A couple of weeks ago, a group of commercial copyright owners and operators of several user-generated content (UGC) services issued a set of Copyright Principles for UGC Services. To their credit, these principles include “the accommodation of fair use” among the goals. The main thrust of the principles, however, is to call on UGC sites to take more active responsibility for preventing users from posting infringing content — and in particular, to implement filtering technologies to identify unauthorized copyrighted content automatically. The principles go into significant detail about how UGC sites should combat infringement, while the nods to fair use consist of little more than bare references. For example, the shortest of the fifteen principles is number six, which reads in its entirety: “When sending notices and making claims of infringement, Copyright Owners should accommodate fair use.”

Stating a general commitment to accommodating fair use is certainly welcome. But it doesn’t provide any guidance on the tricky practical questions concerning what such a commitment actually means and how to make it real and effective. Accommodating fair use is not a straightforward task, particularly where companies are relying on automatic filtering tools. Filtering tools may be able to identify unauthorized copyrighted content, but they can’t parse the nuances of fair use.

Today, EFF and several other organizations released a set of principles aimed squarely at providing more detailed guidance for the fair use side of the UGC equation. These Fair Use Principles for User Generated Video Content call for granting a “wide berth” for uses that are creative and noncommercial in nature (e.g., using a clip as part of an original video, as opposed to just posting a verbatim copy of the clip); targeting any automatic, technology-based blocking to cases that appear to involve verbatim copying, while providing for human review of cases where the content appears more mixed; and providing effective ways for content creators to dispute the conclusions of automatic filters or content owner takedown notices. Clearly these are important ideas. In particular, human review of close cases and meaningful mechanisms for individuals to challenge erroneous takedowns or blocking seem like essential elements of any serious scheme to leave room for fair use.
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Earlier today CDT joined eight other privacy and consumer groups in urging the Federal Trade Commission (FTC) to take proactive steps to protect consumer privacy in light of the growth of “behavioral targeting” — the practice of collecting and compiling a record of individual consumers’ activities, interests, preferences, and/or communications over time for the purposes of serving advertising based on the information collected. Marketers and advertising networks generally accomplish this sort of tracking by placing a persistent, unique identifier (such as a cookie ID) on a consumer’s computer that can help identify that consumer as he or she visits sites across the Web and over time.

As part of the groups’ proposal, we asked the FTC to implement a “Do Not Track List” intended to protect consumers from having their online activities unknowingly tracked, stored, and used by marketers and advertising networks. The idea for the Do Not Track List is reminiscent of the extremely popular Do Not Call list maintained by the FTC. That program allows consumers to submit their phone numbers to the FTC to avoid being called by telemarketers. The FTC maintains these phone numbers in a list, and telemarketers can pay the FTC to get a copy of the list so they know which consumers not to call.
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The last few weeks have seen two scuffles relevant to the Internet neutrality debate. Verizon Wireless initially refused to facilitate certain automatic text messages from the abortion rights group NARAL on the ground that they were “controversial,” even though the messages would only go to opt-in NARAL supporters. More recently, the Associated Press and others have reported that Comcast impairs some of its broadband subscribers’ P2P communications by sending “reset” packets that effectively terminate individual communications (though Comcast claims the communications can be restarted later).

In many ways, these two incidents are very different. The Verizon Wireless incident concerned text messages on a mobile phone network, not the Internet. Moreover, Verizon Wireless reversed course, blaming the initial decision to reject NARAL’s messages as a mistaken application of a “dusty internal policy.” In Comcast’s case, the issue concerns broadband Internet service and the company shows no inclination to back down from what it defends as important network management activity. Another difference is that the carrier’s decision in the Verizon Wireless case turned on the specific content of the communications (i.e., the controversial topic of abortion), whereas Comcast’s policies appear to target protocols viewed as bandwidth hogs.

But both cases highlight the need for more transparency. This is something on which all sides of the neutrality debate ought to be able to agree. It’s one thing to argue about whether carriers should be subject to some type of government rules limiting discrimination. But it’s quite another to argue that it’s just fine for carriers to discriminate in secret, with no public disclosure of their policies. After all, opponents of regulation generally say that competition in the marketplace, together with the backstop of antitrust law, will provide a sufficient check against harmful types of discrimination. But the marketplace can’t provide any discipline, and the public can’t express its marketplace preferences, if there is no public access to information about what different carriers actually do.
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Fox News has apparently sent Sen. John McCain a cease and desist letter for his campaign’s use of 19 seconds of video of the Senator taken from a debate hosted by Fox News in a campaign ad (available here). Fox’s claim that the political ad violates its copyright strains credulity. If the use of a 19 second clip from a 90 minute televised debate incorporated into a political ad is not fair use, then what is?

The question to Fox News is, are there any circumstances where the network would acknowledge fair use of debate footage? Is there something about this particular advertisement that they contend is distinguishable from other uses of short clips for political debate and commentary? Or are they making an argument that candidates who participated in televised political debate (as compared to ordinary citizens) are not entitled to claim fair use of short clips for political purposes? If so, why?

Because frankly we can’t see it. Yes, the clip did make its way into a political ad. And yes, he did cherry pick one of the few “newsworthy” (or at least entertaining) moments in the debate. But if Senator McCain can’t use 19 seconds from that debate in a political ad, it’s difficult to imagine that anyone can claim fair use of any one of the 5400 seconds from that debate.

The only good thing that may come from this incident is that members of Congress may finally begin to grasp the importance of fair use to a democratic society. Nothing focuses the mind of a politician like a cease and desist letter aimed at a political advertisement.

Adware vendor DirectRevenue has officially shut down. According to a notice posted on its Web site, the company has “ceased operations” and is maintaining the site only to provide uninstall instructions to legacy users of its adware products. This is good news from a company that engaged in some of the most egregious behaviors in the spyware space — sending “torpedoes” to remove anti-spyware software and showing a pop-up ad every minute, for example.

This will not be the last that we hear from DirectRevenue, however. Although the company settled with the Federal Trade Commission for $1.5 million earlier this year, the New York Attorney General’s lawsuit against DirectRevenue and its owners is still pending. As CDT noted when the FTC announced its settlement, $1.5 million is chump change for a company whose owners earned $20 million by deceiving consumers. Thankfully, the state attorneys general have the authority to pursue these kinds of deceptive operations, and the folks in New York have been vigilant about enforcing against the Internet’s nastiest spyware schemes. DirectRevenue may be finished online, but certainly not in court.

A story published today by the Associated Press explains that:

The New England Patriots have won a bid to get the names of all the fans who bought or sold — or tried to buy or sell — tickets to home games through online ticket reseller StubHub Inc., a move one technology group sees as an invasion of privacy.

That “technology group” is CDT.

Here is a little more detail:

CDT is concerned about the breadth of the of the Patriot’s discovery request. If the request were only for the names and contact information of those who had clearly broken the law, we would have little issue. However, the order would include information of individuals that bid on the game for under ticket price, but did not win and may never even have gone to a game. That is simply too much information. The Patriots, having just gone through the recent spygate scandal, should be more sensitive to the privacy of law abiding Internet users.

A recent submission to Congress by Verizon reveals the extremely high volume of government surveillance requests and orders that telecoms face in the post 9-11 world. The Verizon letter, responding to questions from the House Energy and Commerce Committee, opens a window on a world that most Americans are unaware of: as a matter of course, telecommunications providers turn over subscriber information to a broad array of federal, state and local entities.

AT&T and Qwest also made submissions to the Committee, but those submissions were much less revealing. AT&T mostly reiterated its case for immunity and Qwest declined to provide any specific response to the Committee’s inquiry. Whatever the shortcomings of Verizon’s response, its willingness to provide real numbers and to answer many of the questions the Committee posed is to be applauded.

The numbers are remarkable. In 2005,Verizon received 90,000 “lawful requests and demands” for customer information associated with the company’s wire line services, with 36,000 of those coming from federal officials. These numbers do not include any information or reference to Verizon’s activities conducted in conjunction with classified intelligence gathering (the subject of well publicized litigation). While the debate in Washington has centered on unlawful warrantless surveillance, these numbers suggest that lawful surveillance practices – such as the government’s increasing demands for records under very low standards — merits closer scrutiny as well.

The House Energy and Commerce Committee is looking into allegations that the telecommunications firms had unlawfully provided sensitive customer information to the National Security Agency. Many of the Committee’s questions remain unanswered, in part because Verizon has been sued by the government to prevent the company from disclosing that information in the pending litigation.

The Verizon submission confirms what CDT has suspected for a long time: there is a growing demand by the government for Internet and phone records in the law enforcement context. At the same time, FISA court orders have been steadily increasing. Governments at all levels now possess an enormous treasure trove of phone and Internet data about Americans that needs to be protected. Congress has a responsibility to examine this surveillance and what is happening to the data, consider whether the standards for government access to communications data are strong enough, and report its findings publicly.

Google and YouTube have been saying for quite some time that the video-sharing service was working on technology to scan video uploads for material that could infringe copyright. YouTube has now announced the launch of its “Video Identification” tool, albeit in Beta form.

This is a significant development. Commercial copyright owners have long complained that YouTube is awash in infringing videos, and that the DMCA’s “notice-and-takedown” process amounts to a cumbersome and ongoing game of whack-a-mole. They have argued that YouTube should filter out infringing material on the front end — before it gets posted — rather than waiting for content owners to find each infringing posting and send a formal request for it to be taken down. The law doesn’t currently require that, but YouTube’s new tool appears to be a major step in that direction.

YouTube’s announcement leaves a lot of open questions — and the details on the official Google blog and YouTube’s Video Identification page are pretty sketchy. Our understanding is that the system will use some kind of digital fingerprinting technology to check video uploads against a database of copyrighted material submitted by copyright holders. If a match is found, what happens next will depend on whether the copyright holder has asked to block all uploads, allow them for promotional purposes, or “monetize” them (presumably by sharing in revenues from advertising).

From CDT’s viewpoint, the questions that immediately come to mind relate to accuracy and fair use. YouTube is a marvelous platform for free expression, and we wouldn’t want to see legitimate user-created videos misidentified and blocked. And even if the system never wrongly identifies a video clip, what will happen when users incorporate short clips of commercial video content into their own videos, for purposes of criticism or commentary? That’s classic fair use activity. But if the YouTube technology identifies even short clips of copyrighted material within a longer video, such fair use activity could be flagged and perhaps blocked. How the system handles fair use activity, and how users are able to navigate the fair use issues in practice, will be extremely important.

This is a tricky challenge; the case-by-case nature of fair use makes it impossible to translate neatly into an automated process. YouTube should explain to its user community how it will deal with this difficult problem. At a minimum, it seems clear that the video identification system should include some opportunity for users to challenge a positive match on either accuracy or fair use grounds. We understand that the system may in fact include a process for that, but more details are needed. And for that opportunity to be meaningful, users will need some links to balanced information about fair use, so that they can make a reasonably educated judgment about whether their activity is in fact permissible. It also could be useful for the system to include some way to monitor any potential impact on fair use — perhaps a mechanism for users to report cases where they were blocked or dissuaded from posting videos that they believe to be fair use. (more…)

Earlier today I had the opportunity to participate in the 3rd Joint London Action Plan-Contact Network of Spam Authorities Workshop, which also featured joint sessions with the Messaging Anti-Abuse Working Group. Every LAP-CNSA conference includes a panel on organizational updates, and I was pleased to provide an update on the activities of the Anti-Spyware Coalition. The ASC has been hard at work this year, finalizing its Best Practices and Conflict Resolution documents and organizing a successful public workshop of its own in June.

Bigger news from the event came yesterday when Federal Trade Commission Chairman Deborah Platt Majoras announced that a district court judge has put a halt to an international spamming operation that deceptively promoted drugs for weight loss and aging reversal. This is the first case in which the FTC has made use of the U.S. SAFE WEB Act, a law passed late last year to make cross-border enforcement easier for the agency. Allowing cooperation with other nations is an absolute necessity in an age where cross-border networks make multi-national scams a routine occurrence.

In testimony before Congress earlier this year, CDT expressed the hope that the FTC would make increasing use of its new SAFE WEB Act powers. Because the Commission is not required to report to Congress about its usage of the new law for three years, monitoring how the Act is affecting cross-border enforcement is difficult unless the FTC volunteers this information. In this case, the Commission chose to do just that, much to CDT’s delight.

We are pleased to see that the FTC is both making use of its new cross-border powers and disclosing the fact that it has done so. We hope this trend will continue.

Our friends at StopBadware.org and the Berkman Center for Internet & Society at Harvard have just announced a new contest concerning Internet cookies and their implications for privacy. Contestants are invited to submit short videos that creatively explain what cookies are, how they can be used or misused, and what options users have for controlling their cookies. The creators of the top five videos (as determined by an independent reviewer) will earn a trip to the upcoming FTC Town Hall workshop on behavioral advertising, where panelists will select one of the contestants as the grand prize winner.

User education is one of the most challenging tasks in protecting consumer privacy online. StopBadware and Berkman have helped to further this cause by crafting a fun and unique way for users to clear the air about cookies. We look forward to seeing what the Internet community comes up with.