Another Nail In The Coffin For Fair Use: TVEyes Agrees Not To Carry Fox News

from the disappointing dept

The saga of TVEyes and its battles for fair use is over, and unfortunately fair use has lost. Following the news that the Supreme Court had refused to hear its appeal of a weird and troubling ruling by the 2nd Circuit, the company has now ended its ongoing lawsuit with Fox by agreeing to no longer carry Fox News content on its service.

If you don't recall, TVEyes was a very useful media monitoring service used by tons of journalists and politicians to effectively search and find content that was airing on TV. Fox had sued, claiming that this was both infringement and a violation of the obsolete "hot news" doctrine. The court easily rejected the hot news claim, and the district court originally (and correctly) found in favor of TVEyes, saying that its service was clearly fair use (even as it was being used for profitable purposes). The key point: TVEyes was transformative. It wasn't offering a competing service, but rather (similar to Google books) helping people search and find content that they might not otherwise find.

A later ruling, however, found that only parts of TVEyes service was truly fair use. It could archive content -- but allowing downloading and sharing of clips failed the fair use test. Eventually, that resulted in an incredibly restrictive permanent injunction against the company, and an appeal that favored Fox News, again focusing on the feature that allowed users to download and share clips.

That's what was petitioned to the Supreme Court, and having lost that, TVEyes faced an expensive lower court process to determine how much it would need to pay in damages. This settlement, and an agreement to drop Fox News from its service entirely, avoids that.

From a "public good" perspective, however, this is a horrific result. It means that copyright will make it that much more difficult for the media and politicians to follow and report on what Fox News is doing. While anyone can watch and record Fox News itself, losing the useful features of TVEyes will surely make it that much more difficult for there to be effective media monitoring of the cable news network. That's not a good public policy result. Indeed, this case really has little to do with copyright at all. Again, TVEyes was not competing with Fox News in anyway, but copyright has now been used to make it that much more difficult for anyone to hold Fox News accountable.

And at a time when there is growing evidence of the role that Fox News in particular has played in today's societal mess, that seems like a huge loss for society.

Filed Under: commercial use, copyright, fair use, media monitoring, supreme court
Companies: fox, tveyes

The FBI Says It Can Neither Confirm Or Deny Social Media Monitoring Programs It Publicly Secured Contracts For

from the who-are-you-going-to-believe,-us-or-your-lying-search-results? dept

It's no secret the FBI engages in social media surveillance. It has a contract with Dataminr to sift through tweets directly from Twitter's firehose. For years it has engaged in suspicionless pre-investigation "assessments," which compile every publicly-available piece of information the agency can gather without a warrant or subpoena. (Assessments also allow the agency to gather info from law enforcement-only databases, but that's not the issue at hand here.) From this starting point, the FBI can decide whether or not the person it targeted in its non-investigation investigation is worth investigating.

Public posts on social media services have zero expectation of privacy. All the same, one likes to believe the government has better things to do with its limited resources than scour the public-facing web for unlawful tweets or whatever. Clearly, the software the agency uses limits manpower expenditures while allowing the feds to act as unseen followers/friends of thousands of people's social media timelines, but it's still haystacks someone needs to make sense of.

The FBI's social media surveillance is an open secret. Of course, now that it's being pressed for details by the ACLU, it's trying to pretend it has no idea what everyone -- including the FBI -- is talking about.

In recent years, the federal government has significantly ramped up its efforts to monitor people on social media. The FBI, for one, has repeatedly acknowledged that it engages in surveillance of social media posts. So it was surprising when the bureau responded to our Freedom of Information Act request on this kind of surveillance by saying that it “can neither confirm nor deny the existence of records.”

The six other federal agencies we submitted the FOIA request to haven’t produced a single document. The request, filed last May, seeks information on how the agencies collect and analyze posts from Facebook, Twitter, and other social media sites.

It's been more than eight months since the ACLU asked for records. All it's received is categorical non-denial. So, the ACLU is suing the agency (and a few others) to force the release of these records. The FBI's public acknowledgment of its surveillance really isn't going to help it keep these records hidden. Here are a few publicly-available resources that suggest the FBI should be able to do far more than pretend it can't say anything at all about its social media surveillance programs. From the lawsuit [PDF]:

DOJ and its component agencies use social media surveillance for law enforcement purposes. In 2012, the FBI sought information from contractors on a planned automated tool that would enable the FBI to search and monitor information on social media platforms. The FBI also revealed in November 2016 that it would acquire social media monitoring software that would give it full access to Twitter data, searchable using customizable filters “tailored to operational needs.” Federal Bureau of Investigation, Requisition Number DJF17-1300-PR00000555, Limited Source Justification at 1 (Nov. 8, 2016).

News reports further indicate that the FBI has established a social media surveillance task force. See Chip Gibbons, “The FBI Is Setting Up a Task Force to Monitor Social Media,” The Nation, Feb. 1, 2018. The purpose and scope of the task force remain unclear.

Why should we care if the government is sweeping up content from our public social media accounts? Well, because of the side effects, which include damage to First Amendment protections and the possibility of finding yourself in the custody of government agents thanks to their innate inability to consider comments in context.

Online speech is generally subject to the full protections of the First Amendment and should not serve as the basis for surveillance, investigation, or other adverse government actions, like placing people on watchlists. Government surveillance and retention of online speech without any connection to the investigation of actual criminal conduct makes it more likely that innocent people will wrongly be investigated, surveilled, or watchlisted. Additionally, public awareness that the government systematically monitors social media discourages the expression of disfavored or potentially controversial speech, which the First Amendment protects.

The FBI -- and other federal agencies -- need to let the public know what they're doing with all this "public" information. If they feel the lack of privacy protections makes it ok to engage in widespread monitoring of social media accounts, the least they can do in return is explain how this information will be used and what safeguards, if any, are in place to deter abuse or erroneous investigations.

Filed Under: fbi, foia, media monitoring, social media, transparency
Companies: aclu

NYPD Social Media Monitoring Policy Allows For Use Of Aliases, Has Exceptions For Terrorist Activity

from the overall:-not-terrible,-would-hesitantly-recommend dept

Recently, in an article discussing the arrest of a Brooklyn teenager for emoji-riddled "terroristic threats" (who is now free after the grand jury declined to return charges), I wondered just how "routine" the NYPD's stated "routine Facebook monitoring" was. Now, thanks to a FOIL (Freedom of Information Law) request by Chase Pashkowick of MuckRock, we have at least a partial answer.

The policy [pdf link] -- Use of Social Networks for Investigative Purposes -- is still in force, which makes it somewhat of a miracle the intensely secretive NYPD released it at all. The policy states that the NYPD can freely access any information available publicly -- i.e., from any service not requiring a login or email account to view content.

It also allows officers and investigators to dig even deeper by utilizing aliases. Or as MuckRock puts it, the NYPD has a license for catfishing.

The operations order seeks “to instill the proper balance between the investigative potential of social network sites and privacy expectations." There is no prior authorization required to review publicly accessible information, such as party announcements blasted across Facebook or Twitter. But NYPD officers must seek approval before logging into social networks using any online identity other than their own.

Such requests for an online alias must pass two levels of supervisory, letterheaded scrutiny. This includes a supervisor’s official sign-off on the username itself as well as the proposed profile photo, although the policy does not parse acceptable from forbidden photograph sources.

There are nine steps officers must follow if they wish to utilize an alias.

2. Evaluate request to determine whether an online alias would serve an investigative purpose, and if so, prepare Typed Letterhead requesting an online alias to bureau chief/deputy commissioner concerned.

3. Include on Typed Letterhead:

a. Purpose for the request type of investigation, etc.)
b. Tax registry number of requesting member
c. Username (online alias)
d. Identifiers and pedigree to be utilized for the online alias, such as email address, username and date of birth.
(1) Do not include password(s) for online alias and ensure password(s) are secured at all times.
e. Indicate whether there is a need to requisition a Department laptop with aircard.

4. Review photograph to be used in conjunction with online alias, if applicable.

a. Consider the purpose for which the photograph is being used and the source of the photograph.
b. Attach a copy of the approved photograph and indicate on Typed Letterhead how photograph was obtained.

5. Forward request to commanding officer for review.

6. Review request(s) and consider the purpose and whether granting approval would serve an investigative purpose.

7. Endorse request(s) indicating within one day of original request and if APPROVED, immediately forward approval to bureau chief/deputy commissioner concerned, through channels, for informational purposes.

8. File copies of requests in command.

9. Maintain record of online alias in case records management systems or appropriate Department records.

10. Maintain folder for each APPROVED online alias.

a. Designate an administrator for the online alias.

All in all, a pretty tightly controlled system... unless terrorism is afoot, at which point the rules loosen up a bit.

11. Immediately contact Intelligence Division, Operations Desk supervisor and provide details regarding proposed investigation.

12. Determine if investigation should be conducted by the Intelligence Division and proceed accordingly.

13. Notify requesting supervisor to proceed with investigation if it has been determined that the investigation will not be conducted by the Intelligence Division.

14. Comply with steps 2 through 10 as appropriate, if investigation will not be conducted by the Intelligence Division.

It would appear that the Intelligence Division can take this alias request and run with it, most likely subject to a minimum of oversight. If they turn it down, it's back to the previous page of rules and the stricter controls.

If there are exigent circumstances (a handy term of art that is often deployed to assure exceptions swallow rules), all an officer needs to do is "confer" with the Intelligence Division and follow its instructions. If it's not both "exigent" and "terrorist-related," then it's back to the nine-step approval process.

The policy also includes sensible rules for officers using NYPD internet connections and computers, including the admonition that every alias bears the risk of being exposed. To that end, investigators are instructed to use department laptops with aircards to help ensure an anonymous connection. They are also told to avoid using names and email addresses that can be traced back to the department, as well as to exercise the common sense Rules of the Internet: be wary of clicking links, delete spam rather than reading it, never open attachments unless you can verify who sent it, and avoid using home/public connections/computers to conduct police business.

The social media monitoring policy also pays lip service to the Handschu Agreement the department's so-called "Demographics Unit" killed off in its pursuit of all things Muslim. The guidelines were meant to prevent the surveillance of non-criminal, politically-focused activity. The former CIA operative who headed the new surveillance unit managed to carve out large exceptions to this agreement on the way to placing several NYC mosques under round-the-clock watch. While it's nice to see a hat tip in its direction, it's a meaningless paragraph that only gives the document an air of First Amendment respect -- and only to those who are unfamiliar with the NYPD's neutering of this agreed-upon protection. Those inside the exception-to-all-rules Intelligence Division already know these words mean nothing. Most of those monitoring social media for anything terrorist-related know this as well.

But given the department's not-so-secret affection for all things surveillance, the policy is surprisingly restrictive. Whether it's actually followed to the letter is still an unanswered question.

Filed Under: aliases, fake profiles, media monitoring, nypd, social media, terrorism

Big Win For Fair Use (Even When For Profit), Big Loss For 'Hot News' & Fox

from the good-news dept

Well, here's a nice surprise. The Federal Court in the Southern District of NY has issued another very nice ruling on copyright issues relating to fair use. As we'd mentioned last year, Fox had sued the company TVEyes claiming copyright infringement. TVEyes is a media monitoring company that records tons of TV and radio, creates transcripts of it all and makes it searchable for internal use. Customers include the White House, Congress and a variety of news services, including the NY Times. Fox is Fox. It insists that what TVEyes is doing is infringement and that it violates the hot news doctrine (the silly, obsolete, court-made law that says news reporters have some non-copyright proprietary right to breaking news they first publish).

Judge Alvin Hellerstein, however, is not buying Fox's argument. Why? Fair use. The Court goes through the typical four factors test and finds them to pretty squarely put TVEyes' usage into the "fair use" camp.

1. Purpose and character of the use: Goes to TVEyes following a very long discussion. Even though it's a "for profit" company, the court says that its transformative and fits with the stated purpose of fair use. The court relies heavily on the recent book scanning decisions that found that scanning full books to make searchable indexes is transformative fair use. That's good. It also points to the recent Swatch v. Bloomberg case, in which a full transcript of an investor call was considered fair use, even if for commercial reasons. The court admits that the Meltwater case may be the one that goes against this, but notes that it's basically the only one (adding emphasis to our belief that Meltwater was decided incorrectly). The growing consensus appears to be that indexing content to make it more findable is transformative fair use, and the court agrees in this case:

   I find that TVEyes' search engine together with its display of result clips is transformative and "serves a new and different function from the original work and is not a substitute for it." ... In making this finding, I am guided by the Second Circuit's determination that databases that convert copyrighted works into a research tool to further learning are transformative. TVEyes' message, "'this is what they said' -- is a very different message from [Fox News'] -- 'this is what you should [know or] believe.'" ... TVEyes' evidence, that its subscribers use the service for research, criticism, and comment, is undisputed and shows fair use as explicitly identified in the preamble of the statute.

   
   
2. The nature of the copyrighted work: Here the judge finds neither side wins the fair use debate. Basically, he says "where the creative aspect of the work is transformed, as is the case here, the second factor has limited value."
   
   
3. The amount and substantiality of the portion used: Once again, neither side wins. The court says, yes, obviously, TVEyes is using all of Fox's TV content, but rather than taking the simple way out, recognizes (as other courts have) that this is really not about the total amount used, but the amount used in relation to the amount necessary to use. And thus, in this case, using everything is necessary, given what TVEyes is trying to do. As the court notes, "TVEyes' service requires complete copying twenty-four hours a day, seven days a week."
   
   
4. The effect of the use upon the potential market for the value of the copyrighted work: This one goes to TVEyes again. As the court notes, the economic harm here has to be based on whether or not TVEyes is acting as a substitute, and not based on any economic harm created by the transformative use (i.e., not from a market that Fox isn't serving). The court notes that Fox speculates that people might use TVEyes to avoid watching Fox directly, but has no evidence to support that: "Fox News' allegations assume that TVEyes' users actually use TVEyes as a substitute for Fox News' channels. Fox News' assumption is speculation, not fact. Indeed, the facts are contrary to Fox News' speculation." More specifically:

   First, none of the shows on which Fox News' suit is based remain available to TVEyes subscribers; TVEyes erases content every 32 days. Second, in the 32 days that these programs were available to TVEyes' subscribers, only 560 clips were played, with an average length of play of 53.4 seconds and the full range of play being 11.5 seconds to 362 seconds. Of the 560 clips played, 85.5% of the clips that were played were played for less than one minute; 76% were played for less than 30 seconds; and 51% were played for less than 10 seconds. One program was not excerpted at all. The long term TVEyes statistics are consistent with the specific statistics of the 19 programs. From 2003 to 2014, only 5.6% of all TVEyes users have ever seen any Fox News content on TVEyes. Between March 31, 2003 and December 31, 2013, in only three instances did a TVEyes subscriber access 30 minutes or more of any sequential content on FNC, and no TVEyes subscriber ever accessed any sequential content on FBN. Not one of the works in suit was ever accessed to watch clips sequentially. The record does not support Fox News' allegations. Fox News fails in its proof that TVEyes caused, or is likely to cause, any adverse effect to Fox News' revenues or income from advertisers or cable or satellite providers.

   It goes on in that nature for some time. And then concludes: "No reasonable juror could find that people are using TVEyes as a substitute for watching Fox News broadcasts on television. There is no history of any such use, and there is no realistic danger of any potential harm to the overall market of television watching..."

Given all that, the victory goes in a landslide to TVEyes on fair use grounds -- with one exception:

However, I do not decide the issue of fair use for the full extent of TVEyes' service, TVEyes provides features that allow subscribers to save, archive, download, email, and share clips of Fox News' television programs. The parties have not presented sufficient evidence showing that these features are either integral to the transformative purpose of indexing and providing clips and snippets of transcript to subscribers, or threatening to Fox News' derivative businesses.

So that part of the case is likely to go forward (though it may wait while Fox appeals the other part).

The court also tosses out the hot news claim, saying that it's preempted by the copyright claim, and Fox News' attempt to double dip via hot news won't be allowed. It cites a case that says if you're just reposting factual information, it's covered by the Copyright Act. The court notes for TVEyes to run afoul of the hot news doctrine, it would need to be "free riding" in a manner designed to "scoop" Fox's efforts, rather than accurately covering what Fox is broadcasting. "TVEyes is not a valuable service because subscribers credit it as a reliable news outlet, it is valuable because it reports what the news outlets and commentators are saying and therefore does not "scoop" or free-ride on the news service."

In the end, it's a good ruling for fair use (and against hot news), though it seems likely that Fox will appeal.

Filed Under: copyright, fair use, fox news, hot news, media monitoring, sdny
Companies: fox, tveyes

Nielsen Decides It Can Become A Copyright Cop Too

from the media-monitoring-or-media-blocking? dept

As media companies continue their quixotic quest to some "stop" unauthorized use of content, tools providers are all too eager to rush in with promises of being able to help -- even if the tools don't actually help much. However, that's why there are a ton of "DRM" companies out there, all trying to provide the latest useless DRM tech to media companies too clueless to understand why DRM will never work. The latest is that companies are rushing to be the latest vendors to supply the entertainment industry with watermarking or filtering software to try to "stop" piracy. First there was the company Audible Magic, who the entertainment industry described as its magic bullet in stopping piracy. While some have pointed out that Audible Magic doesn't work particularly well, it has become something of the standard for companies to implement. In fact, it was something of a surprise earlier this year when Google decided to build its own filtering solution, rather than just use Audible Magic.

However, with so much demand for Audible Magic's non-working solution, you knew others had to jump in -- and some of them would be big players. The big media monitoring firm Nielsen is now entering the space with a big announcement, suggesting that its knowledge and connections within the television world will help it dominate the market. Of course, there doesn't seem to be much discussion on how Nielsen's solution is likely to be just as useless as Audible Magic's or anyone else's in trying to "stop" unauthorized copies from getting online. Of course, the entertainment companies remain too clueless to realize that all of these vendors are simply robbing them blind, promising them a magic elixir that can never work and only distracts the companies from what they should be doing: adapting to the changing market with new business models. In the article about Nielsen's announcement, NBC Universal's general counsel, Rick Cotton, declares that Nielsen's entrance is a game changer: "The point is the big boys are coming, and that signals that this is a field that has reached technological maturity. It will achieve widespread commercial adoption, and from a content point of view, it will contribute dramatically to reducing the easy theft of copyrighted material online."

We'll record that here and check back in the future to see how accurate he is. I have no doubt that these technologies will achieve widespread commercial adoption -- but only because folks like Cotton actually believe that it will "dramatically" reduce infringement (which he incorrectly calls "theft"). Of course, Cotton is no stranger to outlandish and dramatic statements. He's the same guy who claimed that the cops were spending too much money on things like burglary and bank-robbing when they should be focused on important things like copyright infringement. He's also responsible for the totally ridiculous claim that movie piracy was hurting corn farmers. So, I'd take anything he says with a rather large grain of salt.

Filed Under: copyright, magic bullet, media blocking, media monitoring
Companies: nielsen