by Mike Masnick
Thu, Jun 5th 2014 8:39pm
by Mike Masnick
Wed, May 14th 2014 8:36pm
from the free-'em-up dept
[Update: 5.12.2014] One more thing – APIs like ours enable the kind of collaboration that makes the Internet great. We don’t think APIs are copyrightable subject matter, and don’t claim copyright in our APIs.This is good to see, and hopefully we'll see other companies with APIs doing the same thing. It will help separate out companies that want to encourage open innovation -- from those who want to lock things down. In the end, perhaps this whole thing will even backfire on Oracle, as it makes people that much less interested in working on technologies from a company looking to lock up innovation.
by Mike Masnick
Thu, May 8th 2014 12:35am
from the don't-fail-us-fcc dept
Along those lines, one FCC commissioner, Jessica Rosenworcel, has suggested that the FCC should put the brakes on its net neutrality plans to think things through a bit more carefully -- though apparently FCC boss Tom Wheeler has rejected that idea and plans to move forward with his rule-making proposal next week.
by Mike Masnick
Fri, Mar 14th 2014 1:36pm
from the time-to-fix-the-real-problems dept
Thankfully, Automattic's (makers of WordPress) general counsel, Paul Sieminski's testimony at yesterday's hearing highlighted this problem in a big way, pointing out that Automattic sees plenty of DMCA takedown abuse.
At Automattic, we've seen an increasing amount of abuse of the DMCA's takedown process. The DMCA's takedown process provides what can be an easy avenue for censorship: simply send in a DMCA notice claiming copyrights in a piece of content that you don't agree with. Regardless of whether you own the copyright, the service provider that hosts the content must take it down or risk being out of compliance with the DMCA.Sieminksi also discussed Automattic's recent decision to sue over two particularly egregious abusive DMCA notices -- and to highlight how there's really very little in the way of recourse for those whose legitimate content is taken down over such abusive tactics.
Recent cases of abuse have been well documented. For example, we recently filed an amicus brief in support of Stephanie Lenz's lawsuit against Universal Music Group. In that case, Ms. Lenz posted a home video of her young child dancing in their family kitchen to a song by the artist Prince. Soon after posting, Universal Music (Prince's record label) sent a DMCA takedown notice to remove the video, claiming it infringed on their copyright in the music playing in the background.
In our amicus brief, we, along with the internet companies who joined us, outlined many other recent examples of misuse of the DMCA that we've seen on our respective platforms. For example:
- A medical transcription training service using forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
- A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
- A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
- An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
- A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.
And this is not a small problem. The same day, the folks over at CDT released a detailed report on meritless DMCA takedowns of political ads, noting how frequently the DMCA is used to censor important political speech. Pointing out that these takedowns clearly have nothing to do with copyright and everything to do with censoring political speech, CDT notes just how damaging the DMCA has become on this front.
In addition to that, Ed Black from CCIA published a piece about how important it is to stop the abuses of DMCA takedowns, highlighting how it's often used to attack competitors or content someone just doesn't like:
Finally, Public Knowledge's Sherwin Siy has a great opinion piece at Wired, in which he talks about how the "notice and takedown" system was designed as a "compromise" between copyright holders and service providers, but completely left out the people that copyright is supposed to benefit the most: the public:
Congressional inquiry could shed light on how DMCA takedown tools have been abused. For example, academic researchers found a large number of cases in which businesses targeted competitors, such as one case identified in the recent Google Transparency Report where a driving school sought its competitor's homepage to be disappeared from search results, on the basis that the competitor had copied an alphabetized list of cities. Other examples of attempted takedowns involved an employer targeting blog posts by a disgruntled employee and a movie studio seeking to suppress a review.
DMCA abuse has also stifled speech over unfavorable interviews, embarrassing news stories, and political campaign videos. Some rights-holders fired multiple takedowns at an unflattering documentary about their legal war with the Pirate Bay. HBO even sent takedowns over lawful open source software, and just last week, it was reported that the DMCA was used to try to take down publicly available facts (which likely aren't even protected by copyright).
This is not a two-sided issue. By only looking at copyright holders and online services, we neglect the interests of the most populous sector involved in copyright law: the public.We've discussed in the past how there are serious First Amendment concerns about "notice and takedown" provisions, in that they use government pressure to stifle free speech, placing huge potential liability on companies who don't disappear content based solely on the say-so of a single party.
The safe harbors essentially are a safe harbor for online services, which host users' content like YouTube or Facebook. If a user of those services uploads something that infringes copyright, the host's liability is limited so long as it acts promptly to a takedown notice from the copyright holder. Each side gets something: the copyright holder gets a rapid removal of the infringing content, and the host gets safety from a potentially costly infringement lawsuit. But what happens to the users? Their uploads have been removed, and they're still potentially on the hook for massive statutory damages in a lawsuit.
And the simple fact is that there are better systems that would minimize the censorship risk. A basic "notice and notice" system is greatly preferable to a notice-and-takedown system (and, of course, the ridiculous notice-and-staydown). Under a notice-and-notice system, after receiving a notice, the service provider alerts the actual person who uploaded/created the content that is being targeted as infringing, providing them an opportunity to respond prior to taking down the content. There could be a set time, after which a lack of response would lead to a takedown. That way, most legitimate content is not censored, and the power of the DMCA safe harbors as a tool for censorship is greatly limited. Actually infringing content still gets removed in a timely fashion. It's such a reasonable solution that it will never happen with this Congress.
by Mike Masnick
Thu, Mar 13th 2014 10:45am
Google Points Out That Even The Copyright Office Thinks Judge Kozinski's 'Innocence Of Muslims' Ruling Is Wrong
from the that's-not-copyrightable dept
Google's brief also includes one rather important new piece of information: after the ruling came out, the Copyright Office rejected Garcia's attempt to register that same copyright.
While this lawsuit was pending, Garcia also was pursuing her copyright on another front. On September 25, 2012, she filed an application with the U.S. Copyright Office in order to comply with 17 U.S.C. § 411(a), which requires such an application as a prerequisite to any copyright infringement suit. On December 18, 2012, however, the Copyright Office wrote to Garcia’s lawyer and informed her that, barring further information from Garcia, Garcia was not entitled to register a copyright.... “For copyright registration purposes, a motion picture is a single integrated work,” it wrote. “Assuming Ms. Garcia’s contribution was limited to her acting performance, we cannot register her performance apart from the motion picture.” ... The Copyright Office informed Garcia’s lawyer that unless she could provide further information about Garcia’s role, her application would be rejected.... Garcia responded by asking the Copyright Office to delay its adjudication of her application until after the panel ruled in this case....While I often disagree with the Copyright Office on things, nearly everyone should at least agree that it tends to lean towards a more copyright maximalist point of view, happy to allow copyrights on nearly everything. For even it to reject the copyright here, and do so forcefully, suggests that Judge Kozinski's ruling is way out of line -- and, at the very least, deserves a more thorough rehearing.
On March 6, 2014, the Copyright Office issued a letter rejecting Garcia’s application.... It explained that “the U.S. Copyright Office * * * views dramatic performances in motion pictures to be only part of the integrated work— the motion picture” and that the Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”.... The Office also explained why it was inappropriate for it to delay its ruling during the pendency of this case. Citing 17 U.S.C. § 411(a), it wrote that “Congress expressly envisioned that registration decisions by the Register of Copyrights would precede adjudication in the courts” so that the courts have the benefit of the Copyright Office’s decision and so that the Office can intervene to defend that decision.... When applicants institute lawsuits prior to the Copyright Office’s decision, it explained, “the Register’s statutory right to intervene in an action instituted pursuant to a refusal to register is nullified.”
Google goes on to explain why, even without this, the original order should be put on the shelf while the court reconsiders, again making a very compelling argument that Garcia has no copyright interest and no case. I won't rehash the arguments here, but they're worth reading. At the very least, it's difficult to see how anyone (even those who agreed with the original order) can't see how the ruling is controversial, raises serious issues, and deserves to be stayed until the court can make sure this is the result it thinks is appropriate.
Garcia's brief on the other hand, dispenses with careful legal logic, and plays heavily on emotion -- reprinting some of the "death threats" Garcia received for her appearance in the video. While these were, no doubt, distressing to Garcia, that is unrelated to the actual copyright question at play here, and seem designed solely to lead to an emotional reaction, like the one it appears Judge Kozinski had. Even when the filing does delve into making actual legal arguments, they seem questionable. For example, Garcia's lawyer dismisses the idea that appearing in only 5 seconds of the film has any bearing on the copyright question, and even quotes Judge Learned Hand saying: "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." But that's both misleading and not applicable here. This is not an issue of plagiarism. It's a question of copyright infringement, and de minimis use and fair use (where the amount of the work plays a key role) are well established. To pretend that these issues are meaningless is to ignore some rather basic copyright law (though, so is claiming that an actress has a copyright interest in a movie).
Reading through the two motions you get a sense of two very different levels of expertise concerning copyright law. On top of that, a third filing, from lawyer Andrew Bridges representing a bunch of internet companies, including Automattic, Twitter, Facebook, Pinterest and IAC (and indicating more may soon sign on), suggests that a large part of the internet ecosystem is about to weigh in on why Kozinski's ruling is absolutely insane as well. Hopefully, the court at least recognizes that it should rehear the question of whether or not a stay should be granted on the original prior restraint order.
by Mike Masnick
Thu, Nov 21st 2013 9:38am
from the kudos dept
Today, there's a very interesting new entrant, fighting two separate cases to go after the senders of totally bogus DMCA notices that were solely designed to censor. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against egregious cases of DMCA abuse. These are actually two cases that we've written about as examples of using the DMCA to try to censor criticism. The first involved an attempt to remove a series of articles on the excellent RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of researcher Anil Potti. As we noted at the time, this appeared to be an egregious use of the DMCA to censor content that someone didn't like. The second is the more recent example of the group Straight Pride UK giving an interview to student journalist Oliver Hotham, then deciding that they didn't like the fact that they sounded like idiots in the interview, and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham.
Automattic has teamed up with Ivan and Adam in one case, and Oliver in the other, to seek damages under 512(f). While the initial cases themselves are interesting, it's doubly interesting to see Automattic itself get involved. Traditionally, the focus for 512(f) claims had been directly on the site owners, not the service providers. But Automattic's General Counsel Paul Siemniski explains that the company feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse:
Until there are some teeth to the copyright laws, it’s up to us - websites and users, together - to stand up to DMCA fraud and protect freedom of expression. Through these suits, we’d like to remind our users that we’re doing all we can to combat DMCA abuse on WordPress.com….and most importantly, remind copyright abusers to think twice before submitting fraudulent takedown notices. We’ll be watching, and are ready to fight back.Kudos to Automattic for this move. It's a step beyond what pretty much every other service provider who receives bogus DMCA notices has done. Automattic notes that a large part of the problem is that these situations aren't anomalies. They happen all the time -- and are frequently for improper reasons, such as for censorship and attempting to unmask anonymous bloggers.
We’ll also be actively involved, on behalf of our users, in trying to change the law - both through court cases and in Congress - to make sure that everyone has the right to share their voice on the Internet without threat of censorship.
We receive hundreds of DMCA notices and try our best to review, identify and push back on those we see as abusive. Our users have the right to challenge a DMCA complaint too, but doing so requires them to identify themselves and fill out a legally required form saying that they submit to being sued for copyright infringement in a place that may be far away. If they don’t, their content is taken down and could stay down forever. This tradeoff doesn’t work for the many anonymous bloggers that we host on WordPress.com, who speak out on sensitive issues like corporate or government corruption.Given the history of 512(f) cases for "knowingly materially misrepresenting" a case of copyright infringement, these cases may be an unfortunately uphill battle. But, they could serve a few very important purposes. First, it will hopefully make people think twice about sending a bogus DMCA notice over a Wordpress.com site, knowing that they may face a lawsuit. Second, at the very least, getting more cases on the books showing how toothless the law currently is to fight DMCA abuse hopefully will lead to the law being fixed, such that abusing the DMCA to stifle speech will have real penalties under the law.
by Mike Masnick
Wed, Jan 11th 2012 4:18am
from the welcome-to-the-club dept
Normally we stay away from from politics here at the official WordPress project — having users from all over the globe that span the political spectrum is evidence that we are doing our job and democratizing publishing, and we don’t want to alienate any of our users no matter how much some of us may disagree with some of them personally. Today, I’m breaking our no-politics rule, because there’s something going on in U.S. politics right now that we need to make sure you know about and understand, because it affects us all.And if you think WordPress is just some small tech player, you haven't been paying attention. WordPress is huge:
We are not a small group. More than 60 million people use WordPress — it’s said to power about 15% of the web. We can make an impact, and you can be an agent of change. Go to Stop American Censorship for more information and a bunch of ways you can take action quickly, easily, and painlessly. The Senate votes in two weeks, and we need to help at least 41 more senators see reason before then. Please. Make your voice heard.Yeah, but no one's really against these bills, right SOPA/PIPA supporters? As Jane Wells, who wrote the post about this, notes, she's "freaked the heck out," because this bill threatens some of the fundamental principles of the internet, the same principles that democratized publishing and the independent web.
Every time you click Publish, you are a part of that change, whether you are posting canny political insight or a cat that makes you LOL. How would you feel if the web stopped being so free and independent? I’m concerned freaked right the heck out about the bills that threaten to do this, and as a participant in one of the biggest changes in modern history, you should be, too....People are speaking out in droves. Will Congress still ignore them?
Blogging is a form of activism. You can be an agent of change. Some people will tell you that taking action is useless, that online petitions, phone calls to representatives, and other actions won’t change a single mind, especially one that’s been convinced of something by lobbyist dollars. To those people, I repeat the words of Margaret Mead:
- In the U.S. our legal system maintains that the burden of proof is on the accuser, and that people are innocent until proven guilty. This tenet seems to be on the chopping block when it comes to the web if these bills pass, as companies could shut down sites based on accusation alone.
- Laws are not like lines of PHP; they are not easily reverted if someone wakes up and realizes there is a better way to do things. We should not be so quick to codify something this far-reaching.
- The people writing these laws are not the people writing the independent web, and they are not out to protect it. We have to stand up for it ourselves.Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.
by Mike Masnick
Fri, Dec 17th 2010 7:39pm
from the wtf dept
The whole thing, of course, is pretty ridiculous, but seeing as we have seen a growing number of copyright complaints over lyrics sites, you could see a potential lawsuit. Of course, it's hard to see how the use of such lyrics in the plugin -- in any way -- cause any harm to the song or the composer. In fact, chances are it has done the exact opposite. But such is the state of copyright laws today that doing something as simple and as fun as creating the Hello Dolly plugin may have made copyright infringers out of millions of bloggers. Of course, there's a pretty strong argument for fair use in this case, but tragically, due to copyright law customs, you can't know if it's really fair use until after there's an actual lawsuit. Hopefully, this is all moot and no one actually sues. But it's a rather sad statement that a plugin famous for this description:
This is not just a plugin, it symbolizes the hope and enthusiasm of an entire generation summed up in two words sung most famously by Louis Armstrong: Hello, Dolly.might have to be killed of due to copyright fears. Thanks, copyright, for killing off a symbol of hope and enthusiasm of an entire generation.
by Mike Masnick
Mon, Sep 13th 2010 5:55pm
from the didn't-see-that-coming dept
Mon, Jul 26th 2010 5:10pm
from the family-feud dept
This kind of disagreement also highlights the fact that free software licenses (like the GPL) and the free culture licenses they've inspired (like some of those offered by Creative Commons) are ultimately hacks on a restrictive copyright system; they're merely tactics to reverse the negative effects of overly restrictive copyright, but not at all the ideal scenario. For example, we've seen concerns over how Creative Commons licenses act as a contractual layer on top of copyright, and non-commercial restrictions can also be a source of tension. Sometimes these disputes help a community to better develop its position on copyright and licensing, but other times, they're a sign that these licenses are still just a hack on a less than ideal system.
It'll be interesting to see how Thesis fares in the long-run with a split licensing approach compared to other premium themes that are 100% GPL. Regardless, it's nice to have a more or less happy ending where the community was able to resolve things without getting the courts involved.