watch the team for the town you're in. You can watch everything BUT your local team. Since local teams are usually the teams that people want to watch, this renders Center Ice rather useless.

But that's the idea. They seem to think that if such things are useless due to government decree, then they can pretend that the world markets are not changing.

Filed Under: comment, copyright, ice, justice department, links, secondary liability
Companies: sb nation

Twitter Keeps Suspending Accounts Based On Highly Questionable DMCA Claims

from the come-on-twitter,-stand-up-for-your-users dept

Last year, we wrote about how Twitter was receiving a ton of DMCA takedown notices. That seemed pretty strange to us, because with such short messages, there's little that could be covered by copyright. For the most part, such notices seemed like an abuse of the DMCA, literally claiming that a link to a URL was infringing itself, which is a pretty big stretch. A link by itself hardly passes the inducement test. Twitter, as we noted a year and a half ago, unfortunately, appears to be giving too much credence to such notices -- especially in cases where the tweet is a link to a webpage which possibly links to content elsewhere. That's so far removed, arguing that Twitter is responsible in any way is just ridiculous.

Yet it appears that Twitter hasn't just kept up this practice, but has made it worse. There was a bit of a fuss among some popular hiphop blogs in the last few days as certain Twitter feeds connected to one such blog disappeared. That is, they didn't just take down the tweets in question, but flat out suspended the account. RapRadar, whose twitter feeds were impacted, was not at all pleased, posting this complaint on its website: If you can't read that, it says:

This lil blue bird keeps fuckin' with us! First you shut down our @RapRadar account cuz 50 and Em went "Psycho" and last night you wanna pull the plug on @RapRadarDotCom with no fair warning. Man, I thought it was gonna be smooth sailing like Chris Cross after a yellow nigga got verified. The kid @ElliottWilson is creepin' on 40K followers but you won't let my company breathe. This damn DMCA ain't nuthin' ta f' wit. For the record: No site has supported the consumption of music legally more than RapRadar.com. Yeah we've provided free streams from day one but no download links unless its a free release. We also link back to iTunes constantly. We play the game the right way and what do we get for it? Shit, I'm not opposed to a lil preferential treatment. Ha! Can we live?

So... at this point, it looks like a totally and completely ridiculous DMCA takedown claim. Let's connect the dots:

• DMCA notice goes to Twitter, complaining about a tweet with a link in it
• Rather than pointing out that a mere link is not infringing, Twitter suspends the account
• That link doesn't even link to infringing content. Instead it links to a blog page
• That blog page doesn't even link to infringing content. Instead, it links to official free releases, official streams... and iTunes for purchases.

Now, I recognize that Twitter is just playing the legal game here. If it receives a DMCA notice, it goes straight to takedown mode. Thanks to the way the DMCA safe harbors are written, it's tough not to obey a DMCA takedown notice, because otherwise you face legal liability if there is infringement. But it doesn't mean you have to take down the content. In bogus situations you can say so and refuse to take down the content (something that we've done in the past).

I reached out to Twitter to see if I could understand why they would suspend such accounts, and got a link to their DMCA policy, which states:

We respond to valid claims of alleged copyright infringement such as the unauthorized use of a copyrighted image as an account background or account avatar, or Tweets containing a link to allegedly infringing materials.

But that doesn't actually respond to the issue here. These were not links to infringing material. They were links to blog posts that linked to authorized material. Furthermore, Twitter told me that they provide those who are targeted with a takedown with "all info" from the claim including "who made it." This appears to be untrue. I've now seen a few of the takedown notices and they provide no such info, which makes this worse. Twitter users are forced to respond to questionable DMCA takedown claims on links to blog posts that aren't infringing, without even knowing who is issuing the takedown.

It seems like Twitter would have really strong reasons for refusing such takedowns. Twitter could easily point out that a link to a webpage is simply not infringing, thus they're not hosting any infringing content included in the DMCA notice. Instead, it doesn't just block that single tweet but suspends an entire account? That's ridiculous overkill... and exactly what whoever is issuing the takedown notice wants. Even worse, by not providing the information on who filed the takedown, the whole process is completely blind. It's censorship by DMCA takedown with Twitter helping out. That's really unfortunate for a company that has a history of standing up to legal bullies.

Filed Under: dmca, links, suspension

RealNetworks Destroying Dutch Webmaster's Life Because He Linked To A Reverse Engineered Alternative

from the seriously? dept

Via Slashdot, we get the story of a Dutch webmaster who is involved in a ridiculous lawsuit that RealNetworks (it still exists?) is putting him through. Apparently there's a bit of free software out there called Real Alternative which, not surprisingly, is an alternative player for Real Media files. RealNetworks hasn't been happy about this software for a while, even though it seems unlikely that many people still encode things in Real Media's format. Either way, the company was successful in scaring the main distribution source about a year ago and has since gone after others.

However, in this case, it seems pretty clear that they've gone way too far. They sued a Dutch webmaster, Hilbrand Edskes, not because he was hosting or distributing the software, but because he had a link to the software on a webpage he maintains that lists a variety of freeware programs. It's not hard to find all sorts of sites, including big names like CNET, that still distribute Real Alternative. Yet for whatever reason, it appears Real Networks chose to go after this guy for maintaining a list of freeware programs.

Making matters even more confusing and ridiculous, is that it appears that Edskes actually did remove the link when asked. Real claims he did not, but the company who seized his computers (after a judge ordered it, following a court filing from Real) admits that the links were actually removed right after he was told to remove them, and Edskes' hosting company also confirms, via its backups, that he removed the link. But Real still saw the link at a later date due to some DNS caching... so it's pushing ahead with the lawsuit. The article details how it's already cost Edskes €66,000 in legal fees, and Real is asking for about €210,000 in fines and for its own €75,000 legal fees.

Even if Real Alternative is infringing (a claim that I think is pretty questionable in its own right), it's pretty ridiculous to then sue someone just for linking to it, and to continue to sue him even after he shows that he removed the link in question. Real Networks was famous for having some nasty business practices and for forcing crapware on people, and it seems to be continuing that trend in the legal world as well.

Filed Under: copyright, links, real alternative, reverse engineering
Companies: realnetworks

UK Appeals Court Agrees That Clicking A Link And Opening A Website... Is Infringing

from the are-they-serious? dept

Late last year there was a ridiculous ruling against news aggregator Meltwater in the UK. Meltwater, like a number of other news aggregators, pulls together headlines from various online news stories, along with brief snippets of the articles, and links to those articles, helping people find news relevant to them. It's your classic news aggregator. Meltwater focused on an enterprise market, helping companies or PR people keep tabs on what was being said about them or about topics of interest. Pretty standard stuff. But the ruling said that just headlines could be covered by copyright, and thus Meltwater infringed by simply showing headlines and links. I didn't write about it at the time, on the assumption that this was just a clueless ruling that would hopefully be overturned on appeal... but no such luck. The Appeals Court has allowed the lower court ruling to stand, meaning that anyone doing news aggregation in the UK may have to start paying newspapers for the "privilege" of linking to them.

This is, of course, ridiculous. Almost everything in the ruling is ridiculous, frankly. Let's dig into a few of the points from the original ruling, as highlighted by the Independent (first link above):

* The headlines to the various articles reproduced in Meltwater News were capable of being literary works independently of the article to which they related;

Generally speaking, in the US, we don't consider headlines to have enough creative elements to be covered by copyright independent of the article. And that seems reasonable. Does anyone honestly believe that copyright is necessary to incentivize the creation of creative headlines? The whole point of a headline is to sell the story. There's plenty of incentive there. Putting copyright on headlines makes no sense at all.

* The extracts from the articles reproduced in Meltwater News with or without the headline to the article were capable of being a substantial part of the literary work consisting of the article as a whole;

Meltwater News tried to get us as a customer two years ago, and sent us some sample reports, so I'm actually quite familiar with their "snippets." They are clearly designed to get you to click through, and not at all designed to provide a "substantial" part of the literary work. Here's a screenshot from a report they sent us: Yeah. I'm sorry, but those "extracts" are hardly "substantial," and they clearly do not suffice as a replacement for the original.

* Accordingly each of the copies made by Meltwater News' end-users' computers in receiving the e-mail from Meltwater, opening it, and accessing the Meltwater website by clicking on the link to the article, and the copies of the article itself made when clicking on the link indicated by Meltwater News was, on the face of it, a breach of the publishers' copyright;

Read that again. Especially the last part. The copies of the article itself made when clicking a link were infringing. There's no way to respond to that other than to say that's insane. That means the entire web is infringing. Any time you open any web page, according to this ruling, you are likely infringing on the site's copyright.

* Legislation dealing with temporary copies, or fair dealing for copyright material, or Database Regulations did not allow such copying;

If so, the UK really needs to fix its copyright laws, because that's crazy.

* Thus, the end-user required a licence from NLA or the publisher in order lawfully to receive and use the Meltwater news service.

And, thus, the web dies in the UK. But now, suddenly, I'm tempted to send a bill to any UK newspaper that links to Techdirt going forward...

Filed Under: clicks, copyright, infringement, links, uk
Companies: meltwater

US Trying To Extradite UK TVShack Admin Over Questionable Copyright Charges?

from the copyright-gone-mad dept

In the latest example of US copyright interests gone mad, there are reports that there's an attempt to extradite the admin of TVShack from the UK to the US to face criminal copyright infringement charges. This is ridiculous on all sorts of levels. First, TVShack.net was one of the very first domains seized a year ago. TVShack did not host any content and was merely a linking site, which raised questions (as with other seizures) about whether or not it actually violated US copyright law. Also, TVShack has gone through a few different versions and (potentially) owners/admins. However, one of the admins, Richard O'Dwyer, a computer science student, was recently arrested. It's not clear if anyone even knows which instance of TVShack he's accused of running.

Where this becomes really troubling is that other, very similar sites have been found legal in the UK multiple times. Running a site that users use to put up links and which doesn't host any actual content, is not seen as illegal in the UK. So it seems particularly ridiculous that there's some sort of attempt to extradite the guy to the US to face charges here. As some have pointed out it appears to be "an attempt to make US federal laws applicable in the UK."

Unfortunately, the details of the extradition request are a bit muddled in all of the UK papers reporting on it. Lots of them are comparing the situation to the famous Gary McKinnon situation, but I think this is clearly different. This just seems blatantly vindictive for no good reason.

Filed Under: copyright, extradition, links, tvshack, uk, us

Is It Rude To Link To Someone Without First Asking Permission?

from the not-that-I've-ever-heard dept

Earlier this week, I wrote an analysis of some silly claims from Canadian IP lawyer James Gannon's sarcastic suggestion that copying money is just like copying content. Gannon stopped by in our comments... and oddly did not respond to a single point that I raised about his faulty analysis. Instead, he only commented to claim that it was somehow rude or discourteous of me to link to his piece and to discuss it without first asking for permission. I found this somewhat shocking. I've never heard that it's common courtesy to ask before you link to someone. Yet Gannon insisted that most people who link to him first ask his permission and he suggests, snidely, that his readership has higher "standards" in regards to how they view content.

Of course, when you combine this with Nina Paley's excellent post about how asking permission when none is needed is rude, it seems that we have a pretty serious disagreement here. Not surprisingly, I agree wholeheartedly with Nina and find Gannon's position both troubling and enlightening when it comes to his confused interpretation of intellectual property issues. He seems to think that a permission society is just fine. Those of us who actually create for a living know that this is not the case. It's a distraction and an annoyance when people feel the need to keep asking you for permission to do what they naturally have the right to do. Permission society is one that is less creative and less willing and able to create. Permission society is the exact opposite of what copyright law is supposed to create. It's not supposed to be a drag on creation. The whole point of things like fair use is that you don't have to ask for permission because it's inefficient to ask for permission in those cases. That he's suggesting that it's somehow discourteous not to ask for permission to do what the law clearly allows is really quite troubling.

In the meantime, has anyone actually ever heard that it's common courtesy to ask someone permission to link to them? I spend a lot of time online and I link to a lot of websites (over 38,000 posts last we checked...) and no one has ever suggested that I should have asked permission first.

Filed Under: james gannon, links, nina paley, permission

Italian Court Says Yahoo Is Liable For People Finding Infringing Movie Via Its Search

from the secondary-liability dept

Slashdot points us to the details of a recent ruling in Italy that found Yahoo contributory liable for its search pointing people to an unauthorized download of a film. The details of the case seem a bit more nuanced than the short summary. Google and Microsoft were also sued... but reasonably dismissed from the case, since their Italian divisions had nothing to do with their search engines. Yahoo, however, apparently does do some search work in Italy.

As for the reasoning behind the decision, it seems to focus on a stretch of an interpretation of the EU's E-Commerce Directive, which indicates that a "caching provider" has to block links to content once notified that it's infringing. While the coverage is a bit unclear, it sounds like this is more difficult than a US-style DMCA notice-and-takedown regime, in that it appears that upon notice that some content is infringing, Yahoo isn't supposed to just take down that particular link, but all links that can reach that content. In fact, the explanation notes that Yahoo can't even link to another (legal) website that contains links itself to infringing works. Think about that for a second. It goes beyond secondary liability to something entirely different. I'd call it "head in the sand" liability, where someone seems to hope that by telling search engines they can't link to sites that might link to infringing works, it will somehow make those works hard to find. The reality, of course, is that it's just going to frustrate consumers, because search engines now have incentive to take down all sorts of perfectly legitimate search results to avoid liability. Given this and the ruling that found Google execs criminally liable, one wonders why any search engine operates in Italy at all these days...

Filed Under: italy, liability, links, search, secondary liability
Companies: yahoo

Feds Really Do Seem To Think That Linking To Infringing Content Can Be A Jailable Offense

from the are-they-serious? dept

Last week we covered the somewhat surprising arrest of Brian McCarthy, the operator of Channelsurfing.net, on charges of criminal copyright infringement. As we noted at the time, this seemed like a pretty questionable charge. I could potentially see a civil charge against him using the court-created concept of "inducing" infringement (a concept that Congress rejected...), but there is no inducement standard in criminal infringement. It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard, and it's not clear that the feds have enough to make such a claim really stick. At the time, we didn't have the complaint, but the folks at DemandProgress have obtained a copy of the complaint, which we've also embedded below.

There doesn't seem to be anything there. In fact, the complaint against McCarthy seems to mostly be copied and pasted from the original affidavit used to seize Channelsurfing.net. As we pointed out at the time, that affidavit relies on the extremely questionable claim that merely linking to infringing content can represent criminal infringement. As Demand Progress notes, letting Homeland Security and the Justice Department claim that linking to or embedding content can be a criminal act should be horrifying to anyone who understands the very basics of how the internet works. Once again: they're not claiming that McCarthy made any copies. They're not claiming he distributed any copies.

Section 106 of the Copyright Act covers the six exclusive rights that copyright is supposed to provide. I can't see how McCarthy violated any of these. He did not reproduce the works. He did not prepare derivative works. He did not distribute the works. He did not perform the works. He did not display the works. At best, I'm guessing people who don't actually understand the technical issues will try to claim he displayed the works. But that's technically incorrect. No where on his server did he have or display any of these works. Instead, he pointed people to where the works were available. Some of his users may have seen displays of the works, but those were from their own browsers calling to entirely separate servers for those works.

So, as expected, the specific charges are incredibly questionable and seem to be based on a theory of copyright law that has been completely made up by Homeland Security and the Justice Department. That's kind of scary.

Homeland Security and the Justice Department clearly have gone way overboard here. Beyond the basic questions about the domain seizures (due process and First Amendment), now there are additional questions about them simply making up what they want copyright law to say, rather than what it actually does say. And when that leads to a conclusion that linking can be a jailable offense, it's time for them to seriously rethink their actions.

Filed Under: brian mccarthy, copyright, homeland security, links

Homeland Security Tries And Fails To Explain Why Seized Domains Are Different From Google

from the keep-trying dept

The Marketplace radio show from American Public Media spoke to Special Agent James Hayes from Homeland Security, who was apparently in charge of the "raids" (if you can call them that) that involved the seizing of domain names under the legally questionable theory that linking to infringing material is, by itself, criminal copyright infringement. I've yet to find any legal expert who seems to believe that the law actually says this anywhere.

In the interview, John Moe asked Agent Hayes a very simple question: given that these domains were all seized based solely on the fact that they link to infringing content hosted elsewhere, and all of the same content is also linked from Google, will the Feds seize Google's domain name? Well, more specifically, Moe asks if ICE could seize Google's domain name. Amusingly, right after being asked, Hayes conveniently gets cut off, but he does call back and the question is asked again. You can hear the whole thing here: However, once he gets back, he tries to tap dance around this issue. Hayes says "no" that ICE will not seize Google's domain name and that's because it's only targeting sites that "don't do due diligence" to make sure that the content they're linking to isn't infringing. There's a pretty serious problem with this claim in that it's wrong on both sides of the equation. First off, Google, as a search engine, does no due diligence to check that links only go to non-infringing content. Second, in at least some of the cases (specifically in the case of dajaz1), we know that it was actually Homeland Security and folks like Special Agent Hayes who "failed to do their due diligence," so the songs named in the ICE affidavit were, in fact, provided by the labels or representatives of the musicians. In other words, according to Special Agent Hayes' own criteria, Google is more of a criminal operation that Dajaz1.

Hayes then goes on to repeat the long-debunked talking points of the industry -- insisting that anyone watching a PPV event without paying represents lost revenue. Apparently all the studies that say this isn't the case don't matter, so long as someone who directly financially benefits from Hayes' actions tells him otherwise. On top of that Hayes claims that this leads to lost tax revenue and jobs. Of course, this has also been debunked, since the money "not spent" on these events doesn't disappear, but is still spent in the market and, quite conceivably, ends up going to fund more jobs and industries with higher tax rates.

Also amusing is that Hayes uses this massively tenuous link to "tax revenue" to answer the question so many people have been asking: what the hell does Immigration and Customs have to do with a foreign website? The answer, apparently, is that ICE's mission is to protect the US Treasury and one part of that is to protect tax revenue. Of course, that argument makes no sense. By that same reasoning, when Henry Ford first started mass producing cars, Customs should have shut him down because it killed off jobs in the horse carriage industry, thus decreasing the tax base from that industry. Of course, everyone who thinks this through realizes that's silly, because the money didn't disappear, it shifted elsewhere -- to a more efficient arena, which actually resulted in economic growth and greater taxes. What Hayes and ICE are doing here is the opposite. They're holding back more efficient distribution systems, stifling speech and hindering economic growth, which actually will result in a smaller tax base.

Moe pushes back a little and asks Hayes if he thinks that linking is the same as hosting the content. Hayes doesn't answer, but simply says that they're targeting the sites that "get a lot of traffic," to which Moe reasonably shoots back: "Well, Google gets a lot of traffic." Hayes then makes stuff up about how a search engine is different, but that's based on nothing factual. He makes an artificial distinction and then finally states "well, it's a difference in our mind." Great, so because ICE is technically clueless and thinks there's a difference, it's all fine and dandy?

Moe then asks Hayes if he links to a site that has infringing content from his Public Radio blog, will ICE shut down the site. And Hayes makes a really weird remark that makes no sense, sayings that if Moe "gets advertising funds from a site that provides unauthorized content" then he might have to shut them down. But that's something new. We've seen no assertions or evidence that the sites that have been take down received ads from the other sites that were hosting the content. Is Hayes totally making stuff up now? It sounds like Hayes doesn't even understand what he's talking about.

Finally, Moe asks: if a site links and embeds to all the same content, but does not profit from it (i.e., does not have advertising), is it criminal? Hayes totally punts and says he'd have to check the law. Yes, really. So the guy is not an expert on the technology and admits he's not an expert on the law in question. So what is he an expert in and why is he leading these questionable seizures?

On a separate note, it's nice to see that Homeland Security is willing to chat with the press again after telling us that it will not speak about these issues because it's an "ongoing investigation before court." Apparently, Homeland Security was also lying to me (though, we knew that already).

What's scary about this is that every time someone from Homeland Security speaks on this issue, they display some pretty serious ignorance of the technical issues and of the specific details of the questions people are asking. They seem to get around these with wishful thinking about how -- in their minds -- these sites are "different."

Filed Under: copyright, domain seizures, homeland security, ice, james hayes, links
Companies: google

Would Twitter Be Liable For Links To Infringing Material?

from the questions,-questions,-questions dept

One of the issues that bothers many folks who pay attention to copyright issues is the growing belief by many copyright supporters that simply posting a link to copyright infringing material could itself be considered infringement. From a technical standpoint, this makes little sense. As you copyright geeks should know, US copyright law grants some specific "exclusive rights" to copyright holders in Section 106: to reproduce, to prepare derivative works, to distribute, to perform and to display (with some added specifics based on what kind of work it is). Still, I'm at a loss to figure out what linking to a work does? It's not reproducing the work. It's not preparing a derivative work. It's not distributing the work. It's not performing or displaying the work. So what part of copyright law does linking violate?

Anyway, the reason why I'm asking this now is that it appears that Twitter is suddenly getting swamped with DMCA takedown notices lately. I only discovered that after a recent TorrentFreak article about the top DMCA takedown senders as compiled by ChillingEffects.org. What struck me, in Wendy Seltzer's summary, was that she mentioned that the largest sources of DMCA takedowns are "Google, Yahoo, Digg, and most recently, Twitter."

The addition of Twitter struck me as odd. After all, how much copyright infringement can you do in 140 characters. Nearly two years ago, we had discussed the question of whether or not those "tweets" themselves could be copyrighted (which could lead to legal questions when people "retweet" your messages). We had trouble believing that fair use wouldn't apply to messages. Then, this past April, we had an interesting discussion after a guy named JP was upset that Twitter deleted a tweet of his that was merely a link to his own blog post, which discussed a new album that had leaked, and included (in the blog post, not on Twitter) a link to one song that was already widely being linked to on music blogs, including Pitchfork, as well as a link to Amazon where people could buy the album. The copyright holder had issued a DMCA takedown on the Twitter message, which we took to be an abuse of the DMCA process. Nothing in the tweet was infringing. Heck, you could argue that nothing on the blog post was infringing.

However, in looking down the list of DMCA notices to Twitter, the vast majority of them appear to be copyright holders complaining about tweets that link to their material hosted elsewhere. I did see one that involved a background image, which is a bit more understandable as a copyright issue, but I'm a bit troubled by the massive numbers of takedown messages solely on links. Why not just issue the takedowns on whoever is actually hosting the material? Targeting links just seems fraught with potential problems and it's still not at all clear to me that links, themselves, are really infringing.

Of course, it's likely that Twitter is removing the tweets in question in order to protect itself from liability. But I'm wondering if anyone actually thinks Twitter would be liable for copyright infringement if it didn't do that.

Filed Under: copyright infringement, dmca, dmca notices, links
Companies: twitter