Prosecutors Subpoena Tons Of Info On Student Journalists Who Provided Information To Reopen Murder Case

from the chilling-effects dept

Northwestern University's Medill Innocence Project is a very cool program for journalism students, teaching them investigative reporting techniques in the real world, by having them investigate potential wrongful convictions. As the program's website notes, it's helped free 11 wrongfully convicted individuals, five of whom had been on death row. However, some prosecutors don't really like being proven incorrect. In one of its latest projects, the Innocence Project has provided enough evidence to reopen the case of Anthony McKinney, who has been in jail for 31 years for allegedly killing a security guard.

However, state's attorneys in Illinois are now subpoenaing all sorts of excess information on the students themselves, including their grades, the grading criteria, student evaluations, and private notes and and off-the-record interviews that were used in gathering the information necessary for the case. While the state's attorney Anita Alvarez is defending this overreaching subpoena effort, it has many concerned that this is really just an attempt to intimidate the students and create a serious chilling effect on this type of investigative research. It's difficult to see how the student's grades make any difference at all in whether or not McKinney is innocent or guilty.

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Dreadful Ruling: Web Hosts Hit With $32 Million Judgment For Content On Customers' Websites

from the chilling-effects dept

Well, this is bad. We've worried in the past about the lack of a specific safe harbor to protect trademark infringement claims being brought against third party service providers. The DMCA has a safe harbor that protects against copyright claims, and the CDA has a safe harbor that protects against all non-intellectual property claims, such as defamation. But trademark is a loophole... and because of that you can get some really dreadful results. Earlier this year, we noted that a court had ruled that web hosting firms could be liable for trademark infringement done by their customers. The case involved luxury goods retailer Louis Vuitton suing some web hosting firms for the actions of their customers. Any common sense ruling would find that the hosts are simply the tool providers, and it was the customers running the actual websites who were liable. That is, if there were common sense.

Instead, as Eric Goldman alerts us, the jury has sided with Louis Vuitton and awarded the company $32.4 million in damages from the web hosts.

This is a bad end result no matter how you look at it. If you do any sort of web hosting, your liability just went up by a tremendous amount, and you may now be expected to proactively police all your customers' websites for anything that might possibly be seen as trademark infringement. It's safe to say that this is not what Congress intended -- given the nature of the safe harbors it set up in the DMCA and the CDA. Hopefully, either a higher court will toss this out and/or Congress will finally get its act together and extend safe harbor protection to trademarks as well.

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Gartner Tells Reporter: You're Not Allowed To Mention Gartner Research Without Our Permission

from the copyright-gone-insane dept

Rich Kulawiec alerts us to the news that Gartner (which absolutely should know better) sent a legal nastygram to a Network World blogger, Larry Chaffin, for the mortal sin of mentioning Gartner without Gartner's permission. Specifically, Gartner is claiming full control over its research reports, and saying that a reporter cannot quote them. Gartner is almost certainly wrong about this. If the information is newsworthy (and it sounds like it was), then a reporter absolutely has the right to post it. Also, Gartner seems confused about how all of this works. It first claims that posting such info was a violation of its own policy... but it's a policy that Chaffin had not agreed to. Perhaps Gartner had a claim against the vendor who gave Chaffin the report, but that doesn't preclude posting the information. On top of that (of course) Gartner is pulling a bit of copyfraud, by claiming that copyright gives it many more rights than it really does:

Gartner's published research is proprietary intellectual property of Gartner, Inc., and is protected by the copyright laws of the United States and other countries. Your company's mention of our research in your material does not comply with our Copyright and Quote Policy (available at the link below) and so this is an infringement of our copyrights. I ask that you take immediate and effective steps to remove this blog posting and also any other unauthorized mention of Gartner's research in any other venue which you control.

There's just one (big) problem with that. Copyright law doesn't really give a hoot what Gartner's own "Quote Policy" is. Copyright law has built in exceptions that can't just be written away like that.

Chaffin actually did take down the posts after being threatened, claiming that in doing so he's showing how meaningless Gartner is. He also promises never to post about any Gartner reports ever again in the future -- but did talk up Gartner's ridiculous policies and demands (amusingly referring to the company as Gar-ner).

Beyond just being of questionable legality, Gartner's actions also seem incredibly short-sighted (especially for a firm that's supposed to be known for being forward looking). Everyone knows the real value in a Gartner report is not in any actual analysis, but in the PR it might generate for companies that find their way into the infamous (and silly) "magic quadrant." By forcing reporters not to talk about who's in that magic quadrant, Gartner has just made its reports significantly less valuable. Now that's foresight.

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Congrats, RIAA: Chilling Effects Have Killed Interest In New Digital Music Startups

from the nice-work! dept

We've noticed that pretty much every single new and innovative digital music startup that pops up eventually gets sued by the record labels. The labels seem to view this as a part of basic negotiations -- and, in fact, many of the lawsuits have ended in partnership/equity deals. But, those deals tend to be suffocating. Given that (likelihood of getting sued or getting a deal that makes a profitable business impossible), is it any wonder that entrepreneurs are shying away from any sort of digital music startup these days, in favor of opportunities with no obsolete gatekeepers demanding huge chunks of whatever revenue they might one day make?

At a time when the recording industry needs innovative startups more than anything else, the record labels and their oppressive lawsuits and deal terms have basically scared off exactly the people who create those businesses.

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Amazon Uses DMCA To Try To Block Other Ebooks From Getting On Your Kindle

from the joining-the-dark-side dept

Slashdot points us to the rather unfortunate news that Amazon has sent a DMCA takedown notice to MobileRead, concerning a link that site had to a small piece of software that would allow ebooks purchased elsewhere (other than Amazon) to work on the Kindle. There are a number of issues here, all of which seem troubling.

First, MobileRead never hosted the software in question, but merely had links to the tool and some instructions. Such a takedown is only supposed to be used for sites that actually have the infringing material. However, thanks to the wonderful chilling effects of the DMCA, MobileRead removed the links.

Second, it's not at all clear how this script violates the DMCA. It doesn't remove copy protection at all. It just serves to open up the device for other eBooks to be used on the device. All too often we've been seeing the DMCA used in cases like this, where companies are treating the DMCA's anti-circumvention clauses to mean that they can stop just about any script they don't like from being available. This is clearly not what the DMCA was intended to do.

Third, the script was useful for allowing legally obtained ebooks from other stores to be read on the device. In other words, it was not a tool for copyright infringement, but for reading legally obtained works. This is a massive problem with the DMCA's anti-circumvention clause: it makes circumvention itself illegal, even if the circumvention is used for non-infringing purposes.

Fourth, Amazon's decision to send a DMCA takedown, in light of all of the above, is bothersome. One would hope that a company like Amazon wouldn't be quite so aggressive in trying to block out competition, in such ways -- especially to the extent of abusing copyright law. There have been a bunch of lawsuits in the past that have pretty much all said using the DMCA solely for anti-competitive purposes is not a legitimate use of the DMCA -- hopefully, someone can send Amazon's lawyers the various cases to make it clear to them that they're on the wrong side of the law here.

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The Chilling Effects Of Warner Music's YouTube Takedowns

from the it's-about-chilling-effects,-not-lawsuits dept

The EFF is reporting on the chilling effects created by Warner Music's regular takedowns of videos of things like kids singing "Winter Wonderland" on YouTube. Due to liability issues, it's a very scary thing to contest a DMCA takedown -- as it could leave you open to paying statutory damages (up to $150,000 per song) and the recording industry's attorney's fees. Some entertainment industry lawyers think this is no big deal at all because Warner Music hasn't actually filed any lawsuits against anyone concerning these videos. But that misses the point (by an astoundingly huge margin). The chilling effects by such takedowns are huge, and are clearly inhibiting creativity -- the very thing that copyright was supposed to encourage. Saying that it's no problem because Warner hasn't filed any actual lawsuits (just takedowns), is the sort of thing that only an entertainment industry's logic could allow.

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Warner Music Continues The Trend: No Innovation Unless It Owns A Piece Of It

from the chilling-effects dept

Warner Music has a rather long history of being first in line to sue pretty much any new and innovative online music service out there. While it doesn't get nearly as much attention, we've heard repeatedly from people that Warner offers many of those sites a deal: give us a big chunk of the company and we'll drop the lawsuit. The lawsuit is merely a big stick used in the "negotiation" to get a piece of the company. So, when you see a lawsuit and then a settlement, involving Warner Music, often the reason is because the other company agreed to hand over a hefty chunk of equity. It's difficult to think of any major online music service that Warner hasn't threatened, sued or received an equity chunk from.

According to TechCrunch, that activity on Warner Music's part has now killed off an attempt by Facebook to open up its own music service. The company had been working for nearly a year on such a service, but Warner simply wouldn't allow it -- especially since it already had ownership stakes from a bunch of other players, and didn't want the competition. This is exactly the sort of chilling effect on innovation that we're consistently talking about. It's rather ridiculous that one company can hold up new and useful ways of listening to and sharing music. When things like the DMCA and other copyright extensions came out, the RIAA insisted that it would never try to block any new devices or services, but its members -- and Warner Music, in particular -- have never lived up to that agreement. Warner Music especially overvalues the music, and undervalues any service that makes that music more valuable -- and thus needs to block or kill off any such service that it can't own in some way. That's not the intention of copyright law, at all. In fact, it's a drastic abuse of copyright law.

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YouTube Bans Video Essayist; Apparently Commentary No Longer Considered Fair Use

from the sigh dept

On Wednesday, at the Congressional Internet Caucus' State of the Net 2009 conference, during the panel on digital copyright, NBC Universal's Alec French made the case for technology-based filters on various websites, claiming that the filtering technology is so incredibly good these days that it can even understand fair use, and not block it. That seemed like quite a claim, and one at odds with pretty much everything we've seen. Of course, it may be in how he (and the entertainment industry) defines fair use. The example he gave was a Saturday Night Live video that was stitched together from clips from various newscasts, rather than the original SNL video. French pointed out that the software could tell the difference, and such a clip would be allowed to stay up.

Unfortunately, things don't always work that way in reality. Michael Geist points out that YouTube has banned a video essayist, claiming that his commentary videos, which included clips from various movies, had to be taken down due to copyright violations -- and since it happened three times (yay, three strikes), his entire account was banned. So, here's a case where it seems that since the clips were used for commentary -- which is a clearly accepted fair use -- and, yet not only were the videos taken down, the guy's entire account was banned.

Geist points out that this isn't YouTube's fault, since it's just obeying the DMCA. But he does fault the DMCA for creating such a chilling effect on commentary and creativity. But there's a larger point too. French insists that computers can somehow tell what's fair use and what isn't -- at a time when humans still argue about it pretty much every day. I'm sure there will be some copyright system supporters who speak up in the comments (as they often do) that we're crazy to think such videos were fair use. Given that, how can anyone actually believe that a technology system can accurately determine in any automated way what is and what is not fair use?

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Facebook Gives In, Cuts Off Project Playlist For No Legal Reason

from the safe-harbors,-people... dept

Earlier this week, we discussed how MySpace had blocked Project Playlist's widgets in response to record label complaints (and, of course, its own desire to have a competitor to its MySpace Music offering locked out) while Facebook left it up. We were surprised to see some claim that Facebook was being "irresponsible" here, because Facebook has a pretty strong legal defense. Of course, it's probably a legal battle that Facebook doesn't want to be involved in, so the company has now followed suit and disabled the Project Playlist app, claiming it violated Facebook's terms of service.

This is yet another example of the recording industry's effort to use chilling effects to get its way, such as by going after third parties to do its dirty work. Third party service providers, such as both MySpace and Facebook, have clear liability protection thanks to the DMCA's safe harbors. Yes, the record labels are in a legal battle with Project Playlist -- but that's between the labels and Project Playlist (and most agree that it's really the record labels using litigation for "negotiating" purposes, rather than based on any strong legal backing). It's not surprising that MySpace of Facebook caved -- why should they fight someone else's legal battle -- but it highlights the problems of when companies like the major record labels are allowed to go after third parties. Those third parties will often fold, because they don't have the incentives to fight. It's an abuse of the law to get others to do the RIAA's unsavory business.

And, in the long run, it's only going to hurt both MySpace and Facebook. If I were a developer for either platform, knowing that they would fold like a cheap card table as soon as some bigger company shows up with a bogus legal claim, I'd focus my development efforts elsewhere. Either MySpace or Facebook could have taken a stand, knowing that any lawsuit would likely get tossed after a quick safe harbor review, and developers would have known that those platforms were safe places for developers. Now... it's probably time to look elsewhere.

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Chilling Effects: Another Mixtape Provider Shut Down

from the unfortunate-news dept

A few months ago, the RIAA shut down Muxtape, a very popular and incredibly useful online service that let individuals create "mixtapes" for streaming to others. As anyone with even a hint of business sense would recognize, this was a great promotional tool for musicians. I, personally, ended up buying a bunch of music after hearing stuff from others on Muxtape. But the way some of the big record labels see things, no one should be allowed to innovate without paying the record labels directly for the right to do so.

It seems this trend is continuing. Mixwit is the latest to shut down. Like Muxtape, Mixwit let people create cool mixtapes and share them online for streaming purposes. Mixwit had a neat little cassette tape interface as well and, again, was a great way of discovering new music and sharing music with friends. Mixwit founders said that they've been put between a rock and a hard place, which made plenty of folks naturally assume that the RIAA or one of the record labels shut them down. I spoke with a bunch of folks within the recording industry and the RIAA and asked each if they had anything to do with Mixwit shutting down, and those willing to say anything said something to the effect that they had not sent a takedown notice or filed a lawsuit (which, you'll note, answers a different question than the one I asked).

Of course, there are plenty of other ways to "shut down" a site without ever sending a takedown or filing a lawsuit. The Mixwit founders responded to an inquiry by basically saying that it wasn't a takedown or a lawsuit, but the simple uncertainty and expectation that one would eventually show up:

We've had good and not-so-good communications with the record labels over the past year, but we were never sued. I'm sure I don't have to explain that our mixtapes are perceived to be in a legally ambiguous state (at least as far as the labels are concerned). We've explored all options, including becoming fully-licensed, and we decided that the time commitment and economics just don't make sense, particularly with the economy the way it is. The decision was clear: we needed to shutdown the mixtapes. We thought about continuing with mixwit as a company, but we could never get assurance that the future of mixwit would not be hurt by the perceived liabilities of its past so we decided it was time to to shut things down.

That, ladies and gentleman, is chilling effects at work. No lawsuit needed -- just the history of previous lawsuits and an unwillingness to "allow" this innovative service to move forward. The RIAA and the labels insist that they don't try to stomp out innovations, but it looks like they did so here simply by being unwilling to say they wouldn't attack it in the future.

This makes even less sense than Muxtape's shut down, however. In the case of Muxtape, users uploaded their own tracks. Even that was a questionable reason, since you would think the liability should be on the individual uploaders rather than Muxtape itself. However, with Mixwit, it's even worse. Mixwit believed (quite reasonably) that they were on the right side of the legal line because they didn't host anything and didn't let people upload stuff. They just used search engines to find music that was already available elsewhere. So, now they're being shut down for merely letting you listen to music that's publicly available. If the recording industry has a problem with the content, it should go after whoever put it online, not a tool that allows it to be heard. You would think that Mixwit would have a pretty strong DMCA safe harbor argument, but it's probably way too expensive to even fight that fight.

So, the end result is the recording industry appears to have shut down yet another useful tool for music discovery -- and did so implicitly by making it impossibly expensive for the Mixwit guys to get assurances they wouldn't get sued. The guys behind the project appear to be considering open sourcing the code (by donating it to OpenTape, which created an open source version of Muxtape), so the technically inclined may eventually still be able to do something. But, with these types of moves by the recording industry happening so frequently, can you see why we're hesitant to simply trust them when they come up with their latest plan?

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YouTomb Joins Chilling Effects In Tracking Takedowns

from the tracking-the-takedowns dept

The DMCA lets copyright holders send takedown messages to various sites, demanding allegedly infringing content be taken offline. It's been rather successful in doing that. A few years ago, a great site, Chilling Effects sprung up to track all sorts of takedown notices (not just having to do with copyright, but any kind of cease & desist threats -- though DMCA takedowns are common). It's a joint effort by the EFF and a bunch of universities, and has been invaluable in tracking the efforts by some to threaten people into taking down various types of content. Now, in a similar effort, MIT is sponsoring a site that will track takedowns of videos on YouTube. The site is creatively named YouTomb. This isn't to say that the copyright holders are wrong in sending the takedown notices -- but it's important to collect information and data on how often these tools are being used and by whom to get a better understanding of whether the system really makes sense.

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