Chilling Effects Clearinghouse Weather Reports

Ohio County's Free Wi-Fi Shut Down Over a Single Complaint

Rebecca Schoff, Chilling Effects Clearinghouse, November 13, 2009

Abstract: The chilling effect in Coshocton County, Ohio, was in obvious evidence last week when a single complaint from Sony Pictures Entertainment caused the county to shut down its free Wi-Fi service.

Coshocton County started providing free wi-fi service in the area around the county courthouse about five years ago. The Coshocton Tribune reports that the service was used by many. Out-of-towners with business near the courthouse could access it from their cars. County Sheriff's deputies could file traffic or incident reports from their cruisers. During county festivals held near the courthouse, vendors could use the network to process credit card transactions. The free municipal wi-fi provided Internet access in a way that directly benefited the public.

Last week the county's ISP, itself described on Freakbits as "an award-winning, non-profit organization serving Northern Ohio by connecting public and non-profit institutions to their fiber-optic network," received a complaint from Sony alleging a single illegal download of a film. In response, the county shut down the service.

The county is described as "cash-strapped" and, while their IT director has researched software filters that would prevent illegal downloads, county commissioners doubt that the cost to implement the program would be "justified for the free service."

The incident illustrates the unique pressure put on free municipal services of this type. With public funds scarce, it's understandable why the county would move to avoid legal threats in the quickest and cheapest way possible. Wendy Davis of the Daily Online Examiner points out that no evidence was established that the allegation of an illegal download was true. She cites the paper published by University of Washington computer scientists last year, demonstrating that legal uses of BitTorrent technology unrelated to the sharing of copyrighted material can attract false, unfounded DMCA takedown notices for a range of reasons, including bugs in software. Coshocton County says that it will investigate to try to determine what triggered the complaint from Sony, but in the mean time the county wi-fi is dead.

We owe a hat tip to Techdirt on this one, where Michael Masnick notes that the MPAA, when interviewed by the Coshocton Tribune on the issue, "doesn't seem concerned at all about the collateral damage."

UPDATE: Michael Masnick has an update on the story: an embarrassed Sony has asked the county to put its wifi back up!

German Murderer Threatens to Censor Wikipedia

Rebecca Schoff, Chilling Effects Clearinghouse, November 13, 2009

Abstract: A convicted murderer is attempting to have his name removed from the English-language version of Wikipedia and all other media coverage of his crime under a German law that protects private citizens from having their names and likenesses published against their will.

Wolfgang Werlé, who was convicted of the cruel murder of a well-known German actor, has employed the wonderfully named law firm of Stopp and Stopp to send cease and desist letters to media outlets covering his crime and his release. The German-language version of Wikipedia has reportedly already been sued and the English version has been threatened with legal action if the name of the murderer, who was recently paroled after serving fifteen years of a life sentence, is not removed from the article on Walter Sedlmayr, the victim. The Electronic Frontier Foundation notes that Werlé has also sued an Austrian ISP for the publication of his name and that case may go to the European Court of Justice.

The cease and desist letter sent by Stopp and Stopp (posted here at Wired and here on Chilling Effects: German Convict Seeks to Censor Wikipedia) makes the following argument:

"German law provides that our client is not a public figure after many year have passed [sic] since the crime. The German courts including several Courts of Appeals, have held that our client's name and likeness cannot be used any more in publication regarding Mr. Sedlmayr's death. . . ."

The problem is that Mr. Sedlmayr's "death" was a criminal matter of public concern. Sedlmayr was a beloved German actor, whose career stretched from 1949 to 1988 before his death at the age of 64, according to the information available at IMDB. German media online here and here still describe the nature of the killing: Sedlmayr was found in his home, bound, stabbed, and beaten to death with a hammer. German media, however, no longer fully identify the men convicted of the crime: Wolfgang Werlé and his half-brother Manfred Lauber, who reportedly knew Sedlmayr personally. The respected German magazine Der Spiegel refers to the two as "Wolfgang W." and "Manfred L." The German-language version of Wikipedia now merely refers to the "Verurteilten"—the convicts. American media coverage of the cease and desist letter, much of it including photos of Werlé in addition to his name, has mushroomed in the past two days (check out the Huffington Post's coverage, for example).

In an interview with Wired, EFF lawyer Jennifer Granick noted that if a media outlet lost a suit like the one threatened by Werlé, German privacy laws would require not only that the outlet cease reporting the names of the paroled convicts going forward, but also that it "go back and change what is already being written"—even "online archives" would have to be scrubbed of the convicts' names. Indeed, the link to Der Spiegel above is actually to a 2007 article on the brothers' release, which has apparently now been edited to remove their full names.

The application of this German law to news and information outlets in the United States is unthinkable. Having effectively silenced their victim, under this law, murderers would be free to silence the media, to wipe the history of their crimes from their identities. Imagine a world in which Charles Manson's name was not used in histories of the 1960's. Now imagine that he's been released and that the news media recount his crimes, but are not allowed to report his name.

The application of German privacy laws in this case would seem to prioritize the ease of re-assimilation for convicts following their release. In sharp contrast, United States law prioritizes basic freedoms of speech and press, not to mention the public's right to know a fact of public concern (which includes the early release of a violent criminal). All fifty states, for instance, have publicly available sex offender registries.

Nonetheless, Stopp and Stopp, who both received law degrees in the United States, claim that "[a]s [Wikipedia's] article deals with a local German public figure (such as the actor Walter Sedlmayr), we expect you are aware that you have to comply with applicable German law." We expect that Stopp and Stopp are aware that the United States Constitution has a First Amendment.

As the EFF points out in the article linked above, there has already been a U.S. district court ruling in which the imposition of a foreign speech restriction was found to violate the First Amendment. That was LICRA v. Yahoo!, but it was overturned in the Ninth Circuit for lack of personal jurisdiction over the French party. The speech restriction in that case was a French law that forbade the commercial exhibition of Nazi memorabilia to the French people. (One of the remedies the court ordered was the posting of warnings on the French-language version of Yahoo! that following links to sites on the English-language version could violate French law.) A suit against the English-language version of Wikipedia might similarly turn on questions of jurisdiction (which would be controlled by the rules of civil procedure, not by the subject of the speech in question).

In other ways a suit against Wikipedia would be markedly different from the Yahoo! case. The Yahoo! case was about restrictions on sales to the French people. Werlé 's threat against Wikipedia is about restrictions on the information made available to Americans. Applying German privacy laws to American-based websites would radically restrict their ability to report facts to Americans—and eradicate the balance between personal privacy rights and the First Amendment that has been struck by American law.

If German law wants to provide a remedy to convicts that will restrict the free flow of information from the Internet to the German people, there are models of restrictive filters available in China and Iran. Depriving the American public of the protection of the Constitution should not be available as a remedy for embarrassed murderers in Germany.

Pending Legislation Could Make ISPs Liable for Financial Fraud

Rebecca Schoff, Chilling Effects Clearinghouse, November 6, 2009

Abstract: John Timmer over at Ars Technica has reported that a bill introduced in Congress last month would make Internet service providers liable if a particular kind of financial fraud is perpetrated on their networks.

The bill, HR 3817, proposes a specific extension of ISP liability: it would apply in cases where someone using the ISP's network misrepresents himself as a member of the Securities Investor Protection Corporation, a federal agency that aids investors when their brokerage firm fails or when their assets are stolen by a broker. In order to be held liable for damages, the ISP would also have to be aware that the information on their servers or network was fraudulent in this way, or take no action to prevent access after having been informed of the misrepresentation.

Timmer points out two concerns, the first is a "lack of clarity about how [these sanctions] might be implemented," since the bill doesn't provide for any notice or takedown process analogous to the DMCA's process. Ultimately, Timmer comments, "it's a bit disturbing to see that the first response to fraudulent content on the Internet is an attempt to force the ISPs to police the content they transmit."

The bill is still in the early stages and these provisions are just a small part of it, but it seems clear that this is legislation worth watching.

Here's a link to the Jurist article covering the bill's approval by the House Financial Services Committee. That article includes a link to the full text of the bill and a record of its progress through Congress on Congress's Thomas database.

Takedown Hall of Shame Debuts at Electronic Frontier Foundation

Rebecca Schoff, Chilling Effects Clearinghouse, November 5, 2009

Abstract: The Electronic Frontier Foundation has inaugurated a new venue for exposing bogus copyright and trademark claims that stifle free speech on the Internet.

As part of their "No Downtime for Free Speech Campaign", the Electronic Frontier Foundation has created the Takedown Hall of Shame, a web site calling attention to egregious abuses of trademark and copyright law. Many of the featured takedown notices suggest calculated efforts to use intellectual property law to silence critics or political opponents and, as such, are deeply concerning. (The DMCA does provide a cause of action against a certain kind of misuse of the takedown process, see DMCA Notices.) All the takedowns noted in the Hall of Shame are really worthy of attention, but our personal favorite is Universal Music Group's attempt to yank down this video of a dancing baby. That's right: UMG shot off a takedown notice to a couple of proud parents sharing a clip of their bouncy, giggly baby dancing to Prince's "Let's Go Crazy."

Those parents used the counter-notification process to have their video reinstated on YouTube and then fought UMG in court, represented by lawyers from the Electronic Frontier Foundation. As of August 2008, the U.S. District Court for Northern California denied Universal Music Group's latest motion to dismiss the case, and rendered a landmark judgment that copyright holders must make a good faith consideration of fair use before sending takedown notices. You can follow the case on the EFF site here. Rock on, dancing baby, rock on!

Trademark Disunity: Clear Channel Zaps "Unity Day"

Research Staff, Chilling Effects Clearinghouse, October 9, 2009

Abstract: After announcing that Philadelphia radio station WDAS would not be able to sponsor the Unity Day festival for the first time in 30 years, Clear Channel has used an allegation of trademark rights in the name "Unity Day" to prevent citizens from raising funds and obtaining city permits to keep the tradition going.

The first "Unity Day" in Philadelphia was held in 1978. Over the past thirty years, the event, produced by Philadelphia radio station WDAS and sponsored by other corporations, has grown into an annual community celebration of African American culture, drawing tens of thousands of spectators together to enjoy food, family activities, and live music. This year, Clear Channel, which owns WDAS, announced that the economic downturn would prevent them from sponsoring Unity Day.

Amidst the great disappointment, a group of concerned citizens started to raise funds and formed a corporation, Unity Day on the Parkway, Inc., with plans to sponsor the festival themselves and return it to its traditional venue, the Benjamin Franklin Parkway. Clear Channel responded by claiming trademark rights in the name "Unity Day." They sent a cease and desist letter to Unity Day on the Parkway (posted here Clear Channel Claims Ownership of "Unity Day"), demanding not only that they use some other name for their festival, but that they also cease and desist from making any reference to previous Unity Days on their website. The current website contains historical photographs, including an image of the late State Representative Dave Richardson playing at the 1979 Unity Day softball game.

Though Unity Day on the Parkway argued that the name "Unity Day" is too generic to serve as a trademark for Clear Channel's services, the allegation of trademark rights temporarily halted the city permit process. The traditional date of the third Sunday in August has passed for 2009 and now Unity Day on the Parkway has vowed to try to hold a Unity Day next year. For more information on genericism and other limitations of trademark rights see Trademark.

What was the goal here in pressing trademark rights on a festival that had become a community tradition? The news that Clear Channel was not able to sponsor the event had been very public, so confusion as to whether Clear Channel was involved this year seems unlikely, and could have been cleared away with disclaimers. The only thing certainly accomplished by the cease and desist letter is the destruction of community goodwill that had been built up over years of sponsoring the event. The future of Unity Day is now uncertain, but, in any case, trademark rights do not give a mark owner the power to keep others from using the mark to discuss the mark owner's services, for instance, in cases of product comparison, news, criticism, or commentary. In other words, we should all feel free to discuss the Unity Day softball game of 1979 and all of the other fun memories Philadelphians surely associated with the festival.

BoingBoing brings a ray of sunshine to DMCA-chilled air

Wendy Seltzer, Chilling Effects, October 8, 2009

Abstract: For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it's welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren's lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying "PRL owns all right, title, and interest in the original images that appear in the Advertisements." Other hosts pull content "expeditiously" when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don't counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing's archives, in a pattern the press has nicknamed the "Streisand Effect."

We use the term "chilling effects" to describe indirect legal restraints, or self-censorship, because most cease-and-desist letters don't go through the courts. The lawyers (and non-lawyers) sending them rely on the in terrorem effects of threatened legal action, and often succeed in silencing speech for the cost of an e-postage stamp.

Actions like BoingBoing's use the court of public opinion to counter this squelching. They fight legalese with public outrage (in support of legal analysis), and at the same time, help other readers to understand they have similar rights. Further, they increase the "cost" of sending cease-and-desists, as they make potential claimants consider the publicity risks being made to look foolish, bullying, or worse.

For those curious about the underlying legalities here, the Copyright Act makes clear that fair use, including for the purposes of commentary, criticism, and news reporting, is not an infringement of copyright. See Chilling Effects' fair use FAQ. Yet the DMCA notice-and-takedown procedure encourages ISPs to respond to complaints with takedown, not investigation and legal balancing. Providers like BoingBoing's Priority Colo should also get credit for their willingness to back their users' responses.

As a result of the attention, Ralph Lauren apologized for the image: "After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately."

May the warming (and proper attention to the health of fashion models) continue!

Cyanogen and Google Work Past the Cease and Desist

Rebecca Schoff, Chilling Effects Clearinghouse, October 2, 2009

Abstract: News this week of a cease and desist letter sent to Cyanogen, the popular amateur developer of Android software, had members of the Android community hoping for a Jedi mind trick to make the legal threat go away: "Google, this is not the Droid you are looking for...."

But as the situation unfolds, participants hope that Google and Cyanogen will find a solution that protects Google's closed-source applications without chilling the innovation of the open-source Android community.

Google's Android is a software platform developed initially for use on mobile phones. In October 2008, Google made Android source code available to the public, royalty free and openly licensed, to encourage industry and amateur adaptation of the code via the Android Open Source Project. Since then, a flourishing community of developers has been providing "mods" and applications for the platform.

Among the innovators, a developer known by the handle Cyanogen released a modified version of the operating system, garnering a user-base of 30,000 who swear by the increased operating speed and other improvements Cyanogen's mod provides for their phones.

Last week, however, that community was alarmed to learn from Cyanogen's site that Google had sent him a cease-and-desist letter. Fearing the worst, some were ready to start protests. See the comments at Gizmodo and Android and Me.The movement even spawned its own Hitler video.

Google responded not with more lawyergrams, but an explanation: the company's aim was not to stop modifications of the base, open-source Android code, but rather to halt redistribution of its own closed-source applications, which Cyanogen had shipped along with his mod. Some view the redistribution of the closed-source apps (Google Maps, Android Market, gTalk, Gmail, and Youtube) as a "technicality", since they would ship only to those who have already bought "Google Experience" phones, which come with the apps already installed. Rooting the phone and installing a new mod erases the apps, so Cyanogen was saving these users the step of re-installing the software—and without the apps, the operating system doesn't have much functionality. On Google's side, however, distribution of proprietary software is a protected exclusive right of copyright owners, and Cyanogen's latest mod did include an upgrade of Android Market that Google had not yet released through its ordinary distribution channels. The loss of control over distribution of its applications could impair Google's (or any other company's) ability to make deals and build relationships based on the licensing of those products.

The latest news is that Google has reached out to the open-source community to make available previously unreleased tools (makefiles and configuration files), which will make it easier to develop mods that work "out of the box" without Google's closed-source applications. (For more, see Technology News.) In addition, Cyanogen is working on stripping Google's proprietary apps out of the CyanogenMod and on an application that will streamline the backup and restore process for owners of Google Experience phones who wish to root and then reinstall the proprietary apps. And who's assisting with these projects? Among others, Google staff. (See Cyanogen's blog.)

In the midst of the march forward there has been a lot of lingering criticism of the decision to send the C&D "nastygram" in the first place. Why not call Cyanogen first and work out a solution without the "lawyerisms"? True, sending a C&D into an open-source community is like using a table saw to cut your hair—you should probably try some other tools first. The backlash against "lawyerisms," though, might be obscuring another solution to these kinds of problems, and that's clear language up front about what parts of a code-base are freely licensed, and what is not. Experienced drafters of licensing agreements, which come in a myriad of collaboration-facilitating forms, might be just the guys to help write that language, so that everyone understands how to work together from the outset. Knowing where that line is between proprietary and open source can be complicated and clear agreements can help. In other words, IP lawyers might not be completely evil: search your feelings, you know it to be true.

DMCA Double Take: Suit Claims No Safe Harbor for Scribd

Rebecca Schoff, Chilling Effects Clearinghouse, September 29, 2009

Abstract: We know what the safe harbor provisions in the Digital Millennium Copyright Act mean ... don’t we?

A number of cases in California have confirmed what a straight-forward reading of the law would suggest: that the DMCA safe harbor provisions apply to hosting sites when those sites meet the requirements set out in section 512 of the law. (Perhaps most recently, a federal judge ruled in California that the safe harbor provisions applied to video-sharing site Veoh, see Veoh Survives Universal Music Group Copyright Infringement Suit.) Plaintiffs in a case just filed in Texas against document sharing site Scribd, however, would like to challenge that understanding.

As you read on, bear in mind that a complaint is just one party's allegations -- not proof of facts or accepted legal theories. Plaintiffs can ask for anything, even one hundred billion dollars, but that doesn't mean they'll get it.

BusinessWeek has described Scribd as “a kind of YouTube for publishing.” The lawyers of Texas law firm Camara & Sibley have a different way of describing the document sharing site and, indeed, the entire industry of hosting sites. In the complaint filed on behalf of author Elaine Scott, lawyer Kiwi Camara alleges that “under the aegis of self-promoting mis-interpretations of federal statutes, the West coast technology industry has produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to respond to such complaints. Apparently, they believe any business may misappropriate and then publish intellectual property as long as it ceases to use a stolen work when an author complains.”

Camara is painting the current understanding of the DMCA’s safe harbor provisions with a very broad brush, and commentators have objected. (Some contend that the complaint paints the industry more in the style of Jackson Pollock—with little effort to represent reality. See Michael Masnick’s comments at Techdirt.)

The "federal statutes" to which Camara refers are presumably sections 512(c) and 512(d) of the DMCA. For more information on them, see DMCA Safe Harbor and DMCA Notices.

These statutes do not make it legal to infringe. The safe harbor provisions do, however, shield Internet or online service providers from liability for damages from the infringement as long as they comply with a series of requirements, which include, among other things, quick removal (“takedown”) of the infringing file in response to a complaint from the copyright owner. The copyright owner can still sue the users who uploaded the material onto a sharing site, for instance. As Camara knows from his unsuccessful defense of music file sharer Jammie Thomas in a suit by the RIAA, courts will enforce copyright law against end-users. (For more on Camara & Sibley’s history with copyright cases, see Ars Technica.)

The safe harbor provisions make it possible for hosting sites and Internet service providers to develop technology for legal forms of file sharing and provide service to non-infringing users without the fear of constant litigation. On the other hand, the legislation does permit copyright holders to clear the harbor by informing ISPs and OSPs of infringement on their networks or sites: A provider who is properly notified of a specific infringement will not be eligible for safe harbor if it leaves the file up. Read this way, the law strikes a delicate balance.

If the safe harbor provisions of the DMCA were not intended to shield online hosts from liability under the stated conditions, it isn’t clear what they were intended to do. The complaint in the Scott case does not elaborate.

Curiouser and Curiouser

Ever since passage of the DMCA, we expect one of the key issues of any copyright infringement suit against a hosting site to be whether the site has met the stated conditions in order to qualify for the safe harbor. Usually the steps taken by a hosting site to prevent or remediate copyright infringement are evidence in its defense--not so in the Scott complaint.

Scribd’s general terms of use disallow copyright infringement. The site also posts clear notifications of its DMCA copyright infringement takedown policy and DMCA counter-notification policy. The site implements a three-strikes-you’re-out policy for users who are identified as "repeat infringers" (whose accounts are then terminated without notice). Finally, the site posts a FAQ list regarding the DMCA and Copyright Infringement that advises its users of the intellectual property rights of authors and other copyright holders.

These measures respond to requirements of sections 512(c) and 512(i) of the DMCA--and so should help the site qualify for the safe harbor, but the complaint in the Scott suit quotes from the FAQ, seemingly to argue that the FAQ’s correct acknowledgement of the rights of copyright holders is evidence that Scribd is a knowing infringer: "In documents published on their website, Scribd acknowledges that distribution of copyrighted content without the copyright’s owner [sic] permission is illegal. For example, the FAQ on copyright and DMCA states: '[d]istributing copyrighted content without the copyright owner’s permission is copyright infringement even if you give the document away for free.'" Under this logic, anyone who knows the law is a "knowing" infringer and the proper education of users incurs liability for a hosting site--surely a perverse result!

The DMCA does not require online service providers to patrol their systems in an effort to prevent copyright violations. The law explicitly states that safe harbor protection is not to be conditioned on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity" (17 U.S.C. Sec. 512(m)).

A number of sites do, however, take measures to prevent infringement. For a recent example, revisit the Veoh case: Veoh Survives Universal Music Group Copyright Infringement Suit. Veoh employed “hash” filtering and Audible Magic to scrub infringing copies from its network. Scribd has developed a Copyright Management System, a filter of its own that "fingerprints" works that have attracted a takedown notice so that the system will recognize copyrighted works and prevent users from reposting them. Scribd also allows any copyright holder to submit works to the Copyright Management System voluntarily, before there is an infringing post. In order to do so, copyright owners must sign an agreement not to sue Scribd if the filter fails and, in essence, to acknowledge Scribd’s compliance with the DMCA safe harbor provisions.

Seems like that would help, right? Preventing copyright violations in response to takedown notices? Not in the Scott complaint. The complaint against Scribd actually cites use of the Copyright Management System as a separate violation, alleging that the "fingerprinting" of the work, which creates a pattern for the filter to use to block posting of the work, creates a "copy" that violates a copyright owner’s exclusive right to duplicate her work. Whether this is true as a matter of law depends on the particular facts of how the technology functions (is a "fingerprint" a copy?) and on the application of fair use analysis to the facts. (For more on the fair use defense, see Copyright and Fair Use. Essay comparison service Turnitin.com made successful fair use defense of its fingerprinting.)

The complaint hints that the root of the problem with the Copyright Management System is that the filter itself might one day have separate value—perhaps the filtering system could be sold as a stand-alone copyright protection system for other sites--shouldn’t copyright holders get a piece of that pie? Camara hints darkly: "The value of the copyright protection system may someday exceed (or already has) the value of the document storage and retrieval system, especially if it were illegal to operate a Scribd-type business unless the business also implemented a copyright filter." But would copyright to a novel, for instance, confer rights to the profit in having created the filtering technology that protects the novel from illegal posting to the Internet?

What seems patently evident for now is that the Scott complaint tries to spring a Catch 22 trap for hosting sites, as its arguments seek to hold the site liable both for missing infringements on its system and for attempting to catch them.

Finally, the complaint Camara filed on Scott’s behalf promotes itself as a teaching moment for the IP legal community. The complaint quotes a lesson Ms. Scott offers to students when invited to speak about her work in classrooms. We think Camara’s use of the quotation is worth addressing here. It follows:
“As an author and lecturer, Ms. Scott regularly addresses the issues of plagiarism and the rights of authors. In her own words: ‘. . . . I begin by talking to students about the sacredness of words--theirs and mine--explaining that the words in my books are copyrighted to me, and therefore belong to me--just as the words they write belong to them. I add that their words are so important and valuable that the United States government considers them copyrighted too, even if their copyright isn’t registered. Therefore, I say to my wide-eyed audience, stealing a classmate’s words by copying them without permission is not only cheating, it is a form of copyright violation and technically against U.S. law. I usually close this portion of the presentation by stating that stealing someone else’s words is a little like stealing that person’s lunch money. It is simply wrong.”

Ms. Scott’s efforts to raise students’ awareness of copyright law are to be commended, but there are several unfortunate choices of words here that make this statement unsuitable for use in a complaint before a court of law and even, we regret to say it, misleading about the nature and extent of copyright. First, copyright does not confer ownership in words. Words most emphatically “belong” to us all. (The chilling effect of conferring ownership in words would be arctic.) Rather, copyright gives the creators of certain kinds of “fixed works” a series of exclusive rights in those works. It is the work and not the word that belongs, in a limited sense, to its creator. (See Copyright.) Putting it that way just doesn’t have the same ring as saying that words belong to you, but don’t knock it--the exclusive rights of a creator have real power.

Second, the ownership conferred by copyright and the ownership one has in one’s lunch money are a little alike in the sense that horses are a little like chickens. They are both animals, but they are not the same animal. There are limits on copyright ownership, notably the limited duration and the fair use defense, that just don’t apply to my lunch money. And there are good reasons for that. When we talk about copyright, it’s worth trying to be as precise as possible about both the extent and the limitations of the rights conferred by law. When we approach a court, such precision is indispensable. Maybe the ultimate lesson to be learned from the Scott case is that the IP legal community has a role to play in educating the public and in fostering precision in the approach to intellectual property rights on the part of both potential plaintiffs and defendants.

For further reading, the complaint in Scott v. Scribd has been posted on the Scribd site here. And the ads selected by the system to frame the document? They sell legal advice.

Veoh Survives Universal Music Group Copyright Infringement Suit

Rebecca Schoff, Chilling Effects Clearinghouse, September 17, 2009

Abstract: U.S. District Court Judge A. Howard Matz has granted summary judgment in favor of Veoh, an online video hosting site, ruling that Veoh’s procedures to protect against copyright infringement are adequate to qualify Veoh for safe harbor protection under the Digital Millennium Copyright Act.

Veoh, which hosts user-generated videos in a manner similar to Youtube, was sued by Universal Music Group for alleged copyright infringement in video clips posted on the site. As Ars Technica reports, UMG argued that “Veoh’s transcoding of uploaded videos disqualified it from any sort of protection under the DMCA.” In a categorical rejection of that approach, the Court’s ruling applies the safe harbor provision of the DMCA to prevent Veoh from being held liable for potential infringement in those clips. In the opinion, Judge Matz noted that the measures employed by Veoh to guard against copyright infringement on its site "fulfilled the requirements of section 512(c)(1)(A)."

Liz Gannes over at NewTeeVee summarizes the elements of Veoh’s successful policy, including a warning against copyright infringement in the terms of use, disabling access within two days of receipt of a takedown notice, the use of hash filtering to keep allegedly infringing videos from being re-posted, and the termination of accounts for repeat copyright violations.

Commentators at both the above links suggest that the reasoning in Judge Matz’s opinion has implications for Viacom’s suit against Youtube.

Interestingly, Judge Matz is no stranger to landmark copyright cases, also having been the author of the district court opinion in _Perfect 10 v. Google_. In that case, Judge Matz preliminarily enjoined Google from displaying thumbnail images from unauthorized sites that allegedly infringed on Perfect 10’s copyright to photographs for adult entertainment, but the 9th Circuit reversed that portion of the opinion on appeal. (Both opinions are available online here, along with more information from the Electronic Frontier Foundation.

For more information on the DMCA Safe Harbor provisions, see DMCA Safe Harbor.

Apple Reverses Course on Public Chats, Withdraws BluWiki Objection

Research Staff, Chilling Effects Clearinghouse, September 11, 2009

Abstract: The Electronic Frontier Foundation reports that Apple has stepped back from threats of legal action against BluWiki, a host of public wiki pages that discussed the use of software other than iTunes to download media onto Apple products--but the withdrawal of threats was based on the pages having been rendered obsolete by new code.

In November of 2008, Apple objected to a thread on BluWiki, a public wiki hosting site, which discussed the use of software other than iTunes to download media onto the iPod and iPhone. Apple's concern, as reported in the Harvard Journal of Law and Technology's Flash Digest was that the content was "designed to circumvent Apple's Fairplay digital rights management system" and thus violated the Digital Millennium Copyright Act. (For more info see Anticircumvention (DMCA) and Reverse Engineering.)

In response to threats of legal action, BluWiki removed the pages, but at the same time, the Electronic Frontier Foundation and San Francisco law firm Keker & Van Nest filed a lawsuit on behalf of BluWiki's operator, OdioWorks, seeking a declaratory judgment in order to "clarify the rights of the parties." According to a July 2009 press release by EFF, Apple recently sent a letter "withdrawing its cease-and-desist demands and stating that 'Apple no longer has, nor will it have in the future, any objection to the publication of the iTunes DB Pages.'" However, the letter, posted by EFF here, also says that the discussions on BluWiki were rendered obsolete by changes in Apple's code in the seven months that have passed since they were taken down.

Will technology stop this discussion where legal threats did not?