“TARDIS2.jpg” curteosy of zir.com and Wikimedia Commons.

In the past week, two major events that aired coverage of their event live over the internet was blocked, not by hackers, but by automated computer programs (“bots”) created to stop the unauthorized digital airing of copyrighted material. In order to avoid the wraith of copyright owners, live streaming websites utilize computer programs that use an algorithm to determine if copyrighted material is being broadcast through their website. The bots assume that the website does not have the copyrights, and thus shuts down the live feed immediately. That’s right, copyright owners have been thwarted by the very centurions tasked to protect their copyright.

On Sunday, September 2, the company providing the live streaming of the science-fiction themed Hugo Awards at Worldcon, abruptly cut the feed in the middle an acceptance speech by author Neil Gaiman.  Usteam, the company providing the live stream, use bots to shut down any steam that contains copyright infringement. Before Gaiman, who won an award for a Dr. Who television script, went to the stage, the ceremony aired a video of short clips, including portions of Dr. Who that Gaiman wrote.  At this point, Ustream’s computer programs shut down the broadcast, angering many users.  Ustream apologized for the inconvenience, blaming the problem on a third party.

A few days later, the same issue cropped up on YouTube, which streamed the Democratic National Convention. This time these computer bots ended the feed during First Lady Michelle Obama’s speech, blocking future replays of the event.  Officials at DNC and YouTube claim that none of Tuesday’s events were cut short, and that future event days will not have the same technical problems.

So this week’s episode highlights a problem many media companies have when they attempt to zealously guard their copyrights by issuing takedown notices. As Techdirt points out, the companies claiming copyright infringement include a few media companies who have no compunction about prematurely taking down videos before determining if they own the copyright to those videos.  Remember that last year, much of the furor over the Stop Online Privacy Act (SOPA), was due to the fear that companies would abuse takedown notices.

Even though SOPA is long-dead, these incidents illustrate that there is still a problem with the methods we currently use to fight copyright piracy. While it is important that copyright holders safeguard their rights, but it is also important to allow for Fair Use of copyrighted material. To paraphrase the Roman poet Juvenal, “Oh, who watches the watchmen when the watchmen are watching what you’re watching on YouTube?”

By Brian Lynch

The Hispanic Leadership Fund (HLF) had plans to release multiple advertisements that it characterizes as “address[ing] substantive policy issues facing the federal government on a daily and regular basis.”  The ads do not name a specific political candidate, but HLF is concerned the ads will fall under the Federal Election Commission’s (FEC) regulatory authority via the Federal Election Campaign Act (FECA).  Ads that clearly identify political candidates during election periods require disclosures and disclaimers, which includes reporting the advertiser’s donors to the FEC.

HSL claims compliance with electioneering disclosure rules could hamper its fundraising efforts, but without the proper disclosures HLF could be subject to criminal and civil liability.   The HLF has filed pre-enforcement actions seeking declaratory and injunctive relief in Federal Court in Iowa and Virginia claiming the potential penalties prevent it from engaging freely in constitutionally protected speech and association.

The ads have been called attack ads against President Obama, but the ads do not name Mr. Obama.  In lieu  criticizing him by name the ads criticize “the administration”, “the White House”, and “the Government”.  If the use of the terms meets the clearly identifiable candidate criteria set forth in statute and judicial opinion, the ads would fall under the purview of the FEC.

HSL points to Buckely v. Valeo, 424 U.S. 1, 43 (1976) which defined how ads clearly identify candidates.

Section 608(e)(2) defines “clearly identified” to require that the candidate’s name, photograph or drawing, or other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate’s initials (e.g., FDR), the candidate’s nickname (e.g., Ike), his office (e.g., the President or the Governor of Iowa), or his status as a candidate (e.g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).

HSL’s claim may turn on whether the Buckely court’s list of unambiguous references is complete or if the proposed terms could be deemed equivalent and added to the list.  Reading the scripts for the ads makes it clear HSL is dissatisfied with President Obama’s policies and include calls to action for viewers to voice similar dissatisfaction.  One ad goes so far as including an audio clip of Mr. Obama.  In the context of the ad, it is hard to argue the terms do not clearly identify the President.

Brian graduated from Suffolk University Law School in May of 2012 and served as president of Suffolk Media Law in his last year of school.

By Sarah Griffis

Google announced on Friday that it has updated its algorithm to downgrade websites for alleged copyright infringement. The new filter takes count of valid copyright removal notices, and websites that achieve a “high” number of notices are punished with lower ranking. A downgrade results in the webpage being displayed deeper in the results list, thereby reducing traffic to the site. Google does stress that it will not remove sites from search returns, and there is an internal dispute mechanism referred to as the “counter-notice”.

Despite Google’s attempts to soften the impact of its new algorithm, plenty of citizens see potential for abuse and misapplication of the downgrading procedure. David Angotti at Search Engine Journal points out that this punishment may target sites unfairly if, for example, a third party user is responsible for putting the infringing content on the net. John Bergmayer at Public Knowledge is concerned that Google’s steps may be manipulated to argue for a precedent that other search engine companies cannot maintain. Writers at EFF examine the risk of downgrading websites based on “false positives” among takedown requests.

Google seems to have more than the stakes of the copyright holders in mind with its recent modification of the results algorithm. Wired writer David Kravets explains that as Google expands into a media dissemination giant, it makes less and less sense to give top billing to websites that both leech traffic and tick off its business allies. The balance Google strikes is to push these sites off the first page even though they may be relevant to the search. Anthony Wing Kosner at Forbes has softened the accusation that Google also would give specific preferential treatment to YouTube; nevertheless, the partner site is protected under a category labeled “user generated content”.

Photo used without flickr user scobleizer’s permission via Attribution 2.0 Generic (CC BY 2.0) license.

By: Sarah Griffis

Verizon has been working out a bargain with the FCC to purchase wireless spectrum from cable conglomerate, SpectrumCo. CNet reports that Comcast, Time Warner Cable, Cox Communications, and Bright House will sell $3.9 billion worth of Advanced Wireless Services wireless spectrum to Verizon Wireless. This sale is separate from, but heavily contingent on an agreement to co-operate and offer each others’ services in existing markets. The DoJ sees a problem here if the non-compete agreement is applied to Verizon Communication’s FiOs services. Since FiOs offers similar products as cable, the DoJ feels that the companies’ deal could turn against the American public and stagnate competition in broadband services offerings. Chief marketing officer at Verizon Communications, Mike Ritter, disagrees in the CNet article that FiOs will have any breathing room as a result of the marketing bargain. Verizon has additionally agreed to sell a large amount of present airwaves to T-Mobile, which previously staunchly opposed the wireless spectrum sale due to its unprecedented size and Verizon’s current leading position in the wireless services market. The FCC has further been mollified by Verizon agreeing to sell another passel of low-band wireless to anyone who’ll buy it.

Wayne Rash writes an astute article at EWeek, which points out that technically the DoJ can have its own concerns about the non-compete aspect of the deal while the FCC approves the spectrum apportionment side. Realistically, however, the DoJ’s suggested amendments to the joint marketing plans will be sorted out before the cable companies agree to sell their spectrum.

By: Sarah Nashat

By Sarah Nashat

Barnes & Noble has recently issued a response to the Department of Justice’s Proposed Final Judgement, although it was not directly involved with the events of this suit. In Barnes & Noble’s comments to the US Southern NY District Court, the book and ebook retailer complains that limiting the tactics employed by Apple when it entered the ebook market will result in stifled market creativity as sellers compete on price points.

According to the government’s complaint, when Apple considered selling ebooks on the iPad, it allegedly forged co-operative pacts with 5 major publishers that resulted in Amazon being forced to raise its book prices. Prior to Apple’s entry to the ebook market, Amazon used a wholesale purchase model to buy and sell ebooks. (Complaint, 8) Amazon could scoop up a large quantity of ebooks from publishers at a set price, then take low profits and sell those ebooks cheaply in order to gain footing in the consumer market. This strategy helped Amazon to sell the Kindle quite effectively, and gave it a commanding share of the ebook market in its earliest stages. However, Apple changed all of that when it proposed a publisher controlled pricing model and Most Favored Nation clauses to prevent other retailers from discounting the price of books also sold by Apple.

The DoJ’s Proposed Final Judgement exerts control over the ebook economy in that for two years it does not allow publishing companies to honor MFN clauses, explore the agency model further, or otherwise interfere with the ebook retailers’ rights to vary the price in connection with promotions or other attempts to draw business. (Proposed Final Judgement, 10) Barnes & Noble argues in its comments that the Judgement is excessive when it nixes the opportunity for agency model pricing completely. (Comments, 2) Additionally, the book seller argues that the punishment the DoJ prescribes will be meted out on the public via higher prices for ebooks and hard published books and loss of choices in distribution. (Id, 3)

The benefit of the agency model to most stores is that it allows them to ensure a specific profit margin on each ebook sold during negotiations with the publishers. However, without a MFN clause, the agency model’s slightly overall higher price becomes a deterrent to customers who can still go to a wholesale model retailer and buy the book at a decent discount. Compared to 12.99 or 14.99, paying 9.99 per book is a clear savings, especially for prolific ebook readers. In the end the difference between retailers should be the platform they deliver the content on. (Id, 14) That much has been vividly shown on the iPad, where illustrated books shine on the large, saturated color screen. It seems that whether the conflict is over price or consumer options, foreshadowing predicts cutthroat competition as the ebooks business story unfolds.

By Sarah Nashat

Recent reports indicate that the Foreign Intelligence Surveillance Act passed the Senate and has turned up in the House for debate and deliberation. This Act once protected American domestic privacy, but in 2007 was overhauled, significantly amended in 2008 and enacted for the subsequent 5 years. The Act now allows the NSA to survey American phone conversations, emails or other communications to international parties without first obtaining a warrant. With the timer set for the end of this year, FBI director Robert S. Muller III strongly encouraged fast renewal of the powers his agency enjoys under FISA.

Nat Hentoff, eminent authority on the First Amendment, peers into the troublesome balance of power, lack of information and improper application of the privileges FISA bestows on the government. Picking up on the lack of discussion between the presidential candidates Obama and Romney, Hentoff wonders who in the higher stratospheres of government even gives a hoot that a former FBI employee of 16 years has written reports indicating that the dragnet data-collection strategy employed under FISA clogs up databases and closes off communities targeted by the police. He is not the only well-known defender of the First Amendment to take issue with the Act’s far-reaching language and excessive data collection, beyond even what is allowed in the Act itself.

Back in 2008 when the Act was significantly expanded to allow warrantless domestic wiretaps and data searches, the ACLU filed suit to challenge the conflict between the vast expanse of information collected by the government and the lack of adequate representation by people whose rights are infringed by the excessive data collection. The ACLU points out that the Justice Department has developed a Kafka-esque requirement that plaintiffs whose privacy rights have been infringed on must bring suit against specific government workers, but may not have access to information clarifying who those people actually are. This obscure loophole effectively rips away legal redress, and therefore balance, from the populace.

By Justin Silverman

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. “I have since learned better,” he said.

What bothered Donnelly wasn’t the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. “I am all for having a completely open government,” he said, “but something needs to make this online shaming device stop.” Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many readers weighed in with their own take on what David Kravets described in Wired as a “racket.” According to Kravets’s article, self-described “reputation companies” are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.

“This is not a ‘mugshot business’ or ‘mugshot industry’,” wrote one reader. “This is extortion… The demand: Pay up or it stays up.” Another reader noted that many of these sites defend their right to publish mugshots — which are public records in many states — by claiming they are news organizations: “They’re not a ‘news organization’ by any stretch of the imagination,” that reader wrote. “They have zero/zilch bona fide news media credentials… [They] break every accountable, professional, bona fide news media/news-reporting ‘code of ethics’ out there.”

Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records exemption for those who would be using the records for “commercial purposes.” Donnelly, a Fort Worth, Texas, resident, is currently lobbying his representatives to enact such a clause in his home state’s FOI law. Presumably, such an exemption would prevent companies from exploiting public record laws while allowing news organizations to continue with their business.

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By Brian Lynch

“April 29th, 1992, there was a riot on the streets,
tell me where were you?”

On that date Timothy Goldman was on the corner of Florence and Normandie in South Central Los Angeles, with a video camera.  That intersection was the epicenter of the Rodney King Riots that occurred twenty years ago.  That is where trucker Reginald Denny was pulled from his truck and nearly beaten to death.  That incident and another two hours of violence, destruction and chaos were captured on Mr. Goldman’s videotapes.

The riot footage and the video of the Rodney King beating, filmed by George Holiday, ushered in a new era of citizen journalism.   Mr. Goldman chose to publicize the footage and licensed it to several media outlets.  With that decision, his life turned upside down.   In interviews, he has chronicled how he was forced to move from his home due to constant threats on his life from members of his community.  His own brother deemed him a rat and a snitch for publicizing the acts of his neighbors.      

In addition to the personal upheaval, some other consequences followed.  Mr. Goldman became the key witness to several of the acts of violence that occurred on the tapes.   The LA Police Department tapped him to identify suspects from the videos.  Additionally he was subpoenaed to appear as a witness in several criminal proceedings and civil trials.  Mr. Goldman was also required to turnover footage that was not broadcast, failing to qualify as a reporter under California Shield laws.

Would he fair any differently today?

It would be a mistake to compare Mr. Goldman’s act of citizen journalism to most others, as his footage captured a monumental event in our history that few professional journalist could match.  But has the concept of citizen journalism gained more legal standing?

Recent court decisions indicate the answer is no.  One Oregon blogger was denied protection from a defamation claim because the judge ruled (in part) the blogger did not meet the statutory definition of a journalist.  In an Illinois case a website was denied protection under the state’s shield law because the site did not qualify as a news medium.  Some progress has been made, as California extended shield law protection to online news sites in O’Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006).

A guide to shield laws as applied to citizen journalists can be found here.

Photo LA Burns: From Nichols Canyon courtesy of Flickr user Dark Sevier under Creative Common License CC BY-NC 2.0.