We've written a few times about politicians trying to fix Peter Mandelson's Digital Economy Bill, but now it appears some politicians are trying to make it worse. One of the proposed amendments would let the government designate websites to be blocked at the ISP level. This is blatant censorship, of the kind that Australia is now trying to implement, and which China already uses. Basically, if a court determines that, via any website, a "substantial" amount of infringing content can be accessed, the court could order ISPs to block that site. The idea here, obviously, is to get ISPs to block sites like The Pirate Bay and to stifle new technologies. If this had been a couple decades ago, they would be passing laws to ban the VCR.

Stephen Conroy, the Australian Communications Minister who is the point man on pushing through Australia's latest plan to censor the internet, has apparently been caught doing a bit more local censoring. Yeebok points us to the news that Conroy's own website has a tagcloud, highlighting what people are searching for, but the script that generates the tagcloud automatically blocks the phrase "ISP filtering" from appearing in the cloud. What's most amazing, of course, is that Conroy's tech staff is apparently so clueless that they included this in the javascript which anyone could read, rather than, at the very least, hiding it serverside. Amazing. He's apparently so unable to backup his own position that he has to hide behind a weak technology hack to pretend that people aren't concerned about his plan to censor the internet. Perhaps instead of "ISP filtering" people should start searching for "censorship" on his site to see what happens...

After Google announced plans to no longer censor content in China, we wondered if they would do the same in other countries, like Australia, which was pushing for much greater censorship online. So it's nice to see that Google is pushing back in Australia and telling the government that it will not voluntarily censor YouTube videos based on Australia's classification. YouTube already has rules in place to block certain types of videos, but it feels that Australia's rules go too far in blocking what could just be political speech that the government disagrees with. What's really amazing (and worrisome, if you're Australian) is that the government referred to the rather oppressive censorship of the internet done in China and Thailand as good examples of how Google should censor the internet in Australia.

Last summer, of course, there was a lot of attention paid to China's announced plans that every PC sold in China needed to include the new "Green Dam Youth Escort" software, which was a client-side filtering program. After international outrage over the plan actually had some sort of impact, the government backed down. A smaller story, that came out during all of this, was that the Green Dam software appeared to copy significant portions of the commercial filter product, CyberSitter. Now, CyberSitter has sued the Chinese government and a bunch of companies for $2.2 billion. The lawsuit has been filed in Los Angeles, and I would wonder what jurisdiction a Los Angeles district court has over the Chinese government concerning software that was only to be used in China.

While the lawsuit does include the expected copyright claim, it also goes much further to claim trade secret violations and "conspiracy." And while the Chinese government is obviously the headline grabber, it also includes Sony, Lenovo, Toshiba, Acer, ASUSTek, BenQ and Haier, claiming that these computer makers were in on the conspiracy. While many of those have US operations, it seems like a longshot that (a) the court has jurisdiction over their actions in China or (b) the charge of "conspiracy" has any chance of sticking.

One of the more famous examples of abuses of the YouTube video takedown process was the case of Lenz vs. Universal Music, which involved Universal Music issuing a YouTube DMCA takedown to a woman who posted a very short clip of her baby dancing to a Prince song that was playing in the background. It was a clear case of fair use, and while after the woman filed a counternotice Universal chose not to sue, the EFF filed a lawsuit against Universal Music, saying that the DMCA notice was fraudulent, since it was such an obvious case of fair use. While Universal Music argued that since fair use is just a "defense" and not a "right" it need not consider fair use in sending a takedown, the court disagreed.

You would think, then, that any takedown notices on similar short videos of kids dancing to music would avoid a similar scenario. Copycense points us to the news that a guy has received a notice from Google of potential infringement for his short clip of his kid dancing along to what appears to be a version (not the original) of the Kool & The Gang song "Celebration." As in the Lenz case, this video is a kid dancing to somewhere around 30 seconds of a song: The notice claims that the video contains content for which the copyright is held by record label Razor & Tie. The guy who got the takedown seems a bit confused, in that he appears to be blaming McDonald's for the mess, when it appears McDonald's had nothing at all to do with the takedown. In fact, the record label Razor & Tie may not have anything to do with it either... as I'll explain below. The song used in the video was from a CD that came with a McDonald's Happy Meal. Looking around, it appears that in April, McDonald's announced a promotion with record label Kidz Bop to issue music CDs. Razor & Tie is the parent company of Kidz Bop. The problem here is clearly not McDonald's. All it did was include the CD in Happy Meals. It's got nothing to do with the takedown, and the guy's anger at McDonald's is misplaced (though, you could make the argument -- and it's a stretch -- that McDonald's should tell its partners to avoid these sorts of ridiculous copyright claims that scare people away from buying Happy Meals).

The next assumption, then, would be that Razor & Tie is guilty of sending the takedown, but I don't think that's true. If Razor & Tie had sent a DMCA takedown, the video would be down. When Google receives a DMCA takedown, it almost always (or perhaps always) pulls down the content immediately in order to retain its DMCA safe harbors. The user would then need to file a counternotice to start the process of potentially getting the video back up. The fact that the video is up and the notice the guy received simply tells him to review the videos suggests that no DMCA takedown was sent.

Instead, the blame almost certainly lies with Google's content recognition engine/filters that the record labels pushed them to use to try to catch copyright infringement ahead of time. Now, Razor & Tie is somewhat complicit here, in that it appears to have uploaded its catalog to train Google's filters (if I remember correctly -- and correct me if I'm wrong -- Google needs the copyright holder to submit copies for its filter to work). So, Google had this particular song on file, and noticed the similarity. Google's filter algorithms don't appear to consider fair use (or, perhaps more likely, they do a bad job of it in many cases) and the guy then is sent the automated notification, even though it makes everyone -- McDonald's, Razor & Tie and Google -- look bad, though the blame from the recipient appears to be in almost reverse order of culpability.

Unfortunately, the guy who received the notice also appears to be confused concerning his own rights. He says he is going to take down the video, though he clearly has a strong fair use case in asking for the video to be left alone. It seems likely that Google would allow the video to stay up, and I highly doubt that Razor & Tie would do anything else (it would be ridiculous to try to claim that this was not fair use).

Either way, this highlights a variety of interesting things. First, despite all the publicity of the Lenz case, these types of "takedowns" (even if it's not a DMCA takedown) still happen. Second, people on the receiving end of these notices assume that there is no recourse that would allow the video to stay up. People get official sounding notices and they assume they need to jump. Third, Google's content match filter isn't particularly good on fair use issues. Fourth, when these sorts of bogus notices are sent, it reflects very poorly on a variety of companies. In this case, McDonald's is getting most of the blame, despite being almost entirely blameless (well, it did decide to put out these silly music CDs, but that's a separate issue). Even Razor & Tie may be getting misplaced blame (though it may depend on the "rules" it set for Google's filter). Amusingly, it may be Google that deserves the most blame, and it appears to be getting the least.

Still, no matter what the situation, it's simply ridiculous that a guy filming 30 seconds of his kid dancing should have to worry about any of this.

While some other countries have caved to pressure from the entertainment industry and US diplomats to implement ridiculously draconian copyright laws, it's always nice to hear of some pushing back. Nicolas A. Barriga points us to the news that despite several attempts by Chile's president to pass extremely draconian copyright laws, that would force ISPs to actively police their networks and block access to content that was accused (not proven) of being infringement, the provision was definitively rejected (Google translation of the original). Apparently, it was rejected in such a way that the President can no longer re-introduce it.

What's interesting here (beyond a victory for user rights) is that a big part of the argument pushed by the entertainment industry representatives, was that this law was necessary to remain in compliance with trade agreements (there they are again) with the US. However, it appears that Chilean politicians recognized this was a load of bunk. Nothing in their trade obligations required such a solution. This sound similar to pressure put on countries like Canada and Israel, where they're told they need to introduce copyright laws well beyond anything in the US just to live up to their international obligations. So far, both Canada and Israel have pushed back, and it's good to see Chile doing so as well.

With the news that Australia has decided to censor the internet, a group of protesters decided to set up a website complaining about this effort by Communications Minister Stephen Conroy (who laughably called internet filters "100% effective" based on absolutely no metrics). In setting up this protest site, they were able to register the domain stephenconroy.com.au. Not surprisingly, that got some press attention, and suddenly the Australian domain authority, AuDA, took notice. As Slashdot points out, AuDA completely circumvented its usual due process mechanism, and it gave the holders of the site a grand total of 3 hours to defend themselves. When they asked for more time, they were shut down. Now, there are legitimate questions about whether or not they deserve this domain name. But you would think that AuDA would be willing to at least give them the normal amount of time to craft a reply and defend why the site is legit. The speed of the takedown certainly suggests political motivations -- more than a typical review process -- and highlights the very problem the site was set up to illustrate: why it's bad when the government can suddenly snuff out websites with views it does not like.

There have been lots of complaints about Peter Mandelson's "Digital Economy Bill" in the UK, which, beyond pushing a three strikes policy on the UK, would also grant Mandelson (or whomever he or future Business Secretaries deputize) the power to automatically change copyright law at will with no oversight. Scary enough, but it gets worse. As everyone's been focused on these clauses, they may have missed another scary one. Brian points out that another section, Section 124H, would also grant the Secretary of State the power to silently block access to any websites he dislikes. Yes, it would allow the Secretary of State to create a no-visit list that ISPs would have to block. And there would be no oversight (again). Oh, and it's not just websites. The order could be used for something like "block all BitTorrent" traffic. Seems like a bit much, doesn't it?

Not again. It seems that every single year or so, politicians in Australia suddenly decide that it makes sense to filter the internet to block out "bad stuff." And every time they do this, people point out how this is censorship, it doesn't work, it harms legitimate uses, and it's a waste of time and money... and eventually the whole thing dies down. But... it's back again. Communications Minister Stephen Conroy is pushing a plan to filter out a list of "criminal" sites. Amazingly, Conroy is claiming that a recent trial showed that filtering technology was 100% effective. That seems unlikely. Every year that this comes up, there are widespread protests about the censorship, but once again, the politicians don't seem to care. They just want headlines about how they helped "protect the children."

If you thought that the entertainment industry would stop at having the ability to force ISPs to kick people they accuse (not convict) of file sharing offline, you might want to pay attention to what's happening in South Korea. South Korea, of course, is home to very high broadband penetration, with exceptionally high speeds. And, not surprisingly, there's a lot of unauthorized file sharing going on there. Of course, if you looked at the Korean cultural world, you'd immediately learn that smart entrepreneurs and entertainers quickly learned to adapt and take advantage of this new world. Entrepreneurs like JY Park recognized the changing marketplace, and adapted -- and the massive success he's had with artists like Rain and Wonder Girls, suggests that perhaps "piracy" wasn't a big deal. All you need is some smart business people who can adapt.

But, of course, we've all seen what sorts of companies are afraid to adapt. The big record labels and the big movie studios couldn't be bothered with the tricky proposition of actually understanding the new marketplace and adjusting their business model. So, they went to the US government and said "something must be done." That "something" turned out to be a new "free trade" (ha ha!) agreement with South Korea, that had little to do with free trade, but plenty to do with pushing ridiculously draconian copyright laws on South Korea (i.e., protectionism for the entertainment industry, not free trade). Of course, these new laws went way beyond what any other country had, and included getting the government to shut down file sharing sites while restricting how user-generated content sites could work as well. Not surprisingly, once the law passed, various sites began restricting how they could be used, even limiting the uploading of any songs, even ones that users themselves had created. And, of course, with all that, a "three strikes" plan to kick people off the internet was also included.

You would think that the industry would be happy and leave well enough alone, right?

Of course not. Reader Dan alerts us to the news that some entertainment industry lobbyists are now demanding that all file sharing services must use content filters. Otherwise, they plan to sue. Just another reminder that for some of these folks, enough will never be enough. They will keep pushing for more and more, just as consumers keep pushing back on having their own rights stripped away.

And, don't think this is limited to South Korea. Many of the "leaked" points about the needlessly secretive ACTA deal are supposedly "based on" the trade agreement that was done with South Korea. So take a look at what's happening there and see if that's how you think copyright law should work in the US.