Australia's Prime Minister Supports Expanded Safe Harbor Protections Down Under

from the good-news dept

The history of copyright law in Australia is somewhat tortured, with the government there far too often bending the knee to entertainment industries both local and abroad. Still, while much of this history is fraught with protectionism reared intentionally, one of the more curious aspects of Australian copyright law appears to have originated as something of an accident. That aspect is that the kind of safe harbor protections that exist in America are rather limited in Australia. Specifically limited to commercial ISPs, as opposed to websites or institutions that provide internet access generally speaking. We'll get a bit more into how this came to be in a moment. We'll start instead with news that recently offered amendments to copyright law in the country that would shore up safe harbor protections more generally have received the support of Australian Prime Minister Malcom Turnbull.

To solve this problem and put Australia on a similar footing to technology companies operating in the United States, proposed amendments to the Copyright Act will see all of the above receiving enhanced safe harbor protections while bringing the country into compliance with AUSFTA.

But for now, momentum appears to be shifting in favor of the technology platforms. A report in The Australian (paywall) indicates that Prime Minister Malcolm Turnbull has given the safe harbor amendments his support. It won’t be all plain sailing from here, however.

And that rocky road to harmonizing Australian copyright law with the EU and America is being laid by the usual entertainment industry suspects, whose objections are familiar tropes. Music and entertainment groups are complaining that offering safe harbor protections to such unworthy entities as schools and libraries, along with websites like Google and Facebook, amounts to codifying piracy. That's silly for all the reasons you should already know, but which can be best stated as it being quite dumb, and immoral, to saddle a third party with the guilt of a pirate just because it's an easier and more lucrative target. Because that's all this opposition amounts to: the desire to sue a school if a student infringes copyright. Or Google. Or a museum that provides internet access. This is what the entertainment industry wants to go to bat over.

But this gets really dumb when you consider that the lack of safe harbor protections in question was the result essentially of a poor choice of words over a decade ago.

The problem in Australian arose in the implementation of AUSFTA when the term “carriage service provider” (a technical terms for telecommunications companies and ISPs) was used rather than the wider “service provider” definition in the treaty.

“This places Australia at a competitive disadvantage” says Trish Hepworth. “Australian providers of common activities - transmitting data, caching, hosting and referring users to an online location – lack the protections and certainties enjoyed by their overseas competitors. It places schools, universities and libraries in a risky position as they go about their everyday business. ”

Reformers have been trying for ten years to correct this error, but they have been stymied at every turn by entrenched industry lobbyists. But now, with the Prime Minister throwing his weight behind expanded protections, there's a road map for a change in the law. The Australian government will be holding Senate hearings to debate the amendments, and you can be sure that the entertainment industry will be well represented within them, but a PM endorsement is a big deal. Hopefully our Aussie friends will get this right.

Filed Under: australia, copyright, intermediary liability, malcolm turnbull, safe harbors, service providers

Post Gag Order, Lavabit Founder Reveals Non-Secret That Feds Were After Ed Snowden's Emails

from the the-least-surprising-news-ever dept

Want some unsurprising news? Apparently a three year gag order has just lapsed, allowing Ladar Levison, the founder and former operator of Lavabit, the secure email service Ed Snowden famously used, to finally say that yes, the feds asked him to turn over his encryption key in order to access Ed Snowden's emails.

Lavabit founder Ladar Levison can finally confirm that Edward Snowden was the target of the 2013 investigation, which led to the shutdown of the Lavabit email service. The original case concerned law enforcement’s authority to compel the disclosure of an SSL/TLS private key, which belonged to Lavabit, and was used to protect the communications of all 410,000 customers, when only one of those customers was the subject of a criminal investigation. After three years, and five separate attempts, the federal judge overseeing the case has granted Mr. Levison permission to speak freely about investigation. The recently delivered court decision unseals the vast majority of the court filings, and releases Mr. Levison from the gag order, which has limited his ability to discuss the proceedings until now.

Mr. Levison has consistently relied on the First Amendment in his court filings, which sought to remove the gag orders entered against him. He argued that such orders are an unconstitutional restraint against speech, and an afront to the democratic process. He plans to use his newfound freedom to discuss the case during a planned presentation on Compelled Decryption at DEF CON 24 in Las Vegas, NV.

Of course, the fact that the feds were after Snowden isn't exactly news. First off, it's what everyone assumed the second the site shut itself down. But, more importantly, earlier this year, a redaction failure revealed it directly: Still, it's good that the gag order has finally been lifted, and it's great that Levison is now going to talk about these issues more widely. He also notes plans to create a legal defense foundation to help with similar cases:

In order to continue the fight, Mr. Levison is forming the Lavabit Legal Defense Foundation (or “LavaLegal”), a non-profit organization founded to, among other things, protect service providers from becoming complicit in unconstitutional activities, and fight secret attempts aimed circumventing digital privacy or impinging upon the right of those involved to speak of the experience. The foundation will be funded by donations from people and organizations all over the world that want to help protect digital privacy and bolster our collective defense against government overreach.

Filed Under: doj, ed snowden, encryption, first amendment, gag order, keys, ladar levison, service providers
Companies: lavabit

EFF Ranks Service Providers For Who Stands Up To Copyright/Trademark Bullies

from the good-to-see dept

We've written in the past about the EFF's Who Has Your Back rankings, in which it looks at various internet companies to see who protects your privacy against governments and lawsuits. Now, the EFF has come out with an offshoot chart, looking at who has your back when it comes to bogus copyright and trademark demands. The only two companies that get a perfect score are Automattic/WordPress and NameCheap, as you can see on the full chart. The worst, somewhat surprisingly, is Tumblr, which scored a big fat zero out of the five listed items.

Automattic's Wordpress.com and NameCheap were the only two companies to receive five out of five stars. However, two other companies were recognized for going the extra mile: Etsy, for providing educational guides, and Twitter, for publishing regular and thorough transparency reports. Overall, 10 companies did not publish adequate transparency reports, highlighting an information black hole for consumers. Additionally, four companies missed a star for their counter-notice practices—a critical procedure for restoring content that may have been taken down without cause.

Twitter lost a point for not documenting the counternotice process. Etsy lost a point for failing to have a transparency report (something I'm guessing the company will do before too long). Facebook also doesn't have a transparency report -- though it does have one for government requests, so hopefully it will expand that to copyright and trademark takedown requests as well. YouTube lost points for not requiring a DMCA notice (thank you ContentID) before taking down content. Imgur also doesn't require a DMCA notice (which surprised me).

The EFF's original "Who Has Your Back" effort really did help shame many companies into upping their game in protecting the privacy of users from government requests. Hopefully this new one will do the same for copyright and trademark takedowns.

Filed Under: copyright, policies, service providers, trademark, who has your back
Companies: automattic, eff, etsy, facebook, imgur, namecheap, tumblr, wordpress, youtube

Congressional Moral Panic Over The Fact That Prostitutes Now Use Twitter

from the moral-panic-jackpot dept

Politicians seem to love nothing more than to go into full on grandstanding mode whenever you mix the internet and prostitution, leaving pretty much all facts by the wayside. This often results in massively exaggerated claims about the size of the (very serious) issue of human trafficking, but more bizarrely, it almost always seeks to put the blame on websites used by prostitution organizations.

Years ago, the target was Craigslist because prostitution rings used the site to advertise. The groups who organized this attack celebrated when they finally (based on no legal reason) hounded Craigslist into shutting down certain services, totally oblivious to the fact that this does absolutely nothing to stop prostitution. In fact, smart law enforcement folks realized that rather than blaming the online service providers, working with them would allow them to investigate and arrest lawbreakers. Shutting down those services doesn't lead to stopping any prostitution, it just makes it move elsewhere.

For example, after the attack on Craigslist, many just moved on to Facebook and Backpage. And, now, a breathless article in TheStreet (complete with obnoxious autoplay video! -- you have been warned) talks about the shocking fact that prostitutes also use Twitter. As if this is a surprise.

But, of course, the article comes complete with Congressional idiots grandstanding about how this is a "big problem" for Twitter:

Notified by TheStreet of its investigation that revealed that escort services were using Twitter, Rep. Chris Smith (R., N.J.) urged that Congress investigate. Smith sits on the subcommittee investigating human trafficking, which held hearings Monday on prostitution at sporting events, including this week's Super Bowl in New Jersey.

Addressing Ambassador-at-Large Luis CdeBaca of the U.S. State Department's office to monitor and combat human trafficking, Smith asked at the subcommittee hearing that he speak to U.S. Attorney General Eric Holder to initiate a crackdown on Twitter, Backpage, Craigslist and other social media "that are the conduit for this terrible exploitation of women."

Of course, the way you conduct a "crackdown" is to investigate those who are actually breaking the law: not the tools they use. But, of course, going after prostitutes is a lot less interesting than going after big famous internet companies. So guess who's getting dragged to Congress?

Following that meeting, Smith, who serves as chair of the House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights and International Organizations, said he plans to convene a House of Representatives subcommittee hearing later this year, and intends to ask Twitter executives to testify on Capitol Hill to address the issue.

"I'm going to look at putting together a hearing to focus on Twitter," Smith said. "We'll look to do a hearing very soon."

Much of the ridiculous TheStreet article focuses on the fact that they're shocked (shocked!) that Twitter hasn't magically found all of the prostitutes using Twitter and killed their accounts. Because, apparently, TheStreet reporter Jonathan Marino thinks that Twitter has staffers who sort through the profiles of all ~700 million active Twitter account holders and can tell which ones are prostitutes and which are not.

Filed Under: 3rd party liability, chris smith, congress, human trafficking, moral panics, prostitution, section 230, service providers
Companies: thestreet, twitter

Court Shelves Washington State Law That Would Turn Service Providers Into Criminals Based On Their Users' Behavior

from the good-move dept

Back in June, we wrote about a challenge -- from both the Village Voice's Backpage.com and the Internet Archive to a new law in Washington State, SB 6251, that effectively criminalized online service providers based on actions by their users. We've long talked about the problems of such secondary liability efforts, and thankfully the US has section 230 of the CDA that forbids most such efforts to apply secondary liability. And, indeed, the court has now granted a preliminary injunction against the law, citing the Section 230 issues, among other things. Basically, the court sides with Backpage and the Internet Archive on every issue here, finding the state's reasoning in support of the law to be weak.

There are some important points in this ruling. First up, the court said that Section 230 applied, even though this was about a criminal law issue, rather than a civil law issue. Many (even Section 230 supporters) have argued that Section 230 only applies to civil law. The court notes that the law says it doesn't apply to federal criminal laws, but says nothing about state laws. And, as such, CDA 230 should be seen to apply to state laws, even if they're criminal:

If Congress did not want the CDA to apply in state criminal actions, it would have said so.

So, the law is already on shaky legs due to it being knocked out by Section 230. However, the court goes further to focus on how the bill violates the First Amendment as well, targeting the suppression of speech. It's a pretty detailed explanation for how laws that target speech, rather than action, have a much higher bar, and this bill does not appear to meet that higher bar. Most importantly, the court recognizes that any laws targeting speech can have severe chilling effects, even on legal speech, and that's unacceptable under the First Amendment:

The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address

The court even notes that it could create chilling effects and potentially criminalize sites like Facebook and Twitter as well. While the state denied this possibility, the judge points out that it's entirely possible to read the law in that way, and that alone could create chilling effects from companies trying to avoid criminal liability. Finally, the court notes that the law also almost certainly violates the Commerce Clause, because it would regulate companies located entirely outside of Washington State.

In other words, the state is on very thin ice here, as the court isn't buying any of its arguments for why the statute is legal. At this point in the case, the discussion is just over whether or not an injunction is granted to block the enforcement of the law -- and that's now done. There's still much more to come in the case, but the law doesn't look likely to survive at this point, and that's a good thing. There are some real issues that the law seeks to take on (mainly dealing with prostitution and child porn), but it does so in such a broad way and with the wrong tool: criminalizing service providers. It's good that the courts are recognizing how this law is massively overbroad.

Filed Under: liability, section 230, service providers, washington state
Companies: backpage, internet archive

The Connection Between Wikileaks Censorship And PROTECT IP: Censorship Through Cutting Off Service Providers

from the this-is-a-problem dept

The always thought-provoking Yochai Benkler, has a new paper, which, unfortunately (and pointlessly given Benkler's key points -- see update below), is locked up behind an MIT paywall. It explores the "new vector" for censorship found in both the attacks on Wikileaks and the PROTECT IP Act: censorship by forcing service providers to not do business with certain websites. As the abstract notes:

The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of a new, extralegal path of attack aimed at preventing access and disrupting the payment systems and advertising of targeted sites. In this model, the attacker may be a government agency seeking to circumvent constitutional constraints on its power or a private company trying to enforce its interests beyond those afforded by procedural or substantive safeguards in the law. The vector of attack runs through the targeted site's critical service providers, disrupting technical services, such as Domain Name System service, cloud storage, or search capabilities; and business-related services, such as payment systems or advertising. The characteristics that make this type of attack new are that it targets an entire site, rather than aiming for removal or exclusion of specific offending materials; operates through denial of business and financial systems, in addition to targeting technical systems; and systematically harnesses extralegal pressure to achieve results beyond what law would provide or even permit.

As he notes, the law has historically focused on narrowly targeting any attack on speech by removing just the offending works. That's about the only way that such efforts could line up with the First Amendment (and some may reasonably even argue that point). Yet with government pressure from the likes of Senator Joe Lieberman and the new PROTECT IP Act, they now go for scorched earth policies in which a variety of service providers are suddenly pressured or required to no longer do business with the sites in question. Payment processors, "information location tools," ad networks and DNS providers are all told they have to cut off the offending site. While the site itself may not be touched, the goal is to effectively starve such sites out, by blocking most reasonable services that such a site needs to exist.

While putting tremendous compliance burdens on those third party service providers, it also goes against the very fundamentals of the First Amendment in that it doesn't merely seek to stop illegal speech, but takes a broad attack against entire sites. The risk here was clearly laid out earlier this year by over 100 law professors including many of the most respected in the field. The other side has only trotted out one lawyer on their side: Floyd Abrams (who, while famous as a First Amendment lawyer, also does a lot of work with Hollywood). Supporters of this massive threat to the First Amendment keep pretending that as long as they say "Floyd Abrams says it's fine!" that they can ignore everyone else raising serious and significant First Amendment concerns. The problem, of course, is that even Abrams' "support" is pretty weak.

In fact, if you read what Abrams actually says (pdf), at points he appears to come out against provisions of PROTECT IP as violating the First Amendment. Such as this:

Any bill providing injunctive relief should be limited to halting infringement and prohibiting future infringement online, not acting as a prior restraint on protected speech in the future. For example, if a site or domain is seized or blocked for infringement, operators must be free to post all their non-infringing content elsewhere, as well as on their original site, once the infringing content is removed.

Except, as we've seen with the Puerto 80 case, the government does not allow site operators to repost non-infringing content on their original site at all. Given that Benkler, in the paper above, compares PROTECT IP to the Wikileaks situation, it should equally come as no surprise that Abrams last year ran into some problems for misrepresenting Wikileaks' actions in trying to support censoring that site.

In the long run, I find it difficult to see how one can be intellectually honest and side with Abrams on these issues, as compared to Benkler, who makes a pretty compelling case that these kinds of attacks on free speech are something to be worried about.

Update: Benkler sends over a link to a non-paywalled version (pdf).

Filed Under: censorship, protect ip, service providers, third parties, yochai benkler

Did Japan And Korea Just Make Life Really Difficult For Any Cloud Service Provider?

from the does-the-length-of-the-wire-matter? dept

For a while we followed the important Cablevision remote DVR case, in which the entertainment industry argued that Cableivision offering a hosted DVR service for its users was infringing on their copyrights, even though DVRs are legal. The entertainment industry strained its credulity by arguing that because the DVR device was on Cablevision's property, rather than in someone's house (even though they functioned nearly identically), it completely changed the rules. They said that Cablevision required separate content licenses to offer such a service. Effectively, they were arguing that the length between the DVR and the TV determines whether or not there's infringement. That, of course, is ridiculous (though even more ridiculous was when they compared a DVR to murder).

Thankfully, the Second Court agreed and put forth a pretty good, if slightly awkward, ruling, which pointed out that it didn't matter where the device was, that time shifting is legal, and this service really seemed no different than a DVR. The entertainment industry (of course) appealed, but the Supreme Court refused to hear the case, so the law stands in the 2nd Circuit -- though with such a high profile case, one hopes that other Circuits would tend to defer to this ruling (though, they certainly don't have to).

Separately, we covered a very similar case in Singapore, involving RecordTV, which had trouble at the lower courts, but eventually came to a similar ruling as the US. In that case, the court even noted that allowing remote DVRs seems to provide benefits to society.

However, courts in other areas of the world apparently aren't quite as enlightened. Wonil Chung, an IP lawyer in Korea, recently sent over his excellent review of a number of similar cases from Korea and Japan where the rulings eventually all went the other way. The cases there all have their own specific details, but the general point was that the courts seemed to feel that if the equipment is housed and "owned" by the service provider, then the actions are done by the service provider... even if the end user is the one clicking the button. Effectively, those courts are saying that the length of the cable matters. Chung's analysis is balanced, and he notes that this can be a tricky issue. I agree that it's a complex issue that requires thinking through a variety of issues, but in the end, I have no problem saying that I believe the Korean and Japanese rulings defy common sense, while the US and Singapore rulings make sense.

Where it gets really important is understanding the wider implications of these rulings. Based on the rulings in Korea and Japan, it just became a lot more expensive and risky to set up any cloud-based service in either country. That's because these rulings effectively say that liability is determined by the location of the equipment, rather than the location of the user. Cloud-based services have the equipment hosted far away from the user. But does that really mean that the service providers have now taken on the liability? In Korea and Japan apparently the answer is yes, and that should put a chill through anyone building cloud-based offerings in either country.

Filed Under: dvrs, japan, korea, liability, remote dvr, service providers, singapore
Companies: cablevision, recordtv

German Appeals Court Says Video Hosting Platform Not Liable For User Uploaded Videos

from the chalk-one-up-for-proper-application-of-liability dept

Earlier this year, we wrote about a German lower court ruling that found YouTube liable for copyright infringement, for the actions of a user, uploading a Sarah Brightman song to the platform. As I noted at the time, this didn't make much sense at all, since there's simply no way for Google to know ahead of time whether or not the user has permission to upload a video. Putting the liability on the service provider is simply nonsensical. The week after that ruling came out, I actually was in Berlin, for Berlin Music Week/Popkomm/A2N, and led a session discussing the legal status of YouTube. It was quite interesting, and I talked with a lot of folks on all sides of the issue (some were... um... angrier than others). But one thing that I was told over and over again by folks is that there are some serious issues with German copyright law, which considers third party liability a perfectly normal thing (and demonstrating how ridiculous this is, one audience member angrily read aloud some incendiary comments -- one of which insulted Germans -- from Techdirt and told me I was liable for it under German law, and then demanded to know why I hadn't taken it down).

However, thankfully, it appears that not every court in Germany feels that this is what the law says, or that this is acceptable. Apparently, a few years back, the very same court that issued the YouTube/Sarah Brightman ruling also issued a similar ruling against a local video hosting site called Sevenload, saying that it was liable for infringing videos uploaded by users. However, it appears that the appeals court has now reversed that decision, and ruled that Sevenload should not be liable. After the jump, I've embedded an English translation of the ruling, but the key point is that the court found that since Sevenload is not active in selecting the content, it makes no sense to hold the company liable. It also laughed off the argument from the rightsholder that since it wasn't known who uploaded the video, it could have been an employee of Sevenload. The court notes that this argument was brought up too late (i.e., not in the lower court decision) and that the plaintiff didn't offer any evidence to support such an assertion.

One part I liked in the ruling is that the court pointed out that it should be common sense that user-created content is not from the company in question:

Furthermore, from other services on the Internet, Internet users are used to areas being set up in which users can participate, in particular discussion forums. The sensible Internet user does not, as a rule, regard these areas as the site operator�s own content for which the operator intends to take responsibility.

The court also cites other cases which noted online auction providers are not expected to review every auction before it goes up, "as this would call the entire business model into question." Similarly, the court finds it silly that a video hosting service should need to inspect each video. While certainly no guarantee, this appeals court ruling appears to bode well for Google's appeal of the Sarah Brightman ruling.

Filed Under: germany, liability, service providers, uploads, video
Companies: sevenload

Turns Out You Can't Sue SexSearch.com If The Girl You Met Via It Is Underage

from the well-that-makes-sense dept

Another day, another case where someone tried to blame a website for the actions of its users. In this case, a guy used the website SexSearch (seriously) to find someone to have sex with (ah, the internet...). The woman he met claimed in her profile that she was 18 years old. In reality, she was apparently only 14 -- and the guy was eventually brought up on statutory rape charges. In turn, he sued SexSearch, claiming that the site had a responsibility to verify the ages of its users -- something he failed to do himself. After a district court ruling tossed out the lawsuit, an appeals court has also tossed out the lawsuit, noting that none of the various 14 claims the guy brought against the site seemed to hold up under scrutiny. Basically, as the judge in the district court noted: "Plaintiff clearly had the ability to confirm Jane Roe’s age when he met with her in person, before they had sex, yet failed to do so." Thus, it's pretty difficult for him to then claim that it was the website's responsibility to accurately verify the age of participants.

Still, as Eric Goldman notes in the link above, the appeals court differed with the lower court on one point: saying that it wasn't dismissing the case for section 230 safe harbor reasons -- which ordinarily protect a service provider from the actions of its users. The lower court felt that 230 applied, but the appeals court feared that such a ruling would extend the coverage of section 230 "potentially abrogating all state- or common-law causes of action brought against interactive Internet services." I'm not sure I agree with that at all. No one is saying that safe harbors get service providers off the hook for illegal activities they perform. The point is that they should not be responsible for illegal actions performed by their users.

Filed Under: liability, service providers
Companies: sexsearch

Craigslist Pressured Into Policing Ads For Prostitution

from the misplaced-blame dept

We've talked plenty about how New York Attorney General Andrew Cuomo has been using legal threats to get companies to change business practices, even if those practices aren't illegal. But, he's not the only Attorney General who tries to make headlines with bogus legal threats. Neighboring Connecticut has Richard Blumenthal, who has similarly blamed companies for the actions of their users. First, it was Facebook for having sexual predators on the site, and then it was Craigslist for for having prostitution ads. You'll notice in all of these cases, the threats involve actions that are generally considered less than socially acceptable. This way, even though the companies being blamed are not liable and clearly protected by section 230 of the CDA (you would think, as AGs, Cuomo and Blumenthal would, I dunno, know the law...), the threat of bad publicity gets companies to cave.

And, in fact, it appears that Craigslist has, indeed, been pressured into agreeing to monitor postings on its websites to try to prevent prostitution ads. 39 other Attorneys General joined in with Blumenthal, so it's of little surprise that Craigslist agreed to do this, even though it seems pretty clear that the law was on its side. As a service provider, it is in no way responsible or liable for the content placed on its site. The law and various court rulings are pretty clear on that, but when you have 40 Attorneys General gunning for you, painting you as a proponent of prostitution, sometimes it makes sense to cave.

The most ridiculous thing, of course, is that this will do little to nothing to actually deal with the root issue. Prostitution will continue -- and it will continue online. Those who used Craigslist before will simply move on to other sites. In fact, those sites will be much trickier to find and track down, meaning that it now becomes much more difficult for authorities to crack down on the actual law breakers. In fact, we've noted that police say that Craigslist is a very useful tool in monitoring and cracking down on prostitution. And, now, to get some headlines about how these AGs were "tough" on prostitution, they've just taken that tool away from police, while opening the door to forcing Craigslist to have to monitor posts on its site -- something the law says the company need not do.

Filed Under: andrew cuomo, liability, richard blumenthal, service providers
Companies: craigslist