Law Prof Writing Revenge Porn Legislation Wants To Upend Safe Harbors On The Internet 'For The Children'

from the let's-nuke-the-internet-to-kill-that-one-thing dept

It's pretty much universally accepted that "revenge porn" is a bad thing and that steps should be taken to prevent the posting of someone's private photos (usually along with contact info) at various websites that entertain the small minds that find this cathartic or fascinating or hilarious (and, of course, it's even worse that many of these sites then try to charge people to take down their photos).

Unfortunately, because it's so thoroughly reviled, attempts to curtail revenge porn tend to be poorly thought out. One bad law can do an awful lot of collateral damage -- something those actively pushing legislative solutions tend to forget in their hurry to rid society of unpleasantness.

Mary Anne Franks, a law professor at the University of Miami, has been pushing to get revenge porn criminalized. To that end, she is helping draft a bill with an (unnamed) member of Congress. The problems with her proposed legislation are several. Houston defense attorney Mark Bennett has unpacked the First Amendment implications (mostly negative) of her proposed law in two excellent and thorough posts over at his blog, Defending People.

A overly-simplified reduction of Franks' arguments in favor of the proposed law boils down to this: because it's unpleasant and most people would find it offensive, it isn't protected by the First Amendment. Bennett disassembles each point she makes and they all seem to come back to this.

Franks: "The First Amend­ment does not serve as a blan­ket pro­tec­tion for mali­cious, harm­ful con­duct sim­ply because such con­duct may have an expres­sive dimen­sion. Stalk­ing, harass­ment, voyeurism, and threats can all take the form of speech or expres­sion, yet the crim­i­nal­iza­tion of such con­duct is com­mon and care­fully crafted crim­i­nal statutes pro­hibit­ing this con­duct have not been held to vio­late First Amend­ment prin­ci­ples. The non-consensual dis­clo­sure of sex­u­ally inti­mate images is no different."

There is a world of dif­fer­ence between “The First Amend­ment does not serve as a blan­ket pro­tec­tion for mali­cious, harm­ful con­duct” and “mali­cious, harm­ful con­duct is unprotected.”

Franks makes a num­ber of such asser­tions as “the non-consensual dis­clo­sure of sex­u­ally inti­mate images is no dif­fer­ent,” but stamp­ing her foot and insist­ing that it’s so doesn’t make it so. Even if a law pro­fes­sor is inca­pable, a com­pe­tent lawyer can always find a dif­fer­ence between two things. One impor­tant dif­fer­ence between the dis­clo­sure of sex­u­ally inti­mate images on the one hand, and the con­duct of harass­ment, threats, and stalk­ing on the other, is that a statute for­bid­ding the for­mer is nec­es­sar­ily content-based, so it must meet strict scrutiny.

“It’s kinda like harass­ment” doesn’t over­come the obsta­cle of strict scrutiny, espe­cially since the Supreme Court has never upheld a crim­i­nal harassment statute.

As Bennett details, Franks has approached this largely in the "activist" role, rather than a scholarly role. In doing so, she's made arguments current case law just doesn't back up. That itself is problematic considering she's working with a Congress member to draft a law that will address an already-emotionally charged issue.

But it gets worse. Scott Greenfield points out a recent interview Franks did with US News and World Report, where she makes this troubling statement.

Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn't violate federal copyright or criminal law.

"A lot of companies are under the impression they can't be touched by state criminal laws," Franks said, because "Section 230 trumps any state criminal law."

The Communications Decency Act, however, doesn't trump federal criminal law, she said, pointing to child pornography.

"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."

"Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown... that this is nonconsensual material and needs to be taken down."

Having earlier questioned how long it would take Section 230 to fall in the face of anti-revenge porn efforts, Greenfield now has his answer.

Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet. After all, what’s free speech when compared to their feelings?

The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there's a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.

Franks "rebutted" Zimmerman's assertion, but from an oblique angle.

I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.

Well, if the EFF and ACLU don't think it's a bad idea… Oh, wait. That's not what she actually said. Greenfield breaks it down.

Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.

Franks is looking to do some serious damage to free speech with her proposed law. While it could be theorized that courts will buy her arguments about what the First Amendment does and doesn't protect (troubling in its own way), this proposed attack on Section 230 Safe Harbor is bad news no matter how you look at it. The fact that she brings up child pornography is another indication that advocating for this law has very little to do with ensuring standing protections remain as unscathed as possible.

Politicians and special interest groups have often used "for the children" as an excuse for all sorts of legislative havoc. After all, who's going to defend child pornography? It's a disingenuous rhetorical tactic that equates Pet Issue A with The Worst Thing on the Internet in order to paint opponents as child porn sympathizers. But as Greenfield says, what are rights compared to feelings? Revenge porn is bad, and those arguing against legislative measures like Franks' are frequently portrayed as misogynists trying to ensure their abuse of women continues uninterrupted. Here's Franks herself on the subject:

But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex.

There's also some indication that Franks, like many others who aggressively advocate for laws that will fundamentally alter the way the internet runs, doesn't have a solid grasp on the very area she's attempting to regulate. She makes the following statement, which follows shortly after her above assertion that opponents will make "cynical arguments" about the First Amendment.

These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.

As commenter Ken Arromdee points out, this statement is beyond obtuse.

You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?

Greenfield asks when other law professors are going to step up and call Franks out for her bullshit. The answer, sadly, may be "never." Franks' own statements show she's more than willing to call any opponent a misogynist, something that can easily spell the end of an academic career. No one in this field is in a hurry to get smeared as a revenge/child porn proponent. Even more discouraging -- if this legislation ever hits the floor for a vote -- very few politicians will be willing to oppose this and end up labeled misogynist or simply "soft" on revenge porn, no matter how damaging the outcome will be for the First Amendment and the Section 230 Safe Harbors.

Filed Under: free speech, mary anne franks, revenge porn, secondary liability, section 230

Royalty Collection Agency SABAM Sued By Belgian Government Over 'Piracy License' Plans

from the getting-a-clue dept

Back in May, we wrote about how the Belgian music royalty collection agency SABAM was taking ISPs there to court over its demand for 3.4% of Internet subscriber fees as "compensation" for online piracy in Belgium. In yet another slapdown for SABAM -- it had previously failed in its attempt to turn ISPs into copyright cops -- the Belgian regulator says SABAM's plan falls foul of the EU's e-commerce directive, as IT World reports:

the Belgian government's FPS Economy (Federal Public Service Economy) agency, which has regulatory power, believes that Sabam is wrongly asking providers for compensation, said Chantal De Pauw, an agency spokeswoman.

While the FPS opposes any kind of illegal downloading, Sabam's solution penalizes Internet users and this is against the E.U.'s e-commerce directive, according to the authority. Providing Internet access is not the same as publishing protected works, the FPS said in a news release, adding that there are other ways to fight illegal downloads than posing levies on ISPs.

Even more dramatically, FPS is taking legal action against SABAM to stop it proceeding with its own lawsuit:

The FPS has ordered Sabam to stop its lawsuit, but the association has argued that they are operating within the bounds of the law, said De Pauw. FPS has therefore decided to sue Sabam in October to force it to stop its legal procedures against the ISPs, De Pauw said. If FPS wins the suit, Sabam faces penalties of up to €100,000 (US$137,600) per day if it continues its quest, she added.

SABAM has always been frustratingly out-of-touch with reality in its demands, but now that it is being sued by its own government, perhaps it will finally take the hint and drop its ridiculous and unjustified scheme.

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Filed Under: belgium, isps, piracy license, secondary liability
Companies: sabam

Appeals Court To Explore If A Site With 'Dirt' In The URL Loses All Liability Protections For User Comments

from the this-is-kind-of-important-for-us dept

We've covered the bizarre case of Sarah Jones vs. Dirty World (operators of the website "thedirty.com") for quite some time. If you don't recall, this former professional cheerleader/school teacher got upset when a user of thedirty.com posted some statements about her that were potentially defamatory. Rather than go after the actual person who made those claims, Jones sued the site. Well, technically, she and her lawyers first sued the wrong site, which made for quite a mess at the beginning. Eventually, though, she sued the right site, which correctly pointed out that they were protected from liability for their users statements under Section 230 of the CDA. Every court that has taken on a Section 230 case like this has ruled the same way -- that sites are not responsible for the statements of their users. Every one. Until this one. Even more ridiculous -- especially for those of us here at Techdirt -- was the fact that the judge specifically stated that one of the reasons why the site was ineligible for Section 230 safe harbors was because the site had "dirt" in its name:

First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.

Yikes! Given the judge's nonsensical rejection of the Section 230 safe harbors, the case went forward and the jury awarded Jones $338,000 from the site. Not surprisingly, Dirty World appealed, pointing out that the court clearly got the Section 230 analysis totally and completely wrong. David Gingras, the lawyer for Dirty World, has provided a plain language explanation of the case, the process and the importance of this, along with the opening brief of the appeal. If you're not a lawyer or haven't followed this case closely, it's a good way to catch up on the details -- including why this case is so important.

As Gingras notes, nearly every circuit in the US has ruled that Section 230's safe harbors apply to websites, and remove liability from the sites for actions taken by their users. The circuit this particular case is in -- the Sixth Circuit -- is one of only two circuits that has not taken on this issue directly. So this is the first chance for the court to do so, and it can either agree with every other court, or it can try to forge its own way, which will almost certainly lead to Supreme Court review over the nature of the Section 230 safe harbors. Given just how key those safe harbors have been to innovation and the growth of the internet, this case is incredibly important on a whole variety of levels.

While I'm most interested in the larger legal questions concerning making sure Section 230's safe harbors are kept strong and intact, there is also (obviously) the issue that impacts us directly about the use of the name and the word "dirt." The brief has a whole section explaining why the name of the site is irrelevant (citing numerous cases that agreed). However, given that our name includes "dirt" as well, I'm tempted to explore filing an amicus brief in this case on that particular issue, given that we have a... unique perspective on this particular issue. While I admit that the other points in this case are clearly more important in the long run, I'm sure that Gingras and other amici will likely be able to handle those arguments easily.

Still, this case is going to be important to follow. Either the court will confirm, yet again, the core ideals that have helped the internet, innovation and user-generated content sites to flourish over the past decade and a half, or it will put all of that at risk. Just the fact that this is up for debate is troubling enough -- and while we're hopeful that the court will rule wisely, the small possibility of a ruling upholding the initial judge is immensely troubling.

Filed Under: cda, sarah jones, secondary liability, section 230, sixth circuit, thedirty.com
Companies: dirty world, thedirty.com

Russia's Leading Social Network VKontakte Cleared Of Copyright Infringement

from the surprising,-but-maybe-irrelevant dept

VKontakte is not only the largest social networking site in Russia, but is also one of the biggest unauthorized repositories of copyright music, thanks to its file-hosting service. Given the moves to clamp down on copyright infringement in Russia, it seemed only a matter of time before VKontakte found itself in hot water because of this. And yet, as Torrent Freak reports, something unexpected has happened:

Russia's largest social network has been cleared of copyright infringement charges by a court in St. Petersburg. A lawsuit brought by a famous local records label alleged that VKontakte should be held liable for music piracy carried out by its users. However a judge ruled that there was no way the site could monitor all user uploads for infringement and in any event, no operator of Vkontakte had anything to do with the downloading, recording, and dissemination of any infringing content.

This is, of course, an eminently sensible ruling, because it is indeed impossible for VKontakte to check every upload for possible infringement, not least because copyright law is so complex that only courts are competent to make that call. However, it looks like unauthorized uploads may be going away anyway:

Earlier this year the site's founder said that talks were underway with Universal, Warner and Sony with a view to making their content available to the site's users as part of a licensing deal.

It seems inevitable that part of that deal would be the elimination of all those unofficial copies. VKontakte's recent court win will at least strengthen its negotiating position when it comes to arguing over the details.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, russia, secondary liability, social media
Companies: vkontakte

Better Business Bureaus Pushing For 'SOPA For Trademarks' On Domain Registrars & Registries

from the bad-ideas dept

Never underestimate the ability of those who over-rely on intellectual property to not just push for greater protections, but to try to pin greater and greater liability on others who they want to rope into their own fights. Phil Corwin has an article about how the Council of Better Business Bureaus, along with the Coalition Against Domain Name Abuse (a motley crew of mostly banks and insurance companies, but with random others like Dell, DirecTV and Eli Lilly thrown in there), are looking to change the Anti-Cybersquatting Protection Act (ACPA) to make it more SOPA-like when it comes to cybersquatting.

Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants.

As with SOPA, they're using pure FUD to make this argument, inflating the "threats." With SOPA, copyright maximialists sought to conflate actual dangerous situations like counterfeit drugs (which were minimal in number) with non-dangerous activities that were more widespread (sharing movies and music). Here, the BBB and CADNA ramp up FUD about how phishing attacks use cybersquatted domains to trick people into handing over their info. Except, as Corwin notes, the actual evidence on phishing shows that it's rarely cybersquatted domains that are used in phishing (in part because companies are already quick to spot those and deal with them). In fact, he points out that the very research the BBB and CADNA are relying on to hype up cybersquatting notes that only 2.3% of phishing domains actually contain a brand or variation of a brand.

And, as with SOPA, the real goal here is to pin liability on a ton of third parties (beyond just registries and registrars) making them responsible if they happen to do business with a cybersquatted domain:

Of course, under CADNA’s proposal this potential financial jeopardy would be faced by parties far beyond the domain registrant, as they also want to “Establish liability against an affiliate, representative, or any other person or entity that is in active concert or participation with the registrant, including but not limited to a domain name registrar or domain name registry.” Potential liability would also accrue to “Internet parking pages, pay-per-click advertising, and other monetization schemes”. In other words, not just domain industry participants but everyone else involved in the Internet business ecosystem, including ad providers and payments processors, would be brought under ACPA jurisdiction if CADNA had its way. As we saw with the rightfully failed SOPA legislation, secondary liability would either vastly expand the potential windfall to litigants or cause these service providers to cut off domains at even the hint of a lawsuit, depriving registrants of the very domain-generated income required to fund litigation defense when they believe the allegations against them are bogus.

While this wouldn't impact the public as directly, it's basically a trademark version of SOPA, more specifically focused on cybersquatting. But even just setting the precedent of greater secondary liability would be a huge problem. Trademark already suffers from a lack of secondary liability safe harbors. Pinning direct liability on third parties for the actions of others is a step in the wrong direction.

Filed Under: cybersquatting, domains, liability, secondary liability, sopa, trademark
Companies: better business bureau

RIAA Whines To Congress That It Doesn't Like Google's Search Results

from the also,-it-doesn't-play-nice-in-the-sandbox dept

We already noted that the first "punch" of the legacy entertainment industry's new attacks on Google was a silly and self-contradictory study from the MPAA blaming Google for leading susceptible people straight to infringing content. Of course, the details of the study didn't really support the inferences the MPAA is throwing out there, but, you know, that's the MPAA. The second "punch" also is pretty weak, and comes in the form of RIAA boss Cary Sherman testifying before the House Judiciary Committee's IP subcommittee. The hearing is supposed to be about "voluntary agreements," and much of Sherman's piece talks up various "voluntary" (and I use the term loosely, since nearly all were "coordinated" by the White House, and many came with the implied threat of legislation if an agreement wasn't made) agreements like the "six strikes" agreement, which studies have shown is unlikely to help the legacy entertainment industry players.

But then he turns to the "what's missing?" section, and front and center is... Google.

If ISPs can be considered the gateway by users to rogue sites online, search engines may be considered the roadmaps or, more directly, the turn-by-turn directions and door-to-door service to these sites. There can be no doubt that search engines play a considerable role in leading users to illicit services and can be a key part of addressing infringing activity online.

Actually, there can be tremendous doubt. Because as we've shown (and the MPAA's own study confirms), search engines are very rarely used to find infringing materials. Furthermore, there has yet to be any evidence that search engine blocking actually helps "address infringing activity online." In fact, as with the MPAA report, the RIAA first claims that changing search results can help, but on the very next page admits that Google did change its search results, and it didn't help. The RIAA, of course, relies on its own "report card" for Google, which has already been shown to be laughably flawed.

The problem is a basic one. The RIAA and MPAA would like sites they like to be listed higher in Google's search. Most companies that want that learn how to optimize their sites for search. It's called Search Engine Optimization (SEO). Only the legacy entertainment industry would think that, rather than doing what every other website does, they get to go to Google (and Congress) and demand that Google change its algorithm to pump up their preferred sites.

The RIAA also has an astoundingly dangerous idea for how to "fix" Google:

We believe it would be useful to see voluntary initiatives by search engines that take into account whether or not a site is authorized to provide the content at issue in determining search result rankings for searches to consume that content. This could take into account not only the absolute number of copyright removal requests sent about a site to trigger demotion of that site, but also whether the site is authorized to provide the content to trigger a higher search rank for that site.

This idea clearly comes from people who don't even have the slightest clue how search works, or what the unintended consequences of such a change would be. Let's take a basic example. If I do a basic search on the title of a movie, it doesn't necessarily mean I want to watch the movie online right away (either via authorized or unauthorized means). I might just want to know who acted in it, when it was released or whether it had good reviews. But, under the RIAA's proposed "solution," Google should demote all the perfectly legitimate websites that provide that kind of information, and instead push sites that have licensed the movies to the top. That's not going to help. It's going to piss off information seekers.

Furthermore, this doesn't take into account how things change, and how sites/technologies that are initially attacked by the industry later turn out to be important. We've talked plenty of times about the MPAA's well covered attacks on the "Boston strangler to the movie industry" that was the VCR. Of course, it was just four years after Jack Valenti made those comments that Hollywood was making more money from home video than from the box office. So, along comes the next VCR... and the RIAA and MPAA get to whine about how it's "not authorized" and pushes down the search results. Suddenly this tool that could be a tremendous boon to the industry can't get the attention necessary to grow and succeed. It's not far fetched. Viacom is still suing YouTube, even as basically the entire legacy entertainment industry relies on YouTube as a tremendous marketing and distribution tool. Imagine if the RIAA's plan was in place in YouTube's early days?

Google has announced that it intends to develop and deploy technology to eradicate links to child pornography images from the web. Certainly similar technology can be used to remove links to other illegal content.

The legacy players have trotted out this line for years, and it's no less ridiculous than it's been every time in the past. There is no "fair use" for child porn. There is fair use for copyright-covered content, and the ability to build up tools (like YouTube) that take advantage of fair use is shown to have a tremendous impact on creating useful and innovative new tools and services for the industry and the public alike. The RIAA's belief that Google can magically stamp out infringement shows a fundamental misunderstanding about how copyright works -- or (more likely) a general condescending attitude towards fair use.

Also, Google has tools in its Chrome browser to warn users if they are going to sites that may be malicious. Shouldn’t that technology be used to warn users of rogue sites?

Except there's a major difference. People don't want to go to malicious sites. Google is doing its users a favor there. When users want to go to access unauthorized content, putting up a warning page goes against their wishes and pisses off users. I recognize that the RIAA has spent decades believing that pissing off users is a viable strategy, but that might also be why they've shrunk so much, while companies that respect their users have grown.

Or better yet, can Google use similar technology to highlight or identify sites that are authorized? Imagine if links to content on legitimate sites were labeled – directly in the search result –with a certification mark indicating that the site is licensed and actually pays royalties to creators. That educational message could have a profound and positive impact on user behavior.

Again, not the problems above concerning perfectly legitimate search results that are not about getting access to the actual content. They would get punished under such a system. Furthermore, this assumes that the problem is "education." That people just don't know where to go to get authorized content. There's little indicating this is true.

Finally, beyond the issue of annoying clutter on Google's interface at the behest of a single industry, you have to wonder where heading down that path lies. If the record labels and movie studios get it, what about luxury brands? I'm sure Louis Vuitton would love to be able to get a special mark on search results it likes. Or, how about the Associated Press? Perhaps it wants a special mark on news publications it "approves." Suddenly lots of other legitimate sites are left out in the cold.

Either way, we've been running around seeing the RIAA and MPAA do the same damn thing for a decade and a half now. It's always about blaming others for their own failures to give consumers what they want. Yet, when they finally do give consumers what they want, infringement tends to go down. Magic. Perhaps instead of continually looking around at who else they can blame for their own failings, they should spend a bit more time trying to innovate.

Filed Under: cary sherman, judiciary committee, search engines, search results, secondary liability
Companies: google, riaa

Label Sues Spotify Because Some Of Its Users Create Playlists Of Authorized Music In The Same Order It Did

from the wait,-really? dept

Another day, another wacky copyright lawsuit. Ministry of Sound, the well-known nightclub/record label in London that puts together various compilations of dance music is suing Spotify, claiming copyright infringement in a case that will fascinate copyright fanatics. This one goes a few layers deep, so stick with it: MoS is not suing because the music on Spotify is unauthorized. Nor is it suing because of anything that Spotify itself did. Rather, it's suing because some users of Spotify have put together and published "playlists" (a feature found on pretty much any music playing software ever) that mimic some of the compilations that MoS has released. Again, the music itself is all legally authorized and licensed to be on Spotify. The complaint from MoS is merely that some Spotify users have put them together in the same order. And this is somehow an outrage and copyright infringement:

Chief executive Lohan Presencer claims that his company has been asking Spotify to remove the playlists – some of which include "Ministry of Sound" in their titles – since 2012

"It's been incredibly frustrating: we think it's been very clear what we're arguing, but there has been a brick wall from Spotify," said Presencer.

While US law does cover some very loose copyright protection for "compilations," UK law may be worse. As we covered a few years ago, there was a ridiculous case in the UK, in which a court argued that putting together a list of facts could create a copyright. The case involved football schedules, and the court ridiculously said:

"The process of preparing fixture lists involves very significant labor and skill in satisfying the multitude of often competing requirements of those involved," Judge Christopher Floyd said. "(It is) not mere sweat of the brow, by which I mean the application of rigid criteria to the processing of data. The quality of the solution depends in part on the skill of those involved."

It seems quite likely, that MoS is relying on this kind of language to make its argument, though I'd argue that all this case does is highlight just how ridiculous that original ruling is. Yes, there can be creativity involved in putting together a playlist, but that doesn't mean it should receive a copyright.

And then there's the entirely separate issue of secondary liability. Why should Spotify be liable for how its users group their songs together? Should Spotify actually be forced to police users and stop them from putting various combinations of songs together in a particular order? Does anyone actually think that's a useful purpose for copyright?

Once again, we see what copyright is turned into: a tool for control and stopping what most people think is basic human activity. Putting together authorized, legal songs in a particular order? How could anyone think that should be infringing?

Filed Under: compilations, copyright, playslists, secondary liability, uk
Companies: ministry of sound, spotify

Bad News: Court Says Cyberlocker & Its Owner Can Be Liable For Copyright Infringement

from the secondary-liability:-watch-out dept

While the full ruling won't be out for a few weeks, a Florida court has made a horrifically dangerous ruling, saying that cyberlocker Hotfile can be liable for copyright infringement. We've been covering the Hotfile case from the beginning, and find this to be fairly surprising. The details of the MPAA's original lawsuit were astoundingly weak, based on bad inferences and innuendo, which would destroy concepts of protection against secondary liability and completely undermine the safe harbors of the DMCA. The fact that the MPAA misrepresented how Hotfile was used only made things worse. On top of that, it sounds like the judge has said that the guy who owned Hotfile, Anton Titov, is also personally liable.

The specific details of the ruling will be important, because it's very important to see on what basis Judge Kathleen Williams found as she did, but the risk of massive harm to innovation and the safe harbor protections under the DMCA is very, very real. Stupidly, the MPAA is cheering on this decision, despite the fact it will likely create chilling effects that will harm the kind of innovation the movie industry needs the most these days.

I know that some people will, undoubtedly, argue that Hotfile was used for a lot of infringement -- and there's evidence to suggest that's true. But, copyright owners have always had a remedy there: go after the actual infringers. Putting liability on the cyberlocker itself now puts just about any online cloud provider at risk of getting sued. Dropbox, Box.net, Flickr, YouTube, Google and many others need to pay close attention to what comes out of this case, because pinning liability on a third party storage company will make it much more expensive for any such service to be in business. This is sad, and stupidly counterproductive for the MPAA, because what it should be doing these days is embracing services that help fans access the kind of content they want when they want it. Instead, they're actively trying to shut down innovations via copyright law.

I'm sure we'll have a more thorough analysis of the full details of the ruling once they're out.

Filed Under: anton titov, copyright, cyberlocker, dmca, dmca safe harbors, kathleen williams, safe harbors, secondary liability
Companies: hotfile, mpaa

UK Prime Minister Calls ask.fm A 'Vile Site,' Blames It For The Behavior Of Some Vile Users

from the a-bigger-target-is-always-easier-to-hit dept

Another tragedy in the UK and Prime Minister David Cameron has moved swiftly to ensure the moment doesn't pass without comment. As is Cameron's standard m.o., he has sent his mouth ahead as an advance party, allowing his intellect and reasoning to arrive at their leisure.

The impetus for Cameron's latest blast is the suicide of a 14-year-old girl who was apparently bullied by other users of teen-heavy social site, ask.fm. And like his earlier attacks on various web entities, triggered by the kidnapping and murder of a 5-year-old girl, Cameron blames the acts of individuals on third parties.

Internet users should boycott "vile" websites that allow cyberbullying to help prevent more deaths of young people, the prime minister has said.

David Cameron asked parents to boycott sites that granted bullies unmoderated access to young people and said those who posted abuse online were not above the law.

Calling for a boycott isn't the issue. This is a perfectly acceptable response, although slightly less so when the head of a nation does it, which adds a hint of censorship to the proceedings. No, it's the fact that Cameron believes the sites themselves (no others are named at this point) are "vile," mistaking (perhaps purposely) that ask.fm, in and of itself, is neutral at worst. It's the users, and then only a small subset of them, that are "vile."

There are many sites on the web that normal people would consider "vile," like theYNC.com or, for that matter, LiveLeak, which shows plenty of uncensored videos depicting very graphic violence. A social media site that allows users to ask questions and receive answers from nearly anyone is prone to be abused by trolls and sociopaths, but the site itself is not "vile."

Cameron added more to that, some of it even reasonable.

He urged website operators to act responsibly to protect children from bullies, following the death of 14-year-old Hannah Smith, who killed herself on Friday after receiving abuse on Ask.fm.

There's nothing wrong with asking websites to provide more moderation but government officials asking/demanding this sort of compliance need to be aware that not every site will have the financial or technical ability to monitor incoming content with an efficiency that will please any aggreived parties. In fact, no site, no matter how well-funded can hope to achieve this. Abuse can and will slip through the cracks.

Even a behemoth like Facebook is unable to control every instance of offensive behavior that occurs under its purview. This is just part of the territory. If you provide a service for millions of users, abuse is inevitable. This is because you're serving human beings, some of whom are truly amoral.

Calling the site "vile" simply shifts all of the blame (in a very official manner) to ask.fm, something Cameron really has no business doing. But this is how he handles the web -- it's the biggest target's fault. Child porn is the fault of search engines. Abusive behavior is the fault of ask.fm.

Even if ask.fm's moderation efforts were the very least it could do, it's ridiculous to think it should be responsible for abusive messages sent by its users. It should make a real effort to moderate more of its users' messages, but at some point it will hit a wall in effectiveness, especially considering how popular the service is. Pushing it to do more than it can capably handle will only result in overreactions that will curtail its usefulness for its members.

Cameron's call for a boycott is already having an effect. Many advertisers are pulling out of the site. Someone may want to ask Cameron how ask.fm is supposed to better police its users when its revenue streams are swiftly drying up and its user base is being warned away by the Prime Minster himself.

If it continues in this fashion, chances are ask.fm will just go under. People who buy into Cameron's projection of user behavior as the behavior of the site itself will be happy. People who think the site offered nothing but bullying will feel they've won a battle. But those abusive users, who won't be affected by boycotts, outrage or a sudden lack of revenue will just go elsewhere and abuse other people. After all, they're not on the radar. Only the hosts are.

Cameron points out there are laws against the sort of bullying behavior that reportedly occurred on ask.fm and that "just because it happened on the internet," those behind the bullying shouldn't expect to be above those laws. Good points, but they're points Cameron's ignoring. There are laws in place against this behavior, but those have to be deployed against the offending users, something Cameron talks about, but doesn't seem very inclined to actually pursue.

Attacking the nameplate out front is easy and usually results in some very visible, if skin deep, changes by the entities being attacked. And why not? The attack itself is only skin deep. It's easier than dealing with the underlying issues or asking people to take personal responsibility for themselves or their children. It's also easier than explaining to someone post-tragedy that terrible people inhabit the world and it's impossible to prevent all of them from ever harming others.

This is Cameron hanging the web in effigy, nothing more. Any perceived effects will only last until the crowd wanders away.

Filed Under: david cameron, free speech, liability, secondary liability, suicide, uk