Popular cloud service provider Dropbox has announced the ability to share stuff in your Dropbox with a link. This is not a revolutionary offering. It's actually pretty common and can be quite useful for simple sharing of files. But, as Mathew Ingram noted, this is exactly part of the reason that Megaupload was accused of criminal conspiracy. For example, the fact that Megaupload did not provide a "search" feature to find all the content in its cloud, but merely let people link in, was seen as a way to "hide" the fact that infringing material was available. I am assuming -- given the way Dropbox operates -- that it, too, is not intending to provide a search engine. It's good to see Dropbox confident enough that it won't be shut down on questionable criminal charges -- but it certainly continues to raise questions about what the government considers evidence of criminal conspiracy... and how that could create a chill on companies who are, perhaps, less well established than Dropbox. Update: As some have pointed out in the comments, the specific feature is more about viewing content via the link, not downloading. Sorry, we should have been clearer. However, again, this fits with the Megavideo style offering of providing access to content without necessarily downloading it. Still appears to be exactly the part that so concerned the Justice Dept...

It appears that the MPAA has jumped into a legal dispute that hits on a few different points, all of which are interesting, but the really crazy point is the fact that the crux of their argument is that merely embedding or linking (technically, the same thing) to infringing videos is infringement itself -- and someone setting up a site that lets people embed or link should also be guilty of infringement. This is, to put it mildly, crazy talk from an organization that still seems to have an institutional cluelessness about how the internet works. To be sure, there are a few different issues related to this case, which was really about porn company Flava Works suing the site MyVidster and its owner, Marques Gunter. MyVidster lets people link or embed videos from other sites. It did not host any of the content itself. In accordance with the DMCA's notice and takedown provisions, Gunter would take down any embeds or links when he received a notice. However, the judge said that the site lost its DMCA safe harbor provisions because he did not take any further action: specifically because he did not cut off repeat infringers:

“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”

Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively "investigate" content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don't quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed -- and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That's ridiculous, but that's how the law is set up.

Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense "server test." Basically, it's this: is the content distributed from your server? No? Then you're not the one guilty of direct infringement. This makes sense because it's correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that's what Google and Facebook explained to the appeals court.

So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it's the folks who think the server test is reasonable who are out to lunch:

"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."

I realize that the MPAA isn't known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They're linking to someone else's server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That's it. When merely pointing someone to another server is seen as direct infringement of a performance right, we've got serious problems.

And it doesn't end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:

... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.

Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is "willfully blinding." That's wrong. It's obnoxiously wrong. It's the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it'll find a clueless court to agree.

This is what's so pitiful about the MPAA. When they lose, they don't realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they've lost this argument in court over and over again.

First, let me say that I occasionally do shop at Lowe's, but not that often. There is one literally across the street from my office, so it's easy to stop by after work -- but my office is a good 25-minute drive away, so if I just need stuff on weekends, there are about six Home Depots that are much, much closer. Lowe's also feels oddly sterile, whereas Home Depot has the feel of a place where people are actually getting stuff done. That said, I'm sort of in awe at the monumental insanity of Lowe's having a special license agreement you're supposed to fill out to link to its site (as pointed out by Ars Technica's Nate Anderson): Not quite knowing where to start, I figured I'd just list out the ways that this is just crazy:

1. Okay, let's start with the obvious one: you don't need, have never needed and will never need a license to link to another website. Sorry. It's just ridiculous to even contemplate such a thing -- especially in this day and age.
2. Yes, okay, so we've heard a few stories of sites doing similar things in the past... but they were either wacko sites run by nutty people, or they happened a decade or more ago, before people understood the web. Well, or a government-connected bureaucracy. That this would be a giant retailer in 2012 requiring such a license to link? That's just insane.
3. Note that they have not one, but three separate licenses to link. The other two are much more about if you're using logos or other trademarks, which is only slightly more understandable (though there are plenty of situations under which you wouldn't need a license to use their logo or marks either...). But this highlights the key insanity. If it had just been one license that talked about logo/mark usage, they may have been able to claim that's really all they meant. But here, they've specifically carved out the situation under which no logo/mark is being used. In other words, they've deliberately carved out the situation in which no license would ever be needed.... and then offered up a license for that. That's insane.
4. The only way to send the signed license in is to fax it. Yes. The only way. For a license about internet links. Is to fax it. Fax. That's insane.
5. Lowe's insists that it can terminate this license for any reason. Except... um... such a license is not valid and anyone can link to them. So, terminate away.
6. When Anderson contacted Lowe's PR about this, rather than taking down the bogus license or just running and hiding in shame for being digitally clueless, the company stood by the license:

   "Managing link agreements is part of protecting our brand," is the polite reply I received. "The process we have in place to handle links to lowes.com is a business decision."

   Let's be clear about this: nothing in that statement makes one iota of sense. It's pure insanity. Managing link agreements does nothing to protect your brand, because it's licensing something that doesn't require a license because you have no control over it. At all. In fact, it's the opposite of protecting your brand, because it makes your brand, and your entire company, look clueless. Also, it may have been a "business decision," but it's one that makes no sense, carries no legal weight, and makes the company seem entirely ridiculous.

Of course, it looks like it might be working in keeping people from actually linking to Lowe's. If I do a quick search to see how many sites are linking to Lowe's, Google tells me 822. If I do the same for Home Depot, it's 27,700. Perhaps Lowe's might want to stop restricting how people link to it...

James Firth has an interesting post, talking about some of the more ridiculous consequences of current US law enforcement interpretation of copyright law. Looking at the case of Richard O'Dwyer, the computer science student that the US is getting closer to extraditing to the US to face criminal copyright infringement charges for merely linking to infringing works (something that had already been found legal in the UK multiple times), Firth takes it to its logical ends. He points out that George Orwell's works, Animal Farm and 1984 have gone into the public domain in South Africa, Canada or Australia. And thus, there are completely legal free copies of such works online. But they're only legal in those countries. In the US and the UK, both remain under the yoke of copyright thanks to copyright extensions.

This leads to a simple fear. If he merely pointed people to the location of these completely legal versions of the work, he would now be just as "guilty" as Richard O'Dwyer under the interpretation of the US Justice Department. After all, he is using a .com domain (American property, according to the stretched interpretation of the DOJ) to link to works that technically infringe in both the UK -- where he is -- and the US, where the DOJ has suddenly become the US entertainment industry's private police force.

This is creating a truly chilling effect on speech around the globe. The public domain is the public domain for a purpose, and it's somewhat insane to think that US actions are now chilling the mere discussion of where public domain works in other countries can be obtained completely legally in those countries.

If the Justice Department hoped that it could seize the domain of a hip hop blog for over a year with no due process and then return it quietly and pretend nothing had happened, it may be in for a bit of a surprise. About an hour and a half after we broke the story, it just so happened that Rep. Zoe Lofgren was in a Judiciary Committee hearing with Attorney General Eric Holder, providing her an opportunity to ask him about the situation. You can see the full five minute exchange below: There's not much of substance there. Holder basically says that he doesn't know the specifics, hopes that there's more to the story, and promises that since his daughters are watching and it has something to do with hip hop, that they'll be the first to remind him to respond to Lofgren's question once he has more details.

It looks like he may be getting other reminders as well. Senator Ron Wyden told Wired that he intends to start asking significant questions about Operation In Our Sites, and it doesn't sound like he's going to give up easily:

“I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,” said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was “particularly interested in learning how many secret dockets exist for copyright cases. There doesn’t seem to be an obvious precedent or explanation for that.”

I'll certainly be interested to see what they turn up.

We've noted over and over again that Spanish courts have quite reasonably interpreted Spain's copyright law to mean that a site that just links to infringing content is not liable for the infringement. This makes a lot of sense. You should not blame a third party for the actions of its users. Yet the entertainment industry has made these rulings out to be an absolutely horrible miscarriage of justice, and have -- with the support of the US government -- pushed hard for draconian new copyright laws within the country. While public outcry (and leaked State Dept. cables showing that the US was really behind it) helped derail the effort the first time around, supporters are still trying to push it through.

However, while the existing law stands, it's a bit surprising to see that one Spanish court has gone completely in the other direction and found the operators of a couple sites to be guilty of criminal copyright infringement, for which they may face a year in jail, in addition to fines. The lawyer for one of the guys suggests that this ruling is a result of politics, not the law. It's hard not to think that way given how it appears to fly in the face of most other decisions in Spain. I would imagine that there's still going to be an appeal in the case before it's really settled.

For a few years now, we've been pointing out that various Spanish courts have reasonably ruled that merely linking to infringing works hosted elsewhere is not infringement. It seems that Spanish courts have to keep repeating this, and now there's yet another ruling, this time from an appeals court, once again pointing out that linking is not infringement. It's nice to see the courts keep saying this, though it only seems to give fodder to the entertainment industry to whine about how Spain's copyright laws need to be fixed. Let's try this on for size instead: it actually seems to show that Spain knows how to properly apply liability and to not blame an intermediary service provider for actions of its users.

The Pirate Party in the Czech Republic is trying to show that linking is not a crime by putting up sites that merely link to some infringing material. The party is doing this to support a high school student facing massive fines for linking to some works covered by copyright. I do wonder, however, if this will backfire. Law enforcement, industry folks and politicians who simply don't understand the technology will not realize the point of such a site, and merely assume that it's yet another "piracy" site. I would think a more effective means of doing this would be to merely iframe the results of a Google search...

Well, look at that. The Associated Press has reached 1993 or so, and realized that they can (and probably should) link to other sites when reporting on a story that those other sites reported first. Of course, they're still learning some of HTML's features, such as the idea that you can link to actual words in a story. Instead, they'll be putting the links (via Bitly) in parentheses right after they cite the source.

Pickups will now include a parenthetical bit.ly link to the original story, in addition to the credit. So in the fireworks story, you might see: “According to the Boston Globe report (http://bit.ly/pDHZ6h)...” The change will be most noticeable on state wires, where pickups are common.

And, of course, they're still working out the kinks. Apparently, some of the tests didn't show up as links, but instead showed the full HTML text for a link (i.e., <a href="...">). Oops. Still, we welcome the Associated Press to the world wide web. Look around, you might enjoy it. Just, please, skip over the blink tag phase.

A short while ago, we were openly discussing how not to hold an open discussion in the free air of the internet. It was a highly editorial post, stating my (and apparently, others') disagreement with the view that the "high road" is composed of off-hand insults and closed comment threads.

With that in mind, I bring you another blogging faux pas, courtesy of the Copyright Alliance blog. In a post titled "Setting the Record Straight on PROTECT IP," Sandra Aistars takes aim at an article posted elsewhere on the web:

Since the introduction of the PROTECT IP Act we frequently see articles and blog posts that severely mischaracterize and make false assertions about the legislation. For example, today we noticed a piece that claimed that the PROTECT IP bill would be a detriment to entrepreneurship. As an organization that represents individual artists and creators, who are themselves entrepreneurs and small businesses, we share the author's concern for entrepreneurship and economic growth. The creative sector in the United States, which is comprised largely of people you would consider the copyright owner next door, accounts for 11.1 million jobs across the country. Unfortunately his portrayal of the PROTECT IP bill is factually inaccurate in virtually every respect.

This is quoted verbatim. If you haven't noticed by now, there are no links to the original article or any mention of who wrote it. Considering this lack of information, Aistars could be talking about something her neighbor wrote and shoved under her door for all we know. In this day and age, I don't see how you can expect to tackle someone else's arguments without at least mentioning their last name.

It's a shame, too. Aistar's post does a fairly good job laying out her disagreements (even if I don't agree with all of her disagreements) in a very easy-to-follow point-by-point argument. (Although, she does spend more time than is needed pounding home the point about the bill addressing only sites dedicated to infringement, which according to the beneficiaries of this law include archive.org, Vimeo, Soundcloud and 50 Cent's personal website.) The problem is, no one knows who she's arguing with and even worse, nobody can verify whether this mystery person made the claims she's attributing to them.

It would seem that linking to the original article would be second nature... unless you're trying to avoid people actually reading what you're arguing with.

If you're confident in your argument, why wouldn't you link to the article? Techdirt disagrees with pretty much everything and yet, every post links to the source of disagreement. But the more Aistar calls out "the author" as a nameless, linkless being, the less inclined most people are to believe that her piece is even-handed.

If you haven't Googled up the solution to this "mystery writer," I'll go ahead and provide you with the link that the Copyright Alliance apparently couldn't get coded in by presstime:

"Blacklisting Entrepreneurs: PROTECT IP Could Harm Web Startups" by Paul Kedrosky 

Of course, it's no use rushing to the Copyright Alliance blog to ask why this was handled this way. The comments are closed and pingbacks have been politely asked to leave. Ironically enough, Copyright Alliance did take the opportunity to exercise their one-way rights and leave a comment on Kedrosky's post, which takes this whole situation past "obtuse" and into "egregious." Since I told myself that I'd be very even-handed in dealing with this bizarre breach of internet etiquette, I'm ending this post now and opening it up for discussion. Have at it.