Not since the NFL sent a takedown notification to Wendy Seltzer because she posted the NFL’s copyright notice has a takedown notice been so unknowing. Wendy is a law professor and the head of the Chilling Effects archive of takedown notifications. The new Notification of Unknowingness went to Lawrence Lessig for using a short clip to make a point in a video of a talk about the overreach of copyright:
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet. [source: eff]
When YouTube forwarded the DMCA takedown notice to him, Lessig did what so few people do: he counter-notified that his use of the clip was an instance of Fair Use. [More details here.] Fair Use is an exemption to copyright that lets reasonable extracts be used in cases just like Larry’s video. [Better explanation here.] The copyright holder then said they were going to sue Lessig for infringement. Lessig took down the clip and is now taking the issue to court with the help of the Electronic Frontier Foundation. (Did you remember to donate to the EFF?) Their aim is to get the judge to issue a declarative judgment that the the clip is covered by Fair Use, and to get damages as specified in DMCA clause 512f:
(f) Misrepresentations. Any person who knowingly materially misrepresents under this section
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Since what exactly constitutes Fair Use is determined by courts, a declarative judgment would help clarify that uses like Larry’s are definitely ok, and the awarding of damages would help discourage organizations from issuing automated takedowns that give no heed to the circumstances in which the content is being used. (But I am not a lawyer, so do not believe me.)
The final irony: The name of the copyright holder is Liberation Music.
Go, Larry! Go EFF! And thank you!
Tagged with: copyright
• fair use
Date: August 24th, 2013 dw
There’s a good explainer by Eva Galperin of Twitter’s new policy on censoring tweets within countries that demand it, At BoingBoing, Xeni Jardin points to one particularly relevant fact: this applies to countries whwere Twitter is establishing physical offices.
Tagged with: censorship
Date: January 28th, 2012 dw
ToSBack â€” an EFF project â€” tracks 44 big sites and notes when they’ve changed their terms of service. Then it shows you a side-by-side before and after. For example, here’s a recent change by Facebook. (via Adam Holland. Thanks!)
Categories: Uncategorized Tagged with: digital rights
Date: June 6th, 2009 dw
It’s the first International Ada Lovelace Day, when we celebrate women in tech by blogging about a woman in tech. My choice this year is Wendy Seltzer. This list of projects she’s been instrumental in of course does not tell the whole story, but it’s a good place to start.
Wendy graduated Harvard Law with a ticket to high-priced everything, but instead has dedicated her legal skill and deep technical understanding to preserving the Net as a place for free speech and free culture. She was a lawyer for EFF for years, an original and sustaining Berkman fellow, a careful observer of ICANN, the heart, head and hands behind ChillingEffects.org, and someone who never hesitates to pitch in when there’s a way to keep the Net open to all.
Wendy is modest and shy, and will undoubtedly be made uncomfortable by my singling her out. But, hey, what are friends for? :) Wendy, it makes me happy to know you are working for us all, and even happier to call you my friend.
Categories: Uncategorized Tagged with: adalovelaceday
• digital culture
• digital rights
Date: March 24th, 2009 dw
… in the dark, threatening, and one-sided.
Thus, the RIAA is appealing the decision to let a hearing in its suit against a file sharer â€” Joel Tennenbaum â€” be webcast.
The Electronic Frontier Foundation (did you remember to join?) has filed a brief in support of webcasting the hearing, in which it says:
“The record companies have long maintained that they brought these lawsuits against ordinary users to start a national conversation about peer-to-peer file-sharing,” said EFF Legal Director Cindy Cohn. “What better way is there for the public to learn what the record companies are doing than by seeing for themselves what happens in these lawsuits?”
Tagged with: copyleft
Date: January 30th, 2009 dw
Once every three years, the copyright office considers proposed exemptions to the DMCA’s forbidding of attempts to circumvent Digital Rights Management (DRM) protections. Yesterday at 5pm was the deadline for this cycle’s bids.
And there have been some really interesting ones.
Some Berkman folks have asked for the right to Hack the Dead, although they don’t put it like that. If you have software that checks on line to make sure you are authorized to use it, and if the company has now gone out of business, you can no longer use stuff you paid for. So, the Berkman team has proposed that in those circumstances, hackers should be allowed to hack your content free of the dead grip of the defunct business. Chris Soghoian, one of the petitioners, explains it well.
Chris also explains some of the other 18 requests for exemption, including an EFF (did you remember to join?) request to allow users to jailbreak their iPhones so they can run software that Apple has not approved, and a request to allow academics to hack DRM’ed DVD’s to make compilations that are legit under the Fair Use exemption.
Unfortunately, it’s likely that the copyright office will emerge from its three year slumbers, see its own shadow, and put its head straight back up its own rectum.
Categories: Uncategorized Tagged with: berkman
• digital rights
Date: December 3rd, 2008 dw
The Electronic Frontier Foundation (did you remember to join?) has blogged about the WIPO Broadcasting Treaty that won’t seem to stay dead. (Great backgrounder and eval by Nate Anderson at Ars Technica.)
The new treaty would mean that to record or reuse a broadcast of a TV show, you would have to get rights not only from the company that created the show, but also from the broadcaster whose signal you recorded. The Europeans have supported this since they backed the Rome Convention in 1961; the proposed treaty would globally standardize this new layer of rights/restrictions.
The EFF has argued that if passed, it would mean that it would be illegal to record even a Creative Commons licensed broadcast; the creator of the work may be fine with it, but the broadcaster might not be. There are no “fair use” exceptions in the proposed Treaty, although it allows signatories to carve out exceptions based on their own copyright laws; the EFF claims that this would create confusion that would chill innovation and speech, as different countries implement different exceptions.
The US delegation has taken up again its call for “broadcast” to include transmissions over the Net.
The new push for the treaty, according to an update by Nate at Ars Technica, is likely to fail because there seems to be an irreconcilable split among countries that want to add this new layer of rights and those that would solve the problem of people stealing and reselling broadcasts simply by using existing laws to prosecute the people who do it.
Categories: Uncategorized Tagged with: broadcasting
• digital rights
Date: November 11th, 2008 dw
Here’s how the DMCA has worked so far: A copyright holder (henceforth “publisher”) notices an instance (henceforth “video”) of what it thinks is a violation of its copyright on a site such as YouTube (henceforth “YouTube”). The publisher sends YouTube a notice that the video infringes copyright. YouTube then has a choice: It can disagree that the video infringes, and leave it up, or it can take it down and let the video’s poster know that it’s done so. If YouTube chooses Door Number One, it becomes liable if a court decides the video really was infringing. So, inevitably, YouTube takes it down. The video’s poster can then counter-notify YouTube that the video is not infringing. (In this one example, YouTube’s lawyers will actually take a look to decide whether they think it infringes or not. But YouTube is very special in this regard.)
On paper, this seems reasonable. And maybe if the whole thing were done with paper, it would be. But the claims of infringement can be compiled digitally — publishers like Viacom automatically generate lists of every instance of, say, “jon stewart” in a video’s title and submit lists of over a hundred thousand URLs, obviously without having actually reviewed any of the videos — while the response is analog, and thus hard, time-consuming, and risky.
Now there’s been some good news.
A federal judge has ruled that before a publisher submits a DMCA takedown notice to a site like YouTube, some human being has to look at it to decide if it actually infringes, or if it is protected by Fair Use. If this ruling is maintained, it will help re-balance the insanely pro-publisher, pro-protection, pro-restriction copyright regime by taking away the incentive to take down anything and everything that looks like it might maybe perhaps upset a publisher’s delicate sensibilities.
PS: Did you remember to join the Electronic Frontier Foundation to help protect your online rights?
Categories: Uncategorized Tagged with: copyleft
• digital rights
Date: August 22nd, 2008 dw
I am not as unhappy with the FISA bill as many of my friends are. But this bill needs to be challenged in court. For one thing â€” as others have pointed out â€” that the president told you to do something illegal doesn’t excuse you from it, if only because presidents don’t have the power to order you to do anything.
EFF is asking for donations for a court challenge. EFF’s budget is a dry cough in a thin hanky compared to the economic forces it’s fighting. Is it worth a few dollars to you to get this bill tested?
Categories: Uncategorized Tagged with: eff
Date: July 10th, 2008 dw