By Sarah Griffis

On Wednesday, the Dutch  Civil Court in Amsterdam declared copyright Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)infringement may attach to an individual or organisation that links to infringing content. This is a new tendril of law that seeks to delineate the contours of infringing via hyperlinking. Some worry that this law poses a threat to nearly all webpages, and misses the legal mark when determining liability.

The case stems from links in an article GeenStijl.nl, a local (raunchy humor) news website, posted about a recent Playboy photoshoot featuring popular Dutch TV personality Britt Dekkers. The article in question focuses mainly on the leaked nature of the content, and invites the reader to click a link to the file of photos hosted on FileFactory.com. The events unfolded as Playboy issued a letter to FileFactory.com and asked them to remove the material, which they did. In response to the link going dead, GeenStijl.nl found a new source of the photos, and this  slapstick entertainment repeated itself a few more times through various outlets of the photos before Playboy and it’s Dutch publisher, Sanoma Media Netherlands, finally sued GeenStijl.nl itself for infringement.

In court, the judges introduced and discussed a three-prong test for determining whether linking would be considered infringing behavior. The court considered “intervention” “new audience” and “profit” as the factors to be analyzed in  the fact pattern. Loek Essers at PC Advisor writes that the three prong theory in this case was inspired by a recent EU Court of Justice, which ruled that “hyperlinks can infringe on copyrights if their publisher intervened, reached a new public and wanted to profit from their publication.” According to Marjolein van der Heide at Future of Copyright, in GeenStijl.nl’s case, the court applied the test to the facts and determined that the news-page had intervened by facilitating the publicity of the file by providing a direct link, had gained a new audience for the file which did not previously exist, and intended to and did profit from the increased web traffic generated by the article linking to infringing material.

While some groups are celebrating the ruling, Mike Masnick at Techdirt worries that the law has mistakenly put liability on a non-infringing party. GeenStijl.nl rages after its negative verdict that the judges have in fact banned Google with their new rule. However, Dutch law professor Dirk Visser dismisses this as a complete exaggeration of this narrow rule.

Given that here in the US embedding video is not considered infringement– even when the content does infringe, this strikes as a controversial decision. Does the Dutch ruling draw ascertainable lines to prevent abuse of the internet via this precedent?

Image used courtesy of  Flickr user dullhunk without permission via CC BY-NC-SA 2.0 license.

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 GriffisImage

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 Justin Silverman

Do computers have a First Amendment right to free speech?

Tim Wu, author and law professor at Columbia University, posed and attempted to answer this question in a June op-ed in The New York Times. (Admittedly, I’m a bit late to come across the piece, but I think it’s still very relevant and well-worth revisiting.) On its face, the question seems absurd — the constitution protects individuals, not machines! — but the issue has been debated since at least 2003 when Google argued in a civil suit that its search results were protected speech. The court ruled in Google’s favor.

Explained Wu:

“In today’s world, we have delegated many of our daily decisions to computers. On the drive to work, a GPS device suggests the best route; at your desk, Microsoft Word guesses at your misspellings, and Facebook recommends new friends. In the past few years, the suggestion has been made that when computers make such choices they are ‘speaking,’ and enjoy the protections of the First Amendment. This is a bad idea that threatens the government’s ability to oversee companies and protect consumers.”

In arguing that the output of a computer is too attenuated from the individual to warrant full First Amendment protection, Wu criticized professor Eugene Volokh of the University of California, Los Angeles School of Law. Volokh declared in a paper that “Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers.”

Volokh defended his position in a thorough rebuke to Wu, resulting in a great exchange between the two highly regarded academics on a controversy that could potentially redefine the limits of the First Amendment. Do yourself a favor and read both pieces in their entirety. The depth of the arguments, particularly those of Volokh, is beyond the means of this brief blog post.

In short, Volokh explained that:

“…the computer algorithms that produce search engine output are written by humans. Humans are the ones who decide how the algorithm should predict the likely usefulness of a Web page to the user. These human editorial judgments are responsible for producing the speech displayed by a search engine. For instance, Google’s use of the volume of links from other sites as a criterion for ranking search results was itself the result of Google engineers’ editorial judgment that inbound links provided a sound and quantifiable measure of a site’s value. Search engine results are thus the speech of the corporation, much as the speech created or selected by corporate newspaper employees is the speech of the newspaper corporation.”

To many, this debate has real consequences. Since I wrote about the prevalence of mugshot websites, for example, I’ve had many conversations with readers who question why their mugshot is the first search result when there are many other websites that portray them in a more flattering light. It’s unfair, they argue. Google’s decision to rank these mugshot sites higher than others is making their professional growth difficult and tarnishing their image sometimes decades after an arrest. Can’t this type of “speech” be regulated?

Well, it seems, it depends on who you ask.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently an attorney based in Westborough, Mass. In addition to Suffolk Media Law, he blogs for the Citizen Media Law Project and the New England First Amendment Center, for which he serves as a board member. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @justinsilverman.

(Image of “Computer Parts Thingy” courtesy Flickr user kokopelli1330 and published under a Creative Commons BY-NC license.) 

By: Sarah Griffis

Original Photo by DanieVDM used with license via CC BY-NC-SA 2.0.

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

Original Photo by robinrkc, used with permission via CC license.

Law enforcement officers across the nation are relying on a relatively new tool to apprehend criminals traveling via motor vehicle. Called “automatic license plate recognition” devices, they are indeed an efficient way to nab criminals on the lam. The device law enforcement finds so useful is a scanner that reads license plate numbers at lightning speed and simultaneously cross checks the tag against a database of flagged plate numbers. The tool is frequently mounted on police cars and scans traffic indiscriminately.

Were this the end of the technology’s application, there wouldn’t be too much fuss about it. The problem is that the information the scanner picks up is not ephemeral in nature, nor is it limited to merely your plate number. Date, time and location information is attached to the license plate number scanned, and is then stored for a varying amount of time ranging from 2 to 5 years, depending on the jurisdiction. The length of time is meant  to facilitate long-term surveillance, but it ends up infringing on privacy rights of law-abiding citizens.

Debra Bogstie of ABC Connecticut reports that the deeply sensitive information about peoples’ day-to-day travels is freely available. Indeed under FOIA laws ACLU CT was able to retrieve 3.1 million scans and could “map the locations of cars driven by its own staff around the area.” ACLU Connecticut Attorney David J. McGuire relates that he was unnerved by finding his own license plate data stored with location information indicating a pub he had gone to with a law school friend.

The big red flag for most concerned citizens is the length of time that the bulk of the data hangs around for.  Invasion of privacy rights exists when innocent civilians’ movements can be tracked, stored and recalled without due cause. Mr. McGuire has proposed that police departments purge their databases every 2 weeks of all scans not specifically related to an investigation to avoid interfering with individuals’ privacy expectations.

By Sarah Nashat

Image by Eric GrossnickleBarnes & 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

Image by Hyku. Used under CC BY 3.0 license.

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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