576 German Artists Want EU Copyright Directive Made Worse, With No Exceptions For Memes Or Mashups

from the promise?-what-promise? dept

When the EU Copyright Directive was being drawn up, one of the main battlegrounds concerned memes. The fear was that the upload filters brought in by the new law would not be able to distinguish between legal use of copyright material for things like memes, quotation, criticism, review, caricature, parody and pastiche, and illegal infringements. Supporters of the Directive insisted that memes and such-like would be allowed, and that it was simply scaremongering to suggest otherwise. When the Directive was passed, BBC News even ran a story with the headline "Memes exempt as EU backs controversial copyright law". The MEP Mary Honeyball is quoted as saying: "There's no problem with memes at all. This directive was never intended to stop memes and mashups."

But just as supporters insisted that upload filters would not be obligatory -- and then afterwards changed their story, admitting they were the only way to implement the new law -- so people who insisted that memes and parodies would still be allowed are now demanding that they should be banned. Copyright companies were the first to make that shift, and now a group of 576 German artists have sent a letter to the German government and politicians complaining about the proposed implementation of the Copyright Directive in their country (original in German). In particular, they are appalled by:

the introduction of all kinds of exceptions, some of which are so outrageously contrary to European law, that we can only shake our heads: up to 20 seconds of music, remixes, mash-ups, samples etc. -- everything should be freely usable, without a license.

In other words, precisely the things that supporters of the EU Copyright Directive promised absolutely would be freely usable, without a license, when experts warned that the new legislation could threaten these legal activities. Now these artists are demanding that the German government ignore all those assurances that user rights would indeed be preserved.

However, as Heise Online reports, not all German artists are so selfish in their desire to take away what few rights ordinary members of the public have in the use of copyright material for memes, remixes and the like. A group of 48 top German artists using social media to great effect, and who together have around 88 million followers on YouTube, Instagram, Twitter, Twitch and TikTok, take a very different view of the German government's proposed implementation (original in German):

Article 3 paragraph 6 describes the public reproduction of a tiny excerpt of works protected by copyright and parts of works by the user of a service provider, for non-commercial purposes or where insignificant income is involved. In these circumstances, thanks to Article 3 Paragraph 6 it would be legal to use up to 20 seconds of a film, up to 20 seconds of a sound track, up to 1,000 characters of text and a picture of up to 250 kilobytes without having to purchase a license, since the rightsholders are compensated for the usage via the service provider. We content creators expressly support this rule.

This so-called "legalization of memes" shows that the politics of [the German government] is close to how reality operates. What defines our culture is always evolving, also through digitization. Memes have been part of our culture for many years and are finally recognized by this ministerial draft.

The statement from the 48 social media artists also includes a neat encapsulation of why their position is so different from the 576 artists whining about memes and mashups:

we would like to point out that content creators are simultaneously users and owners of copyrights, i.e. [they are both] creatives and companies in the cultural industry.

The 576 artists who wish to deny an Internet user the right to draw on copyright material for memes, parodies, mashups etc. forget that they too draw constantly on the works of others as they create -- sometimes explicitly, sometimes more subtly. To cast themselves as some kind of creative priesthood that should be granted special privileges not available to everyone else is not just unfair, but insulting and short-sighted.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: art, article 17, copyright, copyright directive, culture, eu, exceptions, germany, memes, upload filters, user rights

Vermont's Revenge Porn Law Ruled Constitutional... With An Incredibly Confused Ruling

from the not-how-it-works dept

Revenge porn -- or, more accurately, "non-consensual pornography" -- is unquestionably bad. We've spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.

However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we've repeatedly documented, these revenge porn sites don't seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.

In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I've often pointed to lawyer Mark Bennett's 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it's not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn't be subject to the First Amendment.

Some people insist that revenge porn would clearly be exempt from the First Amendment because it's so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it's very short and narrow list of exceptions, and hasn't shown any indication that it's ready to expand that list.

Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.

But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state's revenge porn law is constitutional. And part of the reason he's so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment... but (surprisingly) that it still can withstand strict scrutiny:

For the reasons set forth below, we conclude that “revenge porn” does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.

That's... very strange. Usually, once a court recognizes that something is not in an exempted bucket, it finds the law to be unconstitutional. Here, Vermont is carving new territory. Thankfully, as part of saying that revenge porn is not in an already exempted bucket is a good thing, as it wipes out the incorrect claim by some law professors that you could just say that revenge porn is obscene (which would be very problematic). The court correctly highlights how there are massive differences between what is obscene and what is revenge porn, and notes (correctly again) that the Supreme Court is loathe to expand the definition of obscene:

We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court’s reluctance to expand the scope of obscenity on the basis of a purpose-based analysis.

Next, the court (correctly!) says it's in no position to create a new category of exempted speech:

Although many of the State’s arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion from the full protections of the First Amendment when the Supreme Court has not yet addressed the question.

Indeed, the Vermont Supreme Court highlights how frequently the US Supreme Court has been tossing out laws that try to create new categories of unprotected speech:

[W]e decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court’s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.

More than once in recent years, the Supreme Court has rebuffed efforts to name new categories of unprotected speech. In Stevens, the Court emphatically refused to add “depictions of animal cruelty” to the list, rejecting the notion that the court has “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” 559 U.S. at 472. The Court explained, “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.” Id. A year later, citing Stevens, the Court declined to except violent video games sold to minors from the full protections of the First Amendment. Brown, 564 U.S. at 790-93 (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”). And a year after that, the Court declined to add false statements to the list. Alvarez, 567 U.S. at 722 (affirming appeals court ruling striking conviction for false statements about military decorations).

More significantly, as set forth more extensively above... in case after case involving a potential clash between the government’s interest in protecting individual privacy and the First Amendment’s free speech protections, the Supreme Court has consistently avoided broad pronouncements, and has defined the issue at hand narrowly, generally reconciling the tension in favor of free speech in the context of speech about matters of public interest while expressly reserving judgment on the proper balance in cases where the speech involves purely private matters. The considerations that would support the Court’s articulation of a categorical exclusion in this case may carry great weight in the strict scrutiny analysis.... But we leave it to the Supreme Court in the first instance to designate nonconsensual pornography as a new category of speech that falls outside the First Amendment’s full protections.

So then why doesn't the court declare this law unconstitutional? Well, that has lawyers like Mark Bennett and Eric Goldman perplexed. To pass "strict scrutiny," the court has to find that the law was passed to further a "compelling government interest" and that the legislation must be "narrowly tailored" to address just the issue for which the government has such a compelling reason.

Here, the court finds that there is a compelling government interest, saying that revenge porn images are not a matter of public concern, and serious harms created by revenge porn make it so that the government has a compelling interest in outlawing such content. Fair enough. But what about the "narrowly tailored" part. That seems like where such a law should fall down, but nope:

Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State’s compelling interest because their disclosure would violate a reasonable expectation of privacy. Our conclusion on this point is bolstered by a narrowing interpretation of one provision that we offer to ensure that the statute is duly narrowly tailored. The fact that the statute provides for criminal as well as civil liability does not render it inadequately tailored.

But, of course, the real problem is that all of these laws criminalize tons of content that should otherwise be protected. And here, the court more or less ignores that, by saying that the potentially overbroad nature of the law wasn't raised by the defendant:

The Supreme Court has recognized that in a facial challenge to a regulation of speech based on overbreadth, a law may be invalidated if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at 473 (quotation omitted). Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review.

But, as Mark Bennett highlights, this is the court completely missing that "overbreadth" is the thing you check to see if a statute is "narrowly tailored." But that's not what happened. Here, the court said no one raised the "overbreadth" issue, and thus it doesn't need to bother. So, instead, it says that the law is narrowly tailored based on how the law is written with a "rigorous intent element." But, that's not how the test works. As Bennett explains:

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad—if it restricts a real and substantial amount of constitutionally protected speech—it is ipso facto not narrowly tailored, and it fails strict scrutiny.

This is a confused mess of a ruling. As Eric Goldman notes, it's possible this could be appealed to the US Supreme Court, though it's unlikely that such a petition would be granted. It does seem likely that eventually this issue would need to be looked over by the Supreme Court to clarify the confusion. But, in the meantime, the law in Vermont stands.

Filed Under: exceptions, first amendment, free speech, protected speech, revenge porn, strict scrutiny, vermont

Bad Bill Would Create A Nationwide Exception To Subpoena And Warrant Requirements For Cellphone Location Data

from the STOP-TRYING-TO-HELP dept

It's a law named after a crime victim, so you already know it's going to be questionable. Federal lawmakers are floating a bill aimed at undermining some of the Fourth Amendment just handed back to us by the Supreme Court. At stake is cell site location info, although in a much more limited amount and in much more limited form. The EFF's Dave Ruiz has more details.

The Kelsey Smith Act (H.R. 5983) tries to correct a tragedy that occurred a decade ago by expanding government surveillance authorities. It is a mis-correction.

The bill would force cell phone companies to disclose the location of a person’s device at the request of police who believe that person is in distress. On its face, that’s not unreasonable. But if the police make a mistake—or abuse their power—the bill offers almost no legal recourse for someone whose location privacy was wrongfully invaded.

This law is named after Kelsey Smith, who was murdered more than a decade ago. Police approached Verizon asking for her cellphone's current location, only to be told they needed to get a subpoena. By the time police had obtained that, Smith was already dead -- killed the same day she was kidnapped. As Ruiz points out, Kansas lawmakers immediately carved out an emergency exception for cell location ping orders, stripping away subpoena requirements. This bill would extend that to all 50 states.

The problem is the bill's wording, which would eliminate privacy protections granted to Americans under the nebulous heading of "emergency." The bill's language contains an expansive definition for the new subpoena/warrant exception, which would definitely cover no one idea of an emergency.

The Kelsey Smith Act allows law enforcement agents to access the location of any cell phone that has dialed 9-1-1 for emergency assistance in the last 48 hours. Almost by definition, that’s not an emergency. Emergencies are of-the-moment crises, requiring immediate responses. If you call 9-1-1 today to request emergency assistance, law enforcement shouldn’t be able to get your location information 48 hours later without showing that the call relates to a current emergency.

At this point, service providers can make judgment calls on demands for location info. A provider can demand a subpoena or warrant first, even if law enforcement claims it's an emergency. These assessments are made on behalf of their customers, protecting their privacy against needless intrusion. If the police need the info, they have the burden of showing cause. This bill would do more than simply reverse the burden of proof. It would do away with it completely, forcing service providers to turn over info any time an officer states it's an emergency.

The problem with granting law enforcement a longer leash in these cases is they've been shown to abuse the permissions they already have. The EFF's post contains statements from the ACLU's Nate Wessler about abuse of emergency exceptions in police departments all over the nation, used in criminal cases involving no real emergencies.

But that's not all. The Justice Department's watchdog has uncovered systemic abuse of the same exceptions by federal officers.

In a 2010 report, the Department of Justice’s Inspector General found systemic misuse of emergency requests for call record information by the FBI. The report found that emergency requests were used in entirely non-life-threatening situations, including three “media leak investigations,” one of which resulted in the collection of telephone records from Washington Post and New York Times reporters.

While nominally limited to phones that have dialed 9-1-1, the exception encourages officers to think outside the Fourth Amendment's box and use the paperless route whenever possible. This isn't speculation. This is what's already happening. At this point, it's still mainly up to service providers to fend off BS demands for location data. If this bill passes, the last barrier will be torn down, turning service providers into unofficial extensions of law enforcement agencies.

Filed Under: 4th amendment, emergencies, exceptions, kelsey smith, kelsey smith act, law enforcement, location info, subpoena, warrants

ESA Comes Out Against Allowing Museums To Curate Online Video Games For Posterity

from the disappear-that-art dept

A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE's argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.

Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.

“The proponents characterize these as ‘slight modifications’ to the existing exemption. However they are nothing of the sort. The proponents request permission to engage in forms of circumvention that will enable the complete recreation of a hosted video game-service environment and make the video game available for play by a public audience.”

“Worse yet, proponents seek permission to deputize a legion of ‘affiliates’ to assist in their activities,” ESA adds.

The proposed changes would enable and facilitate infringing use, the game companies warn. They fear that outsiders such as MADE will replicate the game servers and allow the public to play these abandoned games, something games companies would generally charge for. This could be seen as direct competition.

There is a ton of wrong in there to unpack. To start, complaining that MADE's request would allow them to replicate the gaming experience of an online multiplayer game does nothing beyond essentially repeating what MADE is requesting. The whole idea is that these games should be preserved for posterity so that later generations can experience them, gaining an understanding of the evolution of the industry. How could this be accomplished without libraries and museums making the online game playable? And how is that different than what these folks do for non-online games? With that in mind, further complaining that museums might ask for help from others to accomplish this task doesn't make a great deal of sense.

As for the final complaint about these museums making these games playable when gaming companies normally charge for them is nearly enough to make one's head explode. Museums like MADE wouldn't be preserving these games except for the fact that these games are no longer operated by the gaming studios, for a fee or otherwise. What ESA's opposition actually says is that making older online games playable will compete in the market with its constituent studios' new online games. To that, there seems to be a simple solution: the game companies should keep these older online games viable themselves, then. After all, if a decade-old MMORPG can still compete with newer releases, then clearly there is money in keeping that older game up and running. Notably, game publishers aren't doing that. Were ESA's concerns valid, they surely would, unless they hate money, which they do not.

What's ultimately missing from ESA's opposition is what exactly is different about these online games compared with non-online games that already have these anti-circumvention exemptions. The closest it gets is complaining that preserving these online games would require server content that game companies haven't made public in the past. Why exemptions for that should be different than the code for localized games so that emulators can run them is a question never answered. That ESA chose not to offer up a more substantive answer to that question is telling.

Filed Under: abandoned games, copyright, dmca, dmca 1201, exceptions, multiplayer games, triennial review
Companies: esa

The Codification Of Web DRM As A Censorship Tool

from the exceptions-that-create-a-rule dept

The ongoing fight at the W3C over Encrypted Media Extensions -- the HTML5 DRM scheme that several companies want ensconced in web standards -- took two worrying turns recently. Firstly, Google slipped an important change into the latest Chrome update that removed the ability to disable its implementation of EME, further neutering the weak argument of supporters that the DRM is optional. But the other development is even more interesting -- and concerning:

Dozens of W3C members -- and hundreds of security professionals -- have asked the W3C to amend its policies so that its members can't use EME to silence security researchers and whistleblowers who want to warn web users that they are in danger from security vulnerabilities in browsers.

So far, the W3C has stonewalled on this. This weekend, the W3C executive announced that it would not make such an agreement part of the EME work, and endorsed the idea that the W3C should participate in creating new legal rights for companies to decide which true facts about browser defects can be disclosed and under what circumstances.

One of the major objections to EME has been the fact that, due to the anti-circumvention copyright laws of several countries, it would quickly become a tool for companies to censor or punish security researchers who find vulnerabilities in their software. The director of the standards body called for a new consensus solution to this problem but, unsurprisingly, "the team was unable to find such a resolution." So the new approach will be a forced compromise of sorts in which, instead of attempting to carve out clear and broad protections for security research, they will work to establish narrower protections only for those who follow a set of best practices for reporting vulnerabilities. In the words of one supporter of the plan, it "won't make the world perfect, but we believe it is an achievable and worthwhile goal."

But this is not a real compromise. Rather, it's a tacit endorsement of the use of DRM for censoring security researchers. Because the argument is not about to what degree such use is acceptable, but whether such use is appropriate at all. It's not, but this legitimizes the idea that it is.

Remember: it's only illegal to circumvent DRM due to copyright law, which is not supposed to have anything to do with the act of exploring and researching software and publishing findings about how it functions. On paper, that's a side effect (though obviously a happy and intentional side effect for many DRM proponents). The argument at the W3C did not start because of an official plan to give software vendors a way to censor security research, but because that would be the ultimate effect of EME in many places thanks to copyright law. Codifying a set of practices for permissible security disclosures might be "better" than having no exception at all in that narrow practical sense, but it's also worse for effectively declaring that to be an acceptable application of DRM technology in the first place. It could even make things worse overall, arming companies with a classic "they should have used the proper channels" argument.

In other words, this is a pure example of the often-misunderstood idea of an exception that proves a rule -- in this case, the rule that DRM is a way to control security researchers.

Of course, security research isn't the only thing at stake. Cory Doctorow was active on the mailing list in response to the announcement, pointing out the significant concerns raised by people who need special accessibility tools for various impairments, and the lack of substantial response:

The document with accessibility use-cases is quite specific, while all the dismissals of it have been very vague, and made appeals to authority ("technical experts who are passionate advocates for accessibility who have carefully assessed the technology over years have declared that there isn't a problem") rather than addressing those issues.

How, for example, would the 1 in 4000 people with photosensitive epilepsy be able to do lookaheads in videos to ensure that upcoming sequences passed the Harding Test without being able to decrypt the stream and post-process it through their own safety software? How would someone who was colorblind use Dankam to make realtime adjustments to the gamut of videos to accommodate them to the idiosyncrasies of their vision and neurology?

I would welcome substantive discussion on these issues -- rather than perfunctory dismissals. The fact that W3C members who specialize in providing adaptive technology to people with visual impairments on three continents have asked the Director to ensure that EME doesn't interfere with their work warrants a substantive reply.

For the moment, it doesn't look like any clear resolution to this debate is on the horizon inside the W3C. But these latest moves raise the concern that the pro-DRM faction will quietly move forward with making EME the norm (Doctorow also questioned the schedule for this stuff, and whether these "best practices" for security research will lag behind the publication of the standard). Of course, the best solution would be to reform copyright and get rid of the anti-circumvention laws that make this an issue in the first place.

Filed Under: browsers, drm, eme, exceptions, html 5, research, security
Companies: google, w3c

Court Tells Family Services Worker 'I Don't Approve Of Your Lifestyle' Isn't A Valid Warrant Exception

from the seize,-search,-judge... dept

A very interesting (read: wtf) case from Texas [PDF] -- one that resulted in criminal charges of official oppression against a Dept. of Family and Protective Services employee -- posits that there may be yet another warrant exemption: the "I don't approve of your lifestyle and/or choices" exception.

This "exception" has often been used by actual parents when searching rooms/electronic devices of their children, but private searches usually don't violate the Fourth Amendment. Searches using the same moral prerogative, when performed by agents of the state, do.

The case involves a warrantless search of a 15-year-old's cellphone by Natalie Reynolds, a Department supervisor. The Sheriff's Department located the runaway teen (referred to only as "A.K." throughout the decision) and turned her over to Reynolds. Reynolds confiscated A.K.'s personal belongings, including her cellphone, which she then decided to search for a number of stated reasons -- none of which was allowable under state case law, much less the Supreme Court's Riley decision.

The Riley decision is only referenced in a footnote, as the illegal searches were performed in 2012, roughly two years before the Supreme Court arrived at its conclusion. But that didn't prevent the court from finding state precedent that upheld Reynold's conviction.

Reynolds' coworkers provided plenty of testimony against her, rebutting her assertion that her search and seizure of the teen's cellphone was somehow related to finding A.K. somewhere to live.

Kenny Stillwagoner, formerly with the Department, testified that he believed Reynolds, Ross, or both of them, took possession of A.K.’s cell phone without her consent. He also testified that Reynolds remained in possession of the cell phone because she believed it contained contact information for drug dealers. In addition, Edie Diane Fletcher, also formerly with the Department, testified that, when she contacted Reynolds about the situation regarding A.K.’s cell phone, Reynolds explained to her that she could not return the phone to A.K. because she believed A.K.’s cell phone contained contact information relating to drug dealers and that “they” needed to “finish their investigation.”

A.K. testified that she became very upset when Ross and Reynolds refused to return her cell phone and that both Ross and Reynolds looked through her cell phone. Further, A.K. testified that Ross and Reynolds retrieved information from her cell phone relating to Steve Lamb and Michael Watts, and there was no evidence presented that either of these men was considered as a potential placement option for A.K. In fact, A.K. had little, if any, information as to why she was questioned about her relationship to either man.

Reynolds tried to argue that her warrantless search of the cellphone was also somehow related to "exigent circumstances" -- that there was an "emergency regarding A.K.'s physical and emotional wellbeing." The state itself disagreed with Reynold's assertion.

The State maintains that Reynolds, as a representative of the Department, cannot claim that she acted in loco parentis or as A.K.’s de facto parent because she was “not acting as a ‘parent’ when she was searching [A.K.’s] phone. Instead, she was clearly acting as an investigator attempting to build a case for either herself or law enforcement.” The State points to Reynolds’ affidavit, arguing that it “reads like a veteran police detective interrogating a criminal suspect.”

Rather than show her purported concern for A.K.'s wellbeing, Reynolds spent most of her time with A.K. questioning her about drug use, drug paraphernalia, and drug sales. Also, contrary to her stated concerns about A.K. having no place to go, the state points out that a placement facility had already been found at the point Reynolds decided to take A.K.'s phone and search it for "drug evidence."

The court notes that there are a wealth of warrant exceptions available to state agents when performing searches. Reynold's opinion of A.K.'s lifestyle, however, isn't one that's been recognized by any court -- or anyone possessing a modicum of common sense, actually.

Based on precedent and this record, we conclude that A.K. had a reasonable expectation of privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known to use drugs and was allegedly having inappropriate relationships with adult men, that somehow changed A.K.’s expectation of privacy in her phone.

That's not how the Fourth Amendment works. And Reynolds' narrative about the phone's search somehow being related to caring for A.K.'s wellbeing doesn't hold up when compared to the facts.

Based on A.K.’s alleged behavior and lack of any known placement options at the time, Reynolds contends that she had an urgent responsibility to find A.K. a place to reside until the Department took custody of her and that she believed A.K.’s phone contained useful information that could assist her in that endeavor.

[...]

Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to continue in possession of the phone once a placement facility for A.K. had been located. A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions were not authorized.

The conviction for official oppression is upheld. Oddly, as is pointed out at FourthAmendment.com, this sort of behavior by law enforcement officers usually only results in suppression of evidence, rather than official oppression charges. Lots of wrongful arrests and warrantless searches would seem to fit the language of the statute once the officer's immunity has been stripped.

A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful…

And yet, this charge is almost never brought, much less successfully prosecuted -- yet another way law enforcement operates at a lower level of culpability than the rest of the government. And far, far lower than what is expected of the citizens they serve.

Filed Under: exceptions, family services, texas, warrants

Why Does The TPP Repeatedly Require Stronger Copyright, But When It Comes To Public Rights... Makes It Voluntary?

from the what's-up-with-that? dept

We've already written a few stories about the newly leaked IP chapter of the Trans Pacific Partnership (TPP) agreement, and how the US is pushing back against any attempt to punish abusers or to support the public domain. But in going through the documents, another key fact strikes me. Throughout the document it's designed to absolutely require strict copyright laws and enforcement. But when it gets to the public's rights, the so-called "limitations and exceptions," the agreement tosses up a big fat "meh, that one's voluntary."

We've already pointed out how ridiculous it is to refer to things like fair use as a "limitation and exception" to copyright, when it should be the public's rights -- and copyright restrictions are, by their very nature, a limitation and exception on those natural rights. But it's even worse in the TPP. As you may recall, the USTR announced, with great fanfare back in 2012, that "for the first time" it was moving to include such "limitations and exceptions" in the TPP. The USTR thought that this would appease people who had been complaining about the entirely one-sided pro-copyright extremist position that it had been pushing for decades. Of course, when the details came out it showed that the USTR was really proposing a limit on fair use by proposing a rule that would act as a ceiling for the kind of fair use-like protections for the public that would be allowed.

Now, with the latest leak, there's something else that's noteworthy. Here's the text of the "limitations and exceptions" clause in the copyright section:

Article.GG.Y {Limitations and Exceptions}

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.

Notice the text I bolded: "shall endeavour." In other words, "well, you can try for it, but you don't need to do it." Now, look at basically all of the other text and it's straight up "shall." No "shall endeavour" for everything else. Everything else is required. Only the stuff about the public's rights lets countries not do it so long as they claim they tried. Here, just for comparison's sake, are just a few of the other "shall's":

Article QQ.G.1: {Copyright and Related Rights/Right of Reproduction}

Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms in any manner or form, including in electronic form.

And...

each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

And...

Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available of the original and copies of their works, performances, and phonograms through sale or other transfer of ownership.

And...

Each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer is also required.

Etc. etc. By my count, the copyright section includes thirteen "shall provide" and just the one measly "shall endeavour." And if you add in the enforcement section you get another thirty eight "shall provide" and just a single "shall endeavour" buried in a footnote unrelated to the key points in the document.

So, for those of you playing along at home, the message being sent by the TPP is pretty damn clear: when it comes to ratcheting up copyright and setting the ground rules for enforcement everything is required and every country must take part. Yet, when it comes to protecting the rights of the public and making sure copyright is more balanced to take into account the public... well, then it's optional.

I guess that's what happens when the public is not allowed a seat at the table, but the industry representatives get full time access to the document and the negotiators.

Filed Under: copyright, exceptions, fair use, limitations and exceptions, public rights, tpp, ustr

How The DMCA And Anti-Piracy Measures Conspire To Keep Video Games In Their Cultural Place

from the that-belongs-in-a-museum dept

For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.

Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.

Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.

The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as "always online," with copyright protections essentially amounting to a check in with servers not in the consumer's control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.

Now, let's leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let's also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let's focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.

I've long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you'll be at it quite a long time before you find anything meaningful. Netflix doesn't count, because you aren't buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn't lost when that sort of thing happens, as it can be found and curated in other forms. That's not the case with old and classic games.

You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.

The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”

In fact, as the EFF points out, “hacking” in and of itself is completely legal.

“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”

And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.

Filed Under: anti-circumvention, copyright, dmca, exceptions, triennial review, video games

Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'

from the it's-free-speech dept

This week is Fair Use Week, according to the Association of Research Libraries, and that's as good a time as any to remind everyone that it's wrong to refer to fair as merely a "limitation or exception" to copyright law -- or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to "fair use" as a "safeguard" of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around. If we are to protect the First Amendment, and not allow for speech to be stifled, at the very least, we need a greater recognition of the importance of fair use in guaranteeing that the First Amendment's principles of free speech are allowed to thrive.

Freedom of expression is a right that may not be abridged by the government -- except in a few narrowly defined cases. Copyright is one of those cases -- and we can argue about whether or not that's appropriate, but at the very least, it's important to shift our view from thinking "copyright" is the norm and that fair use is a small "exception," to one where we recognize that free expression is the norm, with fair use making sure that freedom of expression is enabled, even when copyright is present.

Unfortunately, too many powers that be in legacy industries have sought to flip this equation. They deny that fair use is a right -- insisting it is merely a "defense" to infringement. While it is true that under current law, in order to be able to demonstrate your fair use rights, you need to raise it as an affirmative defense to an accusation of copyright infringement, that does not diminish the fact that fair use is simply a procedure for guaranteeing your First Amendment rights. It is not a small issue that's only important in academic debate, but rather a central issue that determines just how strongly we, as a society, believe in the First Amendment.

Finally, how could we conclude a post on fair use without including some fair use in it? How about this video, misleadingly called The Infringement Melody (Section 107 of the Copyright Act clearly states that "the fair use of a copyrighted work... is not an infringement of copyright"), which appears to be a student project to come out of a popular Yale class on Law, Technology and Culture, in which fair use is a big part of the curriculum: F-A-I-R U-S-E... find out what it means to me! Also, be on the lookout for tomorrow's podcast... all about fair use as well.

Filed Under: defense, exceptions, fair use, fair use week, first amendment, free speech, right

Proposed Florida Body Camera Law Riddled With Exceptions At Behest Of Police Union

from the protections-that-only-protect-bad-cops dept

Florida's legislators are pushing through bills mandating body camera use by the state's law enforcement officers. So far, so good, except for the fact that law enforcement officers aren't really looking for greater transparency or accountability, at least not according to Florida Police Benevolent Association chief Gary Bradford.

Sen. Chris Smith was unable to slide his bill past the first panel review until concessions had been granted to soothe Bradford's "worries."

“Our concern is if the camera is on, and it’s required to be on through the entire shift, then it will capture video and audio when you have roll calls or when you’re walking down the hallway or just as you’re go through your day. You’re on a lunch break, you’re in the privacy of your own car with your partner, you’re having a conversation about having a fight with your wife in the morning, or something along those lines, and we just think those things are private, and they shouldn’t be part of the discussion,” said Bradford.

Except that's not the extent of the exceptions being granted to supposedly ensure the public won't be allowed to eavesdrop on officers' private discussions of their domestic disputes. Instead, the new language provides several options for law enforcement agencies to abuse to deny responses to public records requests.

PCS/SB 248 creates a public records exemption for an audio or video recording made by a law enforcement officer in the course of the officer performing his or her official duties and responsibilities, if the recording:

Is taken within the interior of a private residence;
Is taken on the property of a facility that offers health care, mental health care, or social services;
Is taken at the scene of a medical emergency;
Is taken at a place where a person recorded or depicted in the recording has a reasonable expectation of privacy; Shows a child younger than 18 years of age inside a school or on school property; or
Shows a child younger than 14 years of age at any location.

Taken without context, the list of exceptions seems reasonable. But match it up with recent events, and you can see where this set of exceptions could easily nullify this tool of accountability.

Medical emergency exception? Sure, HIPAA and other related laws make medical events and history very private information, subject to several sharing restrictions. But what if a cop is called to assist someone who's suffering a medical emergency or is suicidal or suffers from mental illness? Far too often, a call for help is answered with violence. Under this exception, the underlying medical emergency prompting the police response would allow law enforcement agencies to withhold captured body cam footage.

The exceptions devoted to minors would allow law enforcement agencies to withhold the sort of damning footage that contradicted the Cleveland police narrative in the shooting of 12-year-old Tamir Rice. Without this footage, the public would have been left to rely on the CPD's claims that Rice refused to comply with multiple orders to put his hands up and "made a move towards his waistband," ultimately resulting in his being shot to death by responding officers. A park surveillance camera recording showed what actually happened: two police officers drove across the park, stopping within feet of Tamir Rice and and shot him within two seconds of arrival.

ACLU Florida's Michelle Richardson says these exceptions are blank checks for LEO opacity and abuse.

"If this was really about privacy, it would apply to what officers can practically release on their own as well," Richardson says. "So this is really just about shielding police misconduct. If police want to control the narrative, they can release what they want."

While not nearly as restrictive as the LAPD's policy of only releasing body cam footage to parties involved in criminal or civil court proceedings, it's still a recipe for disaster. Florida has laws in place that already restrict the release of police-captured recordings and this pile of exceptions -- while facially well-intentioned -- allows agencies to further dodge accountability for their officers' misdeeds.

Filed Under: body cameras, exceptions, florida, police