Deeplinks
Noteworthy news from around the internet.
Google is Done Paying Silicon Valley's Legal Bills
Commentary by Fred von Lohmann[I wrote the following op-ed, which appeared in the Nov. 14 issue of The Recorder. Because that publication's website is not publicly available, I'm posting a copy here, with their permission.]
For most of the decade, Silicon Valley technology startups have assumed that Google would pay their legal bills. Not literally, mind you, but rather by taking on the big, high-profile cases about fair use, interoperability, and other digital intellectual property issues that would set precedents that all disruptive innovators could rely on.
Well, Google just put the Valley on notice that the free ride is over, which means more legal burdens for smaller technology companies that previously depended on Google clearing a path for them.
Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. At the heart of the dispute is the question of whether scanning copyrighted books in order to index them violates copyright law, as the publishers argued, or is permissible as a fair use, as Google argued. If approved by the court, the $125 million settlement would buy Google — and only Google — permission not just to scan books for indexing purposes, but also to expand Book Search to provide more access to the scanned books.
The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. Others include the billion-dollar suit brought by Viacom over copyrighted video clips appearing on YouTube, as well as cases brought by trademark owners attacking Google's right to sell trademarks as keyword triggers for those "sponsored links" that appear when you use Google's search engine. Google has also fought copyright owners to defend its search engine, news aggregation, image search and Web caching activities.
Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google's legal investments have paid dividends for the entire Internet innovation economy.
Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem — but not anyone else's. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.
Google will doubtless be considering the same endgame for the Viacom lawsuit against YouTube. If Google can strike a settlement with a large slice of the aggrieved copyright owners, then it solves the copyright problem for itself, while leaving it as a barrier to entry for YouTube's competitors.
But when innovators like Google cut individual deals, it weakens the Silicon Valley innovation ecology for everyone, because it leaves the smaller companies to carry on the fight against well-endowed opponents. Those kinds of cases threaten to yield bad legal precedents that tilt the rules against disruptive innovation generally.
For better or worse, it looks like tomorrow's cutting-edge Internet law precedents are going to be left to smaller companies to set. That means smaller startups (and their venture capital backers) need to start planning strategically to pick up the slack left by Google's gradual retreat from the field of battle. To put it bluntly, they need to set aside real money for litigation and find ways to cooperatively invest in the legal precedents that all of them collectively need.
Reproduced with permission from the Nov. 14, 2008 edition of The Recorder, copyright 2008 ALM Properties. Further reproduction without permission prohibited without permission of ALM Properties.
Apply for the Summer Google Policy Fellowship and Work with EFF
Announcement by Richard EsguerraStudents interested in technology law and policy may be interested in applying to work with EFF next summer through the Google Policy Fellowship, a program that gives students the chance to spend the summer working alongside host organizations on topics of Internet and technology policy.
Much like how the Summer of Code project aims to develop and promote open source projects, Google is hoping that policy fellowships will advance debate on key policy issues affecting the public. Google is kindly offering fellows a $7000 stipend (for a minimum of 10 weeks in June to August 2009) for working with host organizations like EFF on various topics.
Google's application deadline is December 12, 2008. Take a look at a list of EFF's focus areas and find application details here. Students who are accepted will be notified by Friday, February 13th.
What Obama Can and Should Do to Stop Telecom Immunity
Deeplink by Kevin BankstonYesterday, the New York Times ran the story "Early Test for Obama on Domestic Spying Views", describing the national security-related issues facing the incoming Obama Administration. Chief among them is the issue of immunity for telecoms that illegally assisted in the National Security Agency's warrantless wiretapping program:
In perhaps the most critical test, civil liberties groups that are suing major phone companies that took part in the N.S.A. program are waiting to find out whether a federal judge will throw out the lawsuits based on immunity granted by Congress in June.
The Justice Department has already moved to take advantage of the immunity provision by certifying in court that the phone companies were complying with a presidential order. But the Electronic Frontier Foundation, a civil liberties group that has taken the lead in the lawsuit, maintains that Congress acted beyond its powers.
A hearing is set for Dec. 2. Cindy Cohn, legal director for the foundation, said that as the case moved forward the new administration could act to withdraw the immunity certification made by the Bush Justice Department.
“Nothing will be over by Jan. 20,” when Mr. Obama is inaugurated, Ms. Cohn said.
As President, it will be up to Obama whether or not the Administration wants to continue seeking dismissal of the lawsuits against AT&T and other telecoms based on the immunity provisions of the FISA Amendments Act (FAA). Specifically,
President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd's amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government's motion to dismiss the lawsuits based on the immunity statute. Or,
President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Consistent with his support of Senator Bingaman's proposed FAA amendment to delay implementation of the immunity provisions, Obama could instruct his new Attorney General to ask the court for a temporary stay of the immunity proceedings. That would give the Administration time to review the classified details of the NSA program as well as the FAA-mandated reports about the program that are expected by this July from the Inspectors General of the Department of Justice, the NSA, and other agencies involved in the program. After having reviewed all the facts, the new administration can then re-evaluate whether it wants to continue to press for immunity in court, or drop its motion to dismiss and let the cases against the telecoms continue. Or,
President Obama can choose not to appeal if the immunity statute is found unconstitutional. If, after the hearing on December 2nd, Chief Judge Vaughn Walker of the federal Northern District of California agrees with EFF that the immunity statute is unconstitutional and denies the government's motion to dismiss, Obama could instruct his new Attorney General to not appeal that decision to the Ninth Circuit Court of Appeals.
All of these are things Obama could do — on his own and without any help from Congress — to stop the implementation of the immunity scheme that he repeatedly opposed during his presidential campaign.
These recommendations aren't EFF's alone: as part of the transition roadmap published yesterday by a broad coalition of groups including EFF, seventeen different civil liberties organizations signed onto national security surveillance recommendations that included the proposition that President Obama should "[d]irect the Attorney General to withdraw the government’s motion to dismiss pending privacy litigation brought against telecommunications carriers for assisting with unlawful warrantless surveillance, or seek a stay of those proceedings until such time as the Attorney General, based on review of the Inspectors’ General reports required by the FISA Amendments Act, determines that a grant of immunity is appropriate."
EFF Joins with Coalition to Provide Policy Roadmap to Next President and Congress
Deeplink by Kevin BankstonA coalition of more than 25 organizations, including EFF, yesterday released "Liberty and Security: Recommendations for the Next Administration and Congress", a comprehensive catalogue of policy recommendations on a range of critical civil liberties issues.
This collaboratively-created transition roadmap, coordinated by our friends at the Constitution Project, contains 20 chapters providing policy recommendations on a wide variety of issues, from Guantanamo Bay to warrantless wiretapping. EFF has signed on as an ally in support of the recommendations in eleven of those chapters, concerning issues within EFF's mission to protect free speech and privacy on the electronic frontier.
Most importantly, EFF has joined as a supporter of all the recommendations made in the area of "Secrecy, Surveillance, and Privacy", covering goals such as reigning in NSA spying, updating the Electronic Communications Privacy Act, and reforming the State Secrets privilege (consistent with our Privacy Agenda for the New Administration), as well as combating excessive classification and urging greater transparency in government (as previously described in our Transparency Agenda for the New Administration).
After the jump, you can find links to PDFs of all of the individual chapters of the transition catalogue where EFF has signed on as an ally; the entire document is available here [pdf]. We hope that you — and the next President and Congress — find them enlightening.
RIAA Wins, Campuses Lose as Tennessee Governor Signs Campus Network Filtering Law
News Update by Richard EsguerraLast week, the RIAA celebrated the signing of a ridiculous new law in Tennessee that says:
Each public and private institution of higher education in the state that has student residential computer networks shall:[...]
[R]easonably attempt to prevent the infringement of copyrighted works over the institution's computer and network resources, if such institution receives fifty (50) or more legally valid notices of infringement as prescribed by the Digital Millennium Copyright Act of 1998 within the preceding year.
While the entertainment industry failed to get "hard" requirements for universities in the Higher Education Act passed by Congress earlier this year, the RIAA succeeded in Tennessee (and is pushing in other states) with this provision that gives Big Content the ability to hold universities hostage through the use of infringement notices. Moreover, the new rules will cost Tennessee a pretty penny -- in the cost review attached to the Tennessee bill, the state's Fiscal Review Committee estimates that the new obligations will initially cost the state a whopping $9.5 million for software, hardware, and personnel, with recurring annual costs of more than $1.5 million for personnel and maintenance. Not a penny of this will go to artists, nor to any of the record labels RIAA represents.
Unfortunately, the entertainment industry lobby seems to be succeeding, bit-by-bit, in persuading legislators to coerce universities into buying "infringement suppression" technologies -- expensive technologies that won't stop file sharing on campus networks. Even if the technologies did work (magical thinking in light of encryption), does anyone think they would somehow force students back into record stores or the iTunes Store? After all, today students on campus can swap multiple gigabytes hand-to-hand for pennies (see, e.g., blank DVD-R disks, or the price of portable hard drives, as well as the ease of copying from iPod to iPod).
It makes no sense to force universities to spend millions on technologies that will hobble innovation on campus while failing to stop file-sharing. Why not use those millions to compensate creators and copyright owners, and thereby make file-sharing legal, instead? Now, more than ever, the universities need to come forward with a collective licensing proposal that will protect their campus communities and their own bottom lines.
Meanwhile, universities under the gun should make sure to shun the hype of network filtering when possible and seek solutions more amenable to teaching and academic freedom -- our whitepaper on copyright infringement technologies on campus networks is a good place to start. For more detail, EDUCAUSE has in-depth resources on P2P, file sharing, and the Higher Education Act.
Judge Allows Bogus Jones Day Trademark Claims to Go Forward
Legal Analysis by Corynne McSherryIn a decision that could have significant negative consequences for online speech and commerce, Judge John Darrah of the Northern District of Illinois has refused to dismiss some of the most preposterous trademark claims we've ever seen (and that's saying something).
The defendant in the case, BlockShopper.com, provides information about recent real estate transactions, including publicly available information about buyers and sellers. After BlockShopper published articles referring to two Jones Day attorneys who had recently bought homes (with links to their bios on the Jones Day firm website), the law firm sued BlockShopper, alleging that using the term "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site. With amicus support from EFF, Public Citizen, Public Knowledge and the Citizen Media Law Project, BlockShopper.com argued that the uses were fully protected by fair use and the First Amendment, and that no Internet user would imagine that Jones Day was affiliated with or sponsored BlockShopper based solely on a link or a reference to the firm in a headline.
This case was a perfect candidate for early dismissal. It is based on the erroneous belief that trademark owners can prevent others from using their marks, accurately, in the ordinary course of communication, to refer to the owners themselves. Trademark law has never given a mark owner veto power over all uses of its mark, and for good reason. Online and off, trademarks—words, symbols, colors, etc—are also essential components of everyday language, used by companies, consumers and citizens to share information. If Jones Day were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But that is not the law, and Jones Day should know it.
We're disappointed that a respected law firm like Jones Day started this outrageous litigation, but we're even more disappointed that the court didn't take this opportunity to nip it in the bud. The court said that it could not end the case at this stage because it is required to take Jones Day's allegations as true. That's not precisely so; on an early motion like BlockShopper's, a court is required to accept facts as true, but not (implausible) legal conclusions. That's because deciding the facts is up to a jury. But interpreting the law is exactly what the judge is supposed to do, and it's disheartening to see the court let this case go any further.
At any rate, by allowing the case to go forward, the court has made BlockShopper's defense much more expensive, even if BlockShopper is confident (as it should be) that it will win in the end. Thus, the court has sent a signal to news sites and blogs everywhere: no matter what the Lanham Act says, if you link to a trademark owner's site, or use a mark in a headline or post, you'd better have a pretty decent legal budget.
FCC Unanimously Approves Use of Television "White Spaces"
News Update by Richard EsguerraAdvocates for the opening of the "white spaces" were rewarded with a resounding victory earlier this month when the FCC unanimously voted in favor of allowing unlicensed use of the unused spectrum between TV channels. (For a more complete explanation of white spaces, check out our earlier blog post.) While FCC Chairman Kevin Martin had telegraphed his support for white spaces at the conclusion of technical trials, the landslide vote opens doors for innovation and is a victory for the public over the entrenched media incumbents.
However, it's important to consider the remaining variables in play. The end goal is better wireless broadband access in America -- more Internet, in more places, at lower cost. While innovators have been given a significant green light by the FCC through this vote, there are other milestones to be met and obstacles to overcome: a possible legal challenge from the broadcasters, full implementation of spectrum avoidance technology, and FCC certification of consumer-ready devices. These will all have an effect on the amount of time it takes for white space devices to reach consumers.
Regardless, the FCC's unanimous approval is a major win for the public. It's easy to imagine the FCC playing it safe and succumbing to the incumbent broadcasters instead, closing the gates on improved wireless technology at the outset. But the current Commission's commitment to innovation, its investment in researching the technology, and the efforts of public interest groups and regular folks speaking out made the difference and is paving the way for a better future in wireless broadband.
A Transparency Agenda for the New Administration
Legislative Analysis by Tim JonesThis is the final post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on government transparency. Previously, we've written about surveillance and intellectual property.
The past eight years have seen an increase in government secrecy and a decrease in government accountability. These factors have led to record levels of distrust in our government. Here are three steps the new leadership should take to begin to restore that trust:
Leverage new technology to provide authoritative government data. It's notoriously difficult or impossible to find and manage data on legislation (both passed and proposed), on election day polling locations, on the boundaries of Congressional districts, and on government spending. All of these should be made available online for the federal and state levels, in open formats, with no intellectual property restrictions on their use, distribution or ownership.
Review the entire information-classification infrastructure and reform it to create meaningful oversight. This system has been repeatedly abused by the White House. It leaves far too much discretion in administration hands, allowing them to "capture" legislators who want to be "in the loop," forbidding them from conducting any serious investigation into the administration's illegal or questionable practices.
Restore strength to the Freedom of Information Act (FOIA). Encourage government agencies to produce documents, instead of withholding documents under overbroad pretenses. This will allow the government to assist in uncovering misconduct. A good start would be to re-introduce and pass the Faster FOIA Act.
An Innovation Agenda for the New Administration
Legislative Analysis by Tim JonesThis is the second post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on innovation, fair use and intellectual property. On Friday, we posted about privacy and surveillance, and tomorrow we'll discuss government transparency.
Today's intellectual property (IP) laws frequently fail to strike the proper balance between the rights of creators, copyright holders and the public. Powerful companies interested in maximizing their investments in intellectual property have run roughshod over the people's fair use rights. This has been especially problematic given the explosion of user generated content sites like YouTube, which celebrate creativity and innovation and actively encourage a remix culture. It is our hope that our government leaders will work to bring balance to the law. Here are some suggestions to get things started:
Repair the Digital Millennium Copyright Act (DMCA). Eliminate the ability of copyright holders to get statutory damages for noncommercial violations of copyright laws. Require proof of actual damages prior to any award based on copyright liability. Raise the requirements for content owners to receive preliminary injunctions against technologies in copyright cases. Congress should pass the FAIR USE Act and the Orphan Works Act.
Reform the U.S. Patent and Trademark Office (PTO), emphasizing its role to promote, rather than impede, innovation. Patents, by constitutional design, are supposed to "promote the Progress of Science and useful Arts." All too often today, patents are used to hold innovation hostage. Patent office procedures should be reviewed to ensure that patent examiners are being given the tools and incentives they need to challenge overbroad patent applications. Simultaneously, avenues for post-grant administrative review procedures should be broadened, ensuring that public interest groups can continue to raise post-grant challenges without restrictive time limitations on their participation.
Don't let the content industry use our government resources to pressure universities and others to participate in their intimidating peer-to-peer dragnet operations.
Show caution before regulating the use of technologies that limit consumer choice or consumer rights. In the United States and abroad, our government should advocate for policies that promote the ability of consumers to use technology they purchase however they choose.
The WIPO Broadcasting Treaty: Back from the Dead?
Commentary by Gwen HinzeLast year, we reported that WIPO Member States had decided to postpone holding an intergovernmental diplomatic conference to adopt the controversial Broadcasting Treaty. For us, and the many others who had expressed concern about the proposed treaty, this was welcome news. But it was short-lived. In 2008, the Broadcasting Treaty is being pushed by its supporters with a vengeance. Surprisingly, the US seems to have reversed its most recent position, and expressed support for continuing treaty negotiations so long as it includes webcasting.
Despite the fact that there has been no agreement on fundamental elements of the treaty after over 10 years of negotiations, in March there was a concerted move to resurrect negotiations, led by the European Community and Japan, with support from a set of other countries. At the September 2008 WIPO General Assembly meeting, a number of WIPO national delegates expressed support for finalizing treaty negotiations. Then in October, the long-standing WIPO Copyright Committee Chair, Mr. Jukka Liedes of Finland, produced an "informal paper" describing the process of negotiations so far, and proffered several options which would result in continuing discussions and finalization of the treaty.
Yesterday, the Broadcasting Treaty was the main topic of discussion at this week's meeting of the WIPO Standing Committee on Copyright in Geneva. In spite of the enthusiastic efforts of treaty supporters, consensus still seems quite a long way off. Several country delegations (France on behalf of the European Community, Japan, El Salvador and China) expressed support for concluding a treaty. Others repeated that the treaty must be limited to protection of signals and not grant exclusive rights, which the current draft does (Pakistan on behalf of the Asia Group, the Africa Group, South Africa, India. the US).
As in previous meetings, the most contentious issue was whether the treaty should give broadcasters and cablecasters exclusive rights over Internet retransmissions of broadcast and cablecast content. The Africa Group, China, Nigeria, India, South Africa and Egypt all opposed inclusion of webcasting or extension to Internet transmissions. Japan, the US, Australia and the Ukraine supported the extension of the treaty to the Internet.
The US delegation said that if discussions are to continue, the treaty should include webcasting. This is a reversal of the United States' most recent position, and harks back to a May 2006 meeting, where it was agreed to take out webcasting and divide the treaty into two tracks -- first, a treaty on broadcasting and cablecasting, and then second, an instrument dealing with broadcasting on the Internet -- webcasting or "netcasting", as the US had wanted, and "simulcasting", as supported by the EU.
Yesterday, the United States' delegation stated it had agreed only temporarily to limit the scope of the treaty to traditional broadcasting entities, provided that simulcasting was also excluded, and with the failure to move to a diplomatic conference in 2007, any agreement on the two-track approach had now expired. In other words, the US apparently wants to go back to 2006 and bring webcasting or "netcasting" back in to the treaty. Finally, in case there was any doubt, the North American Broadcasters' Association repeated that their strong preference is for a treaty with exclusive rights for broadcasters and extending to Internet retransmissions.
EFF and a diverse group of public interest NGOs, libraries and major U.S. tech industry players continue to oppose the current treaty draft because it's not limited to signal protection, but would instead create a new layer of exclusive intellectual property rights for broadcasters and cablecasters that would harm access to knowledge and consumers' existing rights under national copyright law, endanger citizen broadcasting on the Internet, raise competition policy concerns and stifle technological innovation. Here and here is the joint statement presented by that group to WIPO this week. And here's EFF's briefing paper on our concerns with the current treaty draft.
Discussions at WIPO wound up today, after heated discussions on the issue of copyright exceptions and limitations. Member states agreed to keep the Broadcasting Treaty on the Copyright Committee's agenda and asked WIPO to convene an information session at the next meeting in May to discuss outstanding issues. The Committee did not make a decision on the various options presented by the Chair in his informal paper. Perhaps most importantly, Member States affirmed the mandate previously provided by the WIPO General Assembly -- that the treaty must be framed on a signal-based approach, and that the convening of a diplomatic conference could be considered only after agreement has been achieved on the treaty's objectives, specific scope and objectives. We'll be back shortly with the full text of the final adopted conclusions of the meeting and our analysis of this week's key issue, copyright exceptions and limitations for the visually impaired, libraries and archives, education and innovative services.
(With many thanks to Sherwin Siy of Public Knowledge and Judit Rius Sanjuan of KEI for their notes of delegates' interventions.)
