:Information Law and Policy Spring 10

I remember reading a TechCrunch article around the start of the year, which talked about how the EFF defended three anti H1-B websites that were taken down due to defamatory messages against Apex Technology Group, an IT staffing and consulting services firm. [For those not in the know, an H1-B visa enables foreign nationals to work full-time in American corporations] Here’s a link to the article: http://tcrn.ch/cUsg3T

There was some shocking language on display, and as the article demonstrates, it was decidedly racist, and promoted hatred. Why, one of the posts was an open threat: the author said he would “stop blogging” if a senior official in an Indian IT firm was killed. Armed with some (basic) legal knowledge, I decided to visit the EFF blog post to understand their stand better.

The core of their argument is this: should an entire website be taken down due a few defamatory messages? The First Amendment should apply, unless there is a “clear and present danger or a serious and imminent threat to a protected competing interest”, or less restrictive measures are not available. Aren’t these serious threats though? Or do they suggest that these exceptions don’t apply in case of foreign nationals?

A reference is also made to section 230, arguing that websites should be protected from claims against them due to information published by another “information content provider”. However, I am not convinced that propaganda websites in this example can be classified as an “access software provider”,  since they are essentially a forum for hate speech. Which also raises the question – when does free speech cross over to the dark side, and exhibit the properties of hate speech?

It seems as though EFF’s concern was based not so much on the actual content of the posts, but the fact that the entire website was taken down. The usual precedent was just taking down the questionable content from the website. However, the author of the EFF page (which can be found here: http://bit.ly/5S76b6) admitted that he hadn’t even read the disputed content.

Our readings for the Freedom of Expression lecture seemed to touch the issue, but none of them examined it in detail. The proceedings of the ACLU v. Mukasey case pointed to how content being objectionable was relative. Berman & Weitzner suggest that interactive media meant a lesser need for regulation – but doesn’t user controlled content introduce a bias of its own? The UN Joint Declaration asks us to differentiate between incitement and glorification of terrorism. If we adhere strictly to the definition of incitement here, we can find some justification for the NJ court’s ruling against the websites. However, the distinction may not always be that clear. The line between simply expressing one’s views and encouraging hatred is blurred, and the emergence of interactive media only means such occurrences would be more commonplace.

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Viacom is suing YouTube (therefore, Google) for 1 billion dollars for copyright infringement. The lawsuit has been going on for 3 years, but the many of the legal briefs and exhibits were just made public today, in particular internal emails.

Viacom argues that YouTube intentionally posted copyrighted content in order to increase the size of their audience. Google defends its actions that they have complied with DMCA by removing copyrighted content as soon as they are alerted of its presence. They have also built in a system for flagging copyrighted material. More recently they have created a filtering system called Content ID that automatically compares uploaded materials with copyrighted works in its library. Viacom is trying to prove that even though they created measures for removing copyrighted works, YouTube was actually encouraging copyright violations.

Viacom alleges not only that Google is guilty of secondary liability but of also posting copyrighted content intentionally. Like in MGM v. Grokster, internal company materials are being used as evidence to demonstrate that YouTube was not a passive infringer. They cite an email from one YouTube founder to another that essentially asks him to stop posting copyrighted videos because it will look bad when they are claiming that they are trying to minimize infringement: “Jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

YouTube, in turn, accuses Viacom of putting its own copyrighted materials on the site in order to gain publicity. If YouTube can prove that Viacom intentionally put their own materials on the site, it will be interesting to see if the court will consider this an implicit license for copyrighted material.

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In the wake of Blogger (Google’s) deletion of a number of music blogs last month, EFF‘s Fred von Lohmann blogged “Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship.” It’s relevant to our discussion of DMCA safe harbors this week. While the DMCA explicitly permits response (counter-notice) to a takedown, because the next step for the copyright owner is to sue, von Lohmann advises “sending a counter-notice can have serious consequences if you’re not absolutely sure that you had all the necessary legal rights to post the songs or links in question. Sending a DMCA counter-notice is serious business, as it leaves the copyright owner with few options (other than suing) in order to keep the song down.”

The fact that the copyright owner’s next move, by law, is to sue definitely makes it seem like the system tips in favor of the copyright owner. Not all cases are like Lenz v. Universal, and DMCA takedowns are so effective because the receiver either doesn’t understand her/his rights or he/she understands but doesn’t want to risk a lawsuit. (The blogger could also have posted a track he/she knows is infringing, of course, but I’m more concerned with legal uses.) Each side is certainly in the position where it’s prudent to pick its battles wisely.

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By Yoshang Cheng, David Rolnitzky, Lee Schneider, Jessica Voytek,

A coalition of governments are secretly meeting in an attempt to form a far-reaching agreement over copyright infringement.  The secret agreement, called the Anti-Counterfeiting Trade Agreement (ACTA), would establish international standards on intellectual property rights enforcement throughout such participating countries as the US, Canada and several members of the EU.  The agreement will formalize a process for finding 3rd parties liable for the infringements of their subscribers, and limiting their liability if they remove the content.  Although the actual wording of this agreement has not been officially published, reliable sources report that these negotiations are occurring behind closed doors, without public input.  The agreement is being structured similarly to the North American Free Trade Agreement (NAFTA), except it will create rules and regulations regarding private copying and copyright laws.  Recently a document containing the ACTA provisions related to the Internet was leaked, which has spurred more discussion.

The ACTA has come under fire from a number of organizations, including the Electronic Frontier Foundation and Public Knowledge, claiming that ACTA has several potentially serious concerns for consumers’ privacy, civil liberties, innovation and the free flow of information on the Internet, and the sovereignty of developing nations.  Increased liability for ISPs (Internet Service Providers) could result in increased monitoring of users, which could then impede their civil rights. Although developing nations have not been involved with negotiations, chances are that their compliance with the regulations will be required as a condition of future trade agreements, effectively limiting the ability for developing countries to choose policy options best suited to their countries.

The effect of this secret agreement on ISP’s could be far-reaching.  These new provisions would require ISPs to take down possibly infringing content, as well as delete the accounts and subscriptions of users who are accused without any judicial oversight.  As a result, the so-called “chilling effect” documented by Urban and Quilter in their 2005 study could be expanded on a global-scale.  The chilling effect is a term that describes the practice of using DMCA takedown notices to improperly limit the speech of others, usually for commercial or political gain.  According to the study, an astonishing 57% of DMCA take down notices sent to Google were targeting apparent competitors. ISPs, fearing liability from this new international coalition, would be compelled to comply with these notices without any kind of judicial oversight.

Civil rights, including freedom of expression may be impacted by this agreement.  In the US, the fair use doctrine was adopted in order to mitigate the tension between freedom of expression and copyright restrictions on expression.  Fair use is not a standard component of copyright law in every country.  In a society without fair use, unauthorized use would be infringement.  “If Hollywood could order intellectual property laws for Christmas what would they look like? This is pretty close,” said David Fewer, staff counsel at the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, in an article posted on Canada.com. Therefore this legislation would unduly benefit corporations at the expense of civil liberties.

The implementation of these new rules raises civil rights concerns.  For example, media outlets in Ireland and Canada have proposed scenarios in which people would be searched at international borders by security-turned-copyright-enforcer.  Such search and potential seizure of any items that “infringes” on copyright laws, such as ripped CD’s and movies, could be done without probable cause.

The impact of the agreement also has some potential consequences for policy in countries both within and outside the countries negotiating the ACTA.  As stated earlier, the agreement has a provision to create a legal regime to “encourage ISP’s to cooperate with right holders in the removal of infringing material” by giving them safe harbor from certain legal threats.  Though the US already has a “takedown notice” provision, the agreement could provide other coalition governments with new leeway to by-pass the normal legislative process in their countries in order to get DMCA-like legislation on the books.  Furthermore, tying such legislation to foreign treaties may constrain Congress’s ability to modify the DMCA in the future.

National sovereignty may also be impacted by ratification of this agreement.  Developing nations (such as China, India and Indonesia) have not been included in the negotiations but may still be required (indirectly) to comply with them.  Since the developing nations rely on international trade agreements for their well being, it would be easy for the ACTA nations to require compliance as a prerequisite to trade.  These laws would then supercede the ability for these developing nations to create laws for their countries.

The effects of ratifying ACTA in its current state would be far-reaching.  The applications of DMCA laws in the US, specifically the safe harbor provisions and take down notice process, are easily manipulated for commercial or political gain.  The rights of corporations are placed above the rights of citizens, and the process of law is turned on its head.  Accusation is proof enough to force action to remove the offending content.  The agreement would restrict the choices available to agreeing nations and developing nations alike. With so much at stake concerning the rights of individuals and the implications for international policies, it is troubling that these negotiations are being conducted secretly.

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I know we are pretty far from DMCA safe harbors syllabus-wise, but I just went to watch a Colbert Report clip on YouTube and saw a message that I hadn’t noticed before on some copyrighted content. Instead of (roughly), “This video has been removed due to copyright infringement,” the message on the Colbert vid page read, “This video contains content from Viacom, who has decided to block it.” (more…)

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