Deeplinks Blogs related to DMCA
Massive Takedown of Anti-Scientology Videos on YouTube
News Update by Eva GalperinOver a period of twelve hours, between this Thursday night and Friday morning, American Rights Counsel LLC sent out over 4000 DMCA takedown notices to YouTube, all making copyright infringement claims against videos with content critical of the Church of Scientology. Clips included footage of Australian and German news reports about Scientology, A Message to Anonymous/Scientology , and footage from a Clearwater City Commission meeting. Many accounts were suspended by YouTube in response to multiple allegations of copyright infringement.
YouTube users responded with DMCA counter-notices. At this time, many of the suspended channels have been reinstated and many of the videos are back up. Whether or not American Rights Counsel, LLC represents the notoriously litigious Church of Scientology is unclear, but this would not be the first time that the Church of Scientology has used the DMCA to silence Scientology critics. The Church of Scientology DMCA complaints shut down the YouTube channel of critic Mark Bunker in June, 2008. Bunker’s account, XenuTV, was also among the channels shut down in this latest flurry of takedown notices.
Required Reading for "User-Generated Content" Sites: Io Group v. Veoh
Legal Analysis by Fred von LohmannIn an important ruling handed down yesterday, a federal district court threw out a copyright infringement suit brought by adult video producer Io Group against Veoh, concluding that the video hosting site qualifies for the DMCA safe harbor. The ruling should be required reading for the executives of every "Web 2.0" business that relies on "user-generated content."
Veoh, like YouTube, is a streaming video site that hosts videos uploaded by users. Io Group sued Veoh in 2006 after finding clips from 10 of its copyrighted adult films on the Veoh site. So far, this is a familiar story -- user-generated content site gets sued by copyright owner for naughty uploading habits of users (see, e.g., lawsuits against MySpace, iMeem, YouTube, Redlasso, Hi5, Multiply, Stage6, MP3tunes, Scribd, Usenet.com, Bolt, and Grouper). But this is the first case to get to a final ruling, and it's a total victory for Veoh.
The key to Veoh's victory was its scrupulous attention to the DMCA safe harbors. Veoh responded to compliant DMCA takedown notices on a same-day basis, it notified users of its policies against copyright infringement, it registered a Copyright Agent with the Copyright Office, it terminated users who were repeat infringers and blocked new registrations from the same email addresses, it used hashes to stop the same infringing videos from being uploaded by other users. These efforts actually go beyond the requirements of the DMCA safe harbors, and made it clear that Veoh was serious about responding to copyright infringement notices.
This ruling provides valuable guidance to companies that host video, audio, and text files on behalf of users (see, e.g., Muxtape). Too many "Web 2.0" start-ups are careless about the requirements of the DMCA safe harbors. They don't register a Copyright Agent, or keep good records of their responses to takedown notices, or have a demonstrable policy of terminating "repeat infringers." Sure, doing this "compliance" work costs time and money. But, as the Veoh decision demonstrates, the payoff can be enormous, since copyright is almost certainly the biggest liability risk these sites face.
The ruling also debunks some of the favorite anti-safe harbor arguments bandied about by entertainment industry lawyers (and gives a boost to YouTube in its fight with Viacom). The court specifically rejects the argument that "transcoding" content to facilitate access disqualifies a service provider from the safe harbor (Veoh automatically transcodes uploaded videos into Flash). The ruling also joins other courts in concluding that, even if Veoh made money from advertising around the videos, it still qualifies for the safe harbor because it lacks the "right and ability to control" (see Section 512(c)(1)(B) of the Copyright Act) the infringing activities of its users.
While there are still plenty of unexplored legal questions surrounding the DMCA safe harbors, this ruling provides important practical guidance for companies that host user-uploaded content.
DRM for Streaming Music Dies a Quiet Death
Technical Analysis by Fred von LohmannYet another nail has been driven into DRM's coffin, this time for streaming audio (PCPro has a nice overview of the state of DRM for digital music).
Two of the leading on-demand streaming music sites, iMeem and LaLa, are not using DRM on their audio streams, instead sending the music as MP3s dusted with a dash of obfuscation. This is significant because both sites have been licensed by all the major record labels -- the very same record labels that were just last year pushing Congress to require DRM on all noninteractive webcasts. So it looks like the RIAA companies have changed their minds, dropping DRM requirements for the on-demand streaming music services.
This should put an end to legislation to mandate DRM on noninteractive webcasters. After all, why should these webcasters be in a worse position than the free, on-demand music services like LaLa and iMeem?
This also undermines the argument that DRM for music is necessary for subscription services. If the major labels have given up DRM for free, ad-supported (correction: iMeem is ad-supported, LaLa is free for a first listen of a track, 10 cents for repeat listening), on-demand streaming services like LaLa and iMeem, there's no plausible reason to insist on DRM for paid subscription services like Rhapsody and Napster 2.0. After all, there's no reason to think that those who prefer commercial-free subscriptions like Rhapsody are more likely to "pirate" streams than those who prefer ad-supported services like LaLa iMeem.
LaLa and iMeem each take slightly different approaches to streaming music. LaLa uses HTTP to download each requested song as an MP3 to your browser, but relies on aggressive "no-cache" headers and pre-expired date stamps to suggest that your browser not make a copy of the file on your hard drive. Using a packet sniffer to capture the entire HTTP session, however, easily reveals the complete MP3 embedded right after the HTTP headers.
iMeem also downloads and caches each requested song, but sends the MP3 as the audio track of a Flash Video file. This FLV file is typically saved (cached) on your hard drive as an obscurely named temporary file, which is overwritten when you request your next song (we mentioned iMeem's approach back in January, and it's essentially unchanged). Copy this temp file, however, and you can easily extract the audio track from the Flash video, saving it as a stand-alone MP3 file.
(The location of this TemporaryItems folder, and its equivalent on other operating systems, varies significantly depending on operating system and version. On some operating systems it's buried deep within the directory hierarchy, but it can be found automatically with standard tools.)
While the light obfuscation used by iMeem and LaLa might create a "speed bump" of inconvenience for users who want to keep the MP3 files, it doesn't rise to the level of a "technical protection measure" protected by the DMCA. In short, this is yet another example of why there is no legitimate business case for DRM on music -- it doesn't prevent piracy and it's not necessary to enable "new business models" like subscription or ad-supported music. (Of course, as the movie industry has demonstrated, DRM can still be valuable for impeding competition and putting the brakes on disruptive innovation. But it's hard to see how the law should protect those goals.)
In Memoriam: Ed Foster, 1949-2008
Deeplink by Fred von LohmannEd Foster, the journalist and consumer advocate behind InfoWorld's GripeLine column and GripeLog blog, died of a heart attack this weekend. He was 59.
It's no exaggeration to say that Ed was one of the preeminent consumer rights activists of the digital age. During his more than 20 years as a "reader advocate" at InfoWorld, he was far ahead of his time, recognizing that in a world increasingly dominated by software and online services, the digital consumer needed a champion when squaring off against the likes of Microsoft, Adobe or AutoDesk. Following in the traditions of the best consumer reporters before him, Ed exposed software vendors and online service providers that treated their customers shabbily.
But it was in his tireless work against "sneakwraps" -- those "end user license agreements" (EULAs) and "terms of service" (TOS) that require our "agreement" -- that Ed was without peer. You may not be reading all those "agreements" before you click thru, but Ed was. He recognized earlier than most that sneakwraps were going to be the digital consumer's worst nemesis, the mechanism that stripped consumers of the legal protections they enjoy when buying a book, a chair, or an automobile. Long before most consumer groups were thinking about sneakwraps, Ed was covering and participating in efforts to block UCITA, a package of state laws pushed by large software vendors that would have stripped consumers of valuable protections under contract law (UCITA was ultimately adopted by only two states, VA and MD, and has since been abandoned). Ed also contributed his insights on DRM, product activation, and reverse engineering to groups like AFFECT (Americans For Fair Electronic Tranactions) and EFF, making sure we knew what consumers were dealing with in the trenches.
Ed will be sorely missed, both professionally and personally, by all who benefited from his wisdom. Here are a few of my personal favorites from among his remarkable output of columns and posts:
Embroidering on a Copyright Shakedown Theme -- casting the spotlight on the "Embroidery Software Protection Coalition" (ESPC) after it sent settlement demand letters to grandmothers who bought embroidery software on eBay. Based on Ed's tip, EFF stepped in to protect the interests of innocent purchasers.
Sneakwrap Files: McAfee Automatic Renewals -- a consumer advocate's classic, wherein Ed confronts McAfee over the "automatic renewal" provision buried in the fine print of their EULA. McAfee backs down and coughs up a refund.
The Lexmark Car -- an April Fool's post explaining what the world would be like if a car manufacturer tried to get away with the kinds of shenanigans practiced by Lexmark in connection with their laser toner cartridges.
Into the DMCA Groove -- in 2003, an eBay seller gets into hot water after trying to auction a promo CD given away at The Gap. Ed cries foul, predicting 5 years in advance the exact outcome of EFF's UMG v. Augusto case, where a court found that "promo use only" labels can't trump the first sale doctrine.
Court Rejects Attempt to Expand the DMCA
Deeplink by Michael KwunYesterday, a district court dismissed several claims in the case Coupons, Inc. v. Stottlemire, in which we had, in March, filed an amicus brief. Coupons offers online coupons that consumers can access and print using software provided by Coupons. The software tries to limit the number of times a user can print each coupon. Coupons claims that John Stottlemire created a tool that modifies the Coupons software, allowing users to print more coupons.
The claims we were most interested in were Coupons's "anti-circumvention" claims under the Digital Millennium Copyright Act (DMCA). Coupons claimed that Stottlemire's tool circumvents technological measures that limit use of its coupons (a "rights-control" claim), but also tried to allege that the tool circumvents measures that limit access to those coupons (an "access-control" claim). The problem is that the tool doesn't have anything to do with access - anyone can access the coupons whether they use the original software or the modified software.
This isn't just an academic issue. While the DMCA prohibits the distribution of tools that circumvent rights or access controls, it prohibits actual circumvention (e.g., through use of such tools) only in the case of access controls. This is because controlling use of copyrighted material is already addressed by copyright law, and addressing it again in the DMCA would upset the careful balance between the rights of copyright owners and those of the public. As the court properly understood, maintaining a clear distinction between access-control claims and rights-control claims "leaves room for individual fair uses, adaptations for the blind, library research, and the other statutory exceptions to copyright." Because the court agreed that Coupons's DMCA claims "blur the carefully constructed distinction between 'access controls' and 'rights controls,'" the court dismissed the access-control claim. (The court is giving Coupons a chance to try to amend its access-control claim to see if it can save it, but it seems unlikely to us that Coupons can do that.)
At the hearing, EFF's positions were ably argued by Hari O'Connell and Domenic Ippolito, law student members of the Samuelson Law, Technology and Policy Clinic at the Berkeley School of Law.
Prince Issues One Takedown Too Many
Deeplink by Hugh D'AndradeIt's a familiar story: A fan uploads a video shot at a Prince concert to YouTube, and that video promptly disappears the moment Prince's lawyers issue a DMCA takedown notice. It may seem silly to many fans, but the DMCA instructs content hosting sites to respond to copyright complaints by instantly removing disputed content.
But in this case, it's not at all clear that Prince had the right to issue this notice. The song in question is a reportedly excellent cover of Radiohead's song Creep. CNN Money reports that "all videos of Prince's unique rendition of Radiohead's early hit were quickly taken down, leaving only a message that his label, NPG Records, had removed the clips, claiming a copyright violation."
What copyright violation would that be? As authors of the song, Radiohead, not Prince, own copyright in the work at issue. And they've apparently chosen not to enforce it here -- Radiohead's Thom Yorke has reportedly objected to the takedown in a recent interview: "Well, tell him to unblock it. It's our ... song."
Prince does have some rights over recordings of his performances under the anti-bootlegging statute, but those are not enforceable under the DMCA. If Prince can show that he was simultaneously recording the performance, he might be able to assert copyright in that recording -- but it's not clear that this is what Prince is claiming.
This may seem like simply another example of Prince's overzealous campaign to control all uses of any work attached to his name (even at the cost of preventing legitimate fair uses, or, as may be the case here, removing the copyrighted work of other artists). But the problem isn't Prince -- the problem is the DMCA's streamlined takedown provisions, which are all too easy to misuse. Sadly, this is not the last time legitimate speech will be silenced by a bogus copyright claim.
Latest Test for DMCA Safe Harbors: Warner Sues SeeqPod
Deeplink by Fred von LohmannWarner Music Group has sued SeeqPod (complaint, 500k PDF), a "Web 2.0" music search engine (combined with embedable playlists, etc, etc) that has been gaining in popularity in recent months.
This is the latest in a string of lawsuits against Web 2.0 companies. Together, the suits represent an attack by the entertainment industry on the DMCA safe harbors that protect hosting services and search engines. Other similar cases have been filed against YouTube, MP3Tunes.com, Veoh, PornoTube, and Divx/Stage 6.
The SeeqPod case is different, however, because it is among the first that directly tests how copyright law applies to search engines. Despite the success of search engines like Yahoo and Google, there has been remarkably little case law developed on the copyright front. Part of the reason is because Congress stepped in with the DMCA safe harbors in 1998, creating some degree of certainty where the background legal concepts (e.g., contributory infringement) did not. In addition, by endorsing a notice-and-takedown regime, the DMCA safe harbors created a solution for many copyright owners that is cheaper than litigation.
But now, as search engines become more specialized and capable, certain copyright owners have become increasingly dissatisfied with the notice-and-takedown bargain struck in the DMCA. That's what these lawsuits are really about -- the defendants are complying with the letter of the law, but copyright owners are now trying to change the rules in court.
Of course, the SeeqPod case may settle (as a similar case brought by Warner against iMeem did). But the copyright issues will not be going away anytime soon (in particular, keep your eye on the remand in the Perfect 10 v. Google case, where the DMCA safe harbor issues may take center stage).
UPDATE: LA Times reporter Jon Healey has an interesting post about the case over at his Bit Player blog, suggesting that SeeqPod is unfairly trying to evade royalty obligations that its competitors must pay. We spar more over this in the comments over there.
LimeWire on 1 in 3 Desktops World-Wide
Deeplink by Fred von LohmannDigital Music News and BigChampagne report that 36.4% of all PCs world-wide have LimeWire installed, based on system scans of 1.6 million machines.
This is worth noting for at least two reasons. First, it reminds everyone that when it comes to digital music, the main event is still P2P file-sharing, as it has been ever since Napster's debut in 1999. The entire apparatus of "legitimate" online digital music stores (like iTunes) remains just a drop in the bucket. And the entertainment industries still haven't taken any meaningful steps toward a collective licensing solution to monetize P2P, as we've been urging since 2004.
Second, this is yet another empirical nail in the DRM coffin. The Darknet remains robust and generally accessible to mainstream computer users. So long as consumers continue to have simple, easy ways to share digital content, once DRM has been stripped from a file, the now-liberated content flows freely. In other words, all it takes is one leak (and DRM always leaks). And in a world with easy sharing, fans don't need to bother with DRM-cracking tools, which means the DMCA's anti-circumvention provisions really aren't doing any good (but continue to do plenty of harm).
Year-End 2007: Darknet Assumptions Still True
Deeplink by Fred von LohmannPrinceton's Professor Ed Felten (full disclosure: he's an EFF board member) in a recent post on his blog reminds us that one of the core "Darknet premises" -- that DRM systems on mass media content will inevitably be broken -- continues to prove itself true. The victim this year, AACS:
We’ve been following, off and on, the steady meltdown of AACS, the encryption scheme used in HD-DVD and Blu-ray, the next-generation DVD systems. By this point, Hollywood has released four generations of AACS-encoded discs, each encrypted with different secret keys; and the popular circumvention tools can still decrypt them all. The industry is stuck on a treadmill: they change keys every ninety days, and attackers promptly reverse-engineer the new keys and carry on decrypting discs.
One thing that has changed is the nature of the attackers. In the early days, the most effective reverse engineers were individuals, communicating by email and pseudonymous form posts. Their efforts resulted in rough but workable circumvention tools. In recent months, though, circumvention has gone commercial, with Slysoft, an Antigua-based maker of DVD-reader software, taking the lead and offering more polished tools for reading and ripping AACS discs.
To many who follow DRM issues closely, this is hardly news; the regular breaking of DRM systems, followed by the steady leak of formerly-protected content into file-sharing channels, is now so common that it barely rates a mention in the tech press.
But copyright policy-makers still haven't gotten the message (hey, policy-maker: DRM does not slow piracy!!). Whether they get the message or not, this steadily mounting pile of empirical evidence continues to show that the anti-circumvention provisions of the DMCA (i.e., "thou shalt not circumvent DRM") are a failure if the goal was to impede digital infringement. At the same time, of course, the DMCA continues to be a valuable tool for rightsholders who want to use DRM to impede competition, innovation, and free speech.
