Nutrition experts are battling sugar industry trade groups over over public information about the health hazards of sugar, high-fructose corn syrup (HFCS) and other caloric sweeteners. Nutrition experts say that the sweeteners added to soft drinks and countless other foods and beverages increase the risk of cardiovascular disease, and promote weight gain by adding empty calories to the average diet. Making matters worse for corn refiners, Pepsico is offering "Pepsi Throwback" and "Mountain Dew Throwback," two versions of the popular soda drinks made with "natural sugar" instead of HFCS, and sporting a "rad vintage look." But HFCS manufacturers say their products don't cause health problems or weight gain. To make their point, the Corn Refiners Association (CRA) is running a series of TV ads aimed at boosting the image of HFCS and convincing people that they are misled by marketing tactics that imply that products labeled "high-fructose corn syrup-free" are healthier than products with HFCS. CRA also launched sweetsurprise.com, a Web site featuring photos of cute, slender, healthy-looking kids and families happily eating, drinking and riding bikes. The site touts the benefits of HFCS and has articles countering claims that HFCS has any relationship to obesity and other health problems.

The U.S. media told the public for weeks that a big, offensive battle was taking place in Marja, in Afghanistan, a "city of 80,000 people" in Helmand province which was also the logistical hub of the Taliban. The description gave the impression that the U.S. presence in Marja was a major strategic objective, and that the city was more important than other district centers in the province. But the picture the military painted of Marja and duly reported by a biddable news media was one of the most dramatic pieces of misinformation so far in the entire war, aimed at hyping the offensive as a big turning point in the conflict. In truth, Marja is not a city or even a town, but either a few groups of farmers' homes or a large farming area encompassing much of the southern Helmand River Valley. The sparsley populated area is completely rural, with no incorporated city or town. The fiction that Marja was a city of 80,000 got started at a briefing given by officials on February 2 at the U.S. Marine base called Camp Leatherneck. Officials referred to Marja as a populous city. The Associated Press put out an article that same day saying they expected up to 1,000 insurgents were "holed up" in the "southern Afghan town of 80,000 people," a statement that evoked a picture of house-to-house, urban street fighting. ABC News perpetuated the myth the next day, in a story that referred to the "city of Marja" and claiming that the city and its surrounding area were "more heavily populated, urban and dense than other places the Marines so far have been able to clear and hold." The rest of the news media fell in line, giving fake descriptions of a densely populated, urban Marja, often using the terms "city" and "town" interchangeably, without fact-checking the descriptions. On February 22, the Washington Post reported that the decision to launch the big offensive against Marja was intended largely to impress U.S. public opinion with the military's effectiveness in Afghanistan by showing that it could achieve a "large and loud victory." The false idea that Marja was a significantly large city center was an essential part of that message.

The U.S. Chamber of Commerce is growing its bank account and jumping into grassroots lobbying game now since the Supreme Court opened the floodgates for corporations to spend unlimited money on elections. The Chamber spent more than $144 million on lobbying and grassroots organizing in 2009, far beyond the spending of individual labor unions or the Democratic or Republican national committees. The Chamber is expected to exceed that spending level in 2010. One of the factors causing the rapid increase in money pouring into the Chamber is the Supreme Court's ruling in the Citizens United case which handed corporations the free-speech right to spend as much as they want to elect or defeat candidates. The Court's ruling struck down a century of established case law upholding limits on corporate political spending. It also made business executives more comfortable using corporate funds for political purposes. Passing funds through trade groups instead of spending directly on elections has another benefit for corporations: Trade groups can legally avoid disclosing their donors' identities. The Chamber has developed a system where corporations contribute money to the group, which in turn produces issue ads targeting individual candidates without revealing the names of the businesses who are funding the ads. This means that for all the increased influence corporations now have on elections, there is no equivalent transparency. The Chamber's system keeps secret which businesses are influencing a given election, and to what extent.

As President Obama moves ahead with health care reform, interest groups on both sides of the issue are again ramping up their lobbying efforts. Robert Zirkelbach of America's Health Insurance Plans, the insurance industry's top lobbying group, said his industry is making "a big effort" to counteract attacks from Obama and other Democrats, who have pointed to hefty premium increases to show why health care reform is needed. "We're working really hard to set the record straight on what's driving health care prices in this country, which is underlying medical costs and not health plans," he said, repeating a statement that contradicts a recent study by Health Care for America Now that found insurers are actually raising premiums twice as fast as their underlying medical costs are rising. Organizing for America, the Democratic National Committee's grassroots arm, launched a campaign encouraging Obama supporters to call in their support for reform to talk-radio stations around the country. Other groups ramping up include the 60 Plus Association, which bought $500,000 worth of television ads targeting 18 centrist House Democrats who voted in favor of reform, the corporate-funded Americans for Prosperity, which purchased $250,000 worth of ads last week, the National Right to Life Committee, MoveOn.org and the pharmaceutical lobby. The only group not joining the lobbying frenzy is AARP, whose chief executive, A. Barry Rand, has promised will "make no new statements, send no new letters, run no new ads about health reform." He asked other groups to do the same. "Let's turn down the volume on the outside noise to that our leaders might actually listen," he said.

Watching the devolution of the bank reform bill in the U.S. Senate has been painful. Banking Chairman Chris Dodd’s original proposal unveiled last year had numerous strengths, most significantly the removal of bank supervisory authority from the Federal Reserve. Dodd had decided that the Fed had done such a lousy job ignoring the housing bubble and failing to crack down on predatory lending in the mortgage market that it shouldn’t be given a second chance.

But a second chance for this unpopular and failed institution is currently in the works. In an effort to please Republicans and achieve a bipartisan bill, Dodd is not only going to let the Fed keep its bank supervision and rule making authority, he wants to give it authority over the proposed Consumer Financial Projection Agency (CFPA).

( click title for more )

Depiction of Obama in RNC presentationA confidential Republican National Committee (RNC)
PowerPoint presentation about fundraising strategies titled "Tools for Success" discusses raising money for the 2010 election cycle by capitalizing on donors' fear of President Obama and promising to "save the country from trending toward socialism." One page of the presentation titled "The Evil Empire" depicts Obama as the Joker from Batman, House Speaker Nancy Pelosi as Cruella DeVille, and Senate Majority Leader Harry Reid as Scooby Doo. Another page explains that major donors who engage in "calculated giving" are "ego-driven," react to "peer to peer pressure" and are motivated by "access," while smaller donors -- who the program calls "visceral donors" -- are "reactionary," motivated by "fear" and "extreme negative feelings toward existing Administration." The presentation was prepared by Party finance staff and delivered by RNC Finance Director Rob Bickhart at a $2,500-a-head party retreat in Boca Grande, Florida on February 18. The full 72-page document was provided to Politico.com by a Democrat who found a hard copy that was been left behind in the hotel where the RNC hosted the event.

Republicans and conservative news media outlets like Fox News keep repeating the error made by newly-elected Massachusetts Senator Scott Brown, when he mistakenly called the Senate process of reconciliation "the nuclear option." The term the "nuclear option" was coined in 2005 by then-Majority Leader Trent Lott, when Democrats used the filibuster to block the appointment of appeals court judges nominated by George W. Bush. This prompted Republicans to threaten to change the Senate rules so they could cut off debate on judicial nominees using a simple 51-vote majority instead of the required 60-vote majority needed to end a filibuster. The momentousness of this change -- effectively blocking the stalling technique known as the filibuster -- moved some Democrats to dub the Republicans' threat the "nuclear option." Thus, the term "nuclear option" refers to a major change in the rules of the Senate, not passing a bill using reconciliation. Passing a bill -- even a large and important bill -- through reconciliation is fairly standard procedure, and has been used many times before to approve major health care reform initiatives.

It's getting clearer that conservatives would rather sling around a scary, loaded old term and hope to elicit some emotional effect than come up with a new term -- or use the right words -- to communicate what they mean.

( click title for more )

The pro-health care reform group Health Care for America Now has released a study (pdf) that contradicts insurance companies' claims that their recent, exorbitant rate hikes were driven by increases in the cost of medical care. The study shows that over the last eight years premiums have almost doubled, while medical inflation only increased by 40 percent. HCAN found that insurance companies are raising their rates more than 20 percent faster than the amount they are paying out to doctors, and twice as fast as their underlying costs of medical care are rising. In short, insurance companies are hiking premium prices much more quickly than their costs are increasing. HCAN also found that insurance companies are spending the extra money on perks. For example, Anthem spent $27 million on 103 executive retreats to locations like Hawaii in 2007 and 2008 alone. From 2000 to 2008, insurance companies spent $716.4 billion of their premium dollars on administrative costs, salaries for their CEOs, and investor profit -- practically enough to fund the entire health reform bill.

The entire family of devices built on the iPhone OS (iPhone, iPod Touch, iPad) have been designed to run only software that is approved by Apple—a major shift from the norms of the personal computer market. Software developers who want Apple's approval must first agree to the iPhone Developer Program License Agreement.

So today we're posting the "iPhone Developer Program License Agreement"—the contract that every developer who writes software for the iTunes App Store must "sign." Though more than 100,000 app developers have clicked "I agree," public copies of the agreement are scarce, perhaps thanks to the prohibition on making any "public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple's express prior written approval." But when we saw the NASA App for iPhone, we used the Freedom of Information Act (FOIA) to ask NASA for a copy, so that the general public could see what rules controlled the technology they could use with their phones. NASA responded with the Rev. 3-17-09 version of the agreement.

UPDATED: we are now also posting the most recent version of the agreement, dated January 2010.

This "license agreement" is particularly relevant right now, given the imminent launch of the iPad and anytime-now issuance of the U.S. Copyright Office's ruling regarding jailbreaking of the iPhone.

So what's in the Agreement? Here are a few troubling highlights:

Ban on Public Statements: As mentioned above, Section 10.4 prohibits developers, including government agencies such as NASA, from making any "public statements" about the terms of the Agreement. This is particularly strange, since the Agreement itself is not "Apple Confidential Information" as defined in Section 10.1. So the terms are not confidential, but developers are contractually forbidden from speaking "publicly" about them.

App Store Only: Section 7.2 makes it clear that any applications developed using Apple's SDK may only be publicly distributed through the App Store, and that Apple can reject an app for any reason, even if it meets all the formal requirements disclosed by Apple. So if you use the SDK and your app is rejected by Apple, you're prohibited from distributing it through competing app stores like Cydia or Rock Your Phone.

Ban on Reverse Engineering: Section 2.6 prohibits any reverse engineering (including the kinds of reverse engineering for interoperability that courts have recognized as a fair use under copyright law), as well as anything that would "enable others" to reverse engineer, the SDK or iPhone OS.

No Tinkering with Any Apple Products: Section 3.2(e) is the "ban on jailbreaking" provision that received some attention when it was introduced last year. Surprisingly, however, it appears to prohibit developers from tinkering with any Apple software or technology, not just the iPhone, or "enabling others to do so." For example, this could mean that iPhone app developers are forbidden from making iPods interoperate with open source software, for example.

You will not, through use of the Apple Software, services or otherwise create any Application or other program that would disable, hack, or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the iPhone operating system software, iPod Touch operating system software, this Apple Software, any services or other Apple software or technology, or enable others to do so

Kill Your App Any Time: Section 8 makes it clear that Apple can "revoke the digital certificate of any of Your Applications at any time." Steve Jobs has confirmed that Apple can remotely disable apps, even after they have been installed by users. This contract provision would appear to allow that.

We Never Owe You More than Fifty Bucks: Section 14 states that, no matter what, Apple will never be liable to any developer for more than $50 in damages. That's pretty remarkable, considering that Apple holds a developer's reputational and commercial value in its hands—it's not as though the developer can reach its existing customers anywhere else. So if Apple botches an update, accidentally kills your app, or leaks your entire customer list to a competitor, the Agreement tries to cap you at the cost of a nice dinner for one in Cupertino.

Overall, the Agreement is a very one-sided contract, favoring Apple at every turn. That's not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies. How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it's only because Apple still "owns" the customer, long after each iPhone (and soon, iPad) is sold, that it is able to push these contractual terms on the entire universe of software developers for the platform.

In short, no competition among app stores means no competition for the license terms that apply to iPhone developers.

If Apple's mobile devices are the future of computing, you can expect that future to be one with more limits on innovation and competition (or "generativity," in the words of Prof. Jonathan Zittrain) than the PC era that came before. It's frustrating to see Apple, the original pioneer in generative computing, putting shackles on the market it (for now) leads. If Apple wants to be a real leader, it should be fostering innovation and competition, rather than acting as a jealous and arbitrary feudal lord. Developers should demand better terms and customers who love their iPhones should back them.

San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief today urging a federal court judge to block two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication, bringing the threat of criminal sanctions for private, lawful speech.

At issue are provisions of federal law that require anyone who produces a visual depiction of sexually explicit expression to maintain extensive records -- including copies of drivers' licenses, the dates and times images were taken, and all URLs where images were posted -- and often force public disclosure of a creator's home address. Even more troubling, the regulations allow law enforcement warrantless entry into homes or offices in order to inspect the records that are supposed to be kept. While these statutes regulate the commercial pornography industry, they also likely apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging.

"The plain language of the statute subjects ordinary Americans, who are using emerging communications technologies at an ever-increasing rate, to onerous record-keeping and inspection requirements for lawful speech. They could face up to five years in prison if they don't follow the statutory requirements to the letter," said EFF Senior Staff Attorney Matt Zimmerman. "Speakers who engage in private, expressive activity protected by the First Amendment should not be at risk of criminal sanctions for violating an overbroad statute that they likely know nothing about."

A coalition of artists, producers, distributors, and educators filed suit against the provisions last year, arguing that the law censored their artistic and educational work. In its amicus brief in support of the coalition filed today, EFF asked the judge to throw out the record-keeping regulations as an unconstitutional chill on adult free expression in the digital age.

"Digital cameras, camcorders, and the Internet make it easy to create and share lawful adult material in a wide variety of ways. Thousands of ordinary Americans are doing just that, only to find themselves subject to these record-keeping and inspection requirements," said EFF Civil Liberties Director Jennifer Granick. "This just doesn't square with the Constitution."

For the full amicus brief:
http://www.eff.org/files/filenode/fsc_v_holder/EFF%20Amicus%20Brief.pdf

For more on Free Speech Coalition v. Holder:
http://www.eff.org/cases/free-speech-coalition-v-holder

Contacts:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

The Obama Administration has been slowly ramping up its attention to intellectual property issues. Over the past few months, we've seen an IP "summit" at the White House. We've seen the successful nomination of a new cabinet-level "IP Czar" position. We've seen the announcement of a new DOJ task force for IP issues. What does it all portend?

Unfortunately, many signs suggest that the administration is paying far more attention to the interests of the entertainment industry than to the public good. At the same time, there are a few positive efforts and indications, so we're holding out hope that things could improve.

The first bad omen came last December, when Vice President Biden invited the RIAA, MPAA and other representatives of the mainstream entertainment industry to a closed-door "Piracy Summit" at the White House. Although Biden's office sold the summit as "bringing together all the stakeholders" in the piracy debate, it failed to invite a single representative of the public interest or the technology industry.

One outcome previewed at the summit was the formation of a new Department Of Justice "Intellectual Property Task Force", which was formally announced in February. Unfortunately, the Department of Justice already has a history of coming down disproportionately hard on victims of the copyright conflict. And while the task force's announcement stressed that IP crime "threatens not only our public safety but also our economic wellbeing," it didn't even pay lip-service to the harms to privacy, free speech, and innovation in the industry's long war on piracy.

Later in February, the government's new IP Enforcement Coordinator (IPEC), Victoria Espinel, announced that "the Federal Government is currently undertaking a landmark effort to develop an intellectual property enforcement strategy" and asked for public input into what this strategy should look like. A major component of the request seeks information about "the costs to the
U.S. economy resulting from intellectual property violations," which in the past has mainly been expressed through skewed, erroneous accounts of the supposed effects of piracy from entertainment industry lobbyists. However, the IPEC is also demanding an unprecedented level of rigor from these studies:

Submissions directed to the economic costs of violations of intellectual property rights must clearly identify the methodology used in calculating the estimated costs and any critical assumptions relied upon, identify the source of the data on which the cost estimates are based, and provide a copy of or a citation to each such source. [Emphasis mine.]

Since some of these poorly executed studies have appeared to successfully persuade members of Congress to change copyright law only in ways that favor the entertainment industry, it's refreshing to see the IPEC pushing for greater validity. To that end, we look forward to seeing the Obama Administration publicly debunk the empty rhetoric that circulates around questions of unauthorized file sharing and its economic effects.

There are other bright points. Late last year, the Administration supported looser international copyright protections for reading materials for the blind. Limitations and exceptions to copyright are a critical "safety valve" in copyright that helps preserve free expression, access to knowledge, and other human rights, and we hope to see them defended by the Administration in other contexts as well.

While IP enforcement appears to have center stage, there are other double-standards and unintended consequences in copyright and trademark law, all of which could benefit from some attention from the White House. The orphan works conundrum remains unsolved. Copyright term and licensing issues stymie creators and archivists. The anti-circumvention provisions of the DMCA still obstruct innovators.

But will the Obama Administration and Congress choose to face these tough, important issues? At the next IP summit, will advocates for questions like these have a seat at the table? Or will the public interest side of intellectual property law and policy continue to languish unaddressed? Time will tell.

Last month, we celebrated the 20th anniversary of the founding of EFF at the DNA Lounge in San Francisco, joined by Adam Savage, the founders of EFF and dozens of other Internet luminaries. For non-local EFF supporters, we've put the gorgeous photos that John Adams and Johnny Grace captured at the event up on our Flickr page.

Don't forget to check out EFF's 20th Anniversary commemorative t-shirt and poster designed by EFF senior designer Hugh D'Andrade! These are still available in our shop and through our donation page. You can also download hi-res versions and wallpaper from our flickr page here.

(photo by John Adams)

(photo by Johnny Grace)

(photo by John Adams)

(Photo by John Adams)

(Photo by Johnny Grace)

Thanks to everyone who joined us or donated — and here's to another 20 years!

We often criticize DMCA takedown abuse here at EFF, but last week's Cryptome snafu highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material.

To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome refused explaining that the document was posted in order to help the public better understand Microsoft's practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the entire Cryptome website. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome.

This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome's beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn't willing to take that small risk, a whole lot of speech was temporarily disappeared.

We’ve recently seen the same scenario with music bloggers, who may have their entire sites taken down as a result of complaints about a few links to music they’re reviewing.

And sometimes it's not even enough to find a courageous hosting provider. Last year a takedown notice targeting a single site parodying the U.S. Chamber of Commerce resulted in a takedown of the websites of over 300 activist organizations hosted by MayFirst/PeopleLink. The Chamber of Commerce went "upstream," targeting one of MayFirst's upstream service providers, Hurricane Electric. When MayFirst pushed back, Hurricane shut off service, thus pulling the plug on unrelated websites, email and other online tools.

In all of these cases, copyright owners reach out to a "weak link," the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of "innocent bystander" customers.

This unfortunate outcome is particularly ironic because Congress gave service providers protections in the DMCA. Service providers who care about free speech have better options:

Customers who also care about free speech should vote with their wallets and look for providers who will commit to following these suggestions. The safe harbors were supposed to help protect free speech, and they often do—but only if copyright owners, service providers, and internet users follow their common sense as well their business sense.

San Francisco - The Electronic Frontier Foundation (EFF) submitted a petition signed by more than 7000 people to the Federal Communications Commission (FCC) today demanding that the agency close a loophole for copyright enforcement in its proposed regulations for network neutrality.

The petition is part of EFF's reply comments in the FCC's net neutrality rulemaking. The FCC's proposed rules generally prohibit ISPs from discriminating or blocking lawful content, but include a loophole for 'reasonable network management' by ISPs. The proposed rules then define 'reasonable network management" to include measures taken by ISPs to block unlawful content or transmissions. This exception would effectively permit ISPs to violate net neutrality rules and block lawful activities in the name of copyright enforcement.

"We can't afford to let lawful speech become collateral damage in Hollywood's war on copyright infringement," said EFF Senior Staff Attorney Fred von Lohmann. "Net neutrality regulations should not excuse ISPs that interfere with lawful content just because they claim they were acting as copyright cops."

EFF's original comments to the FCC, submitted in January, also question whether the FCC has the legal authority or political independence necessary to properly regulate the Internet. Additionally, EFF has called on the FCC to protect the interests of individuals who offer open WiFi Internet access to their neighbors or local communities.

"Before the ink is dry on net neutrality regulations, we already see corporate lobbyists and 'public decency' advocates pushing for loopholes," said EFF Civil Liberties Director Jennifer Granick. "A loophole like this could swallow network neutrality, with ISPs claiming copyright enforcement as a pretext for all sorts of discriminatory behavior."

For EFF's full reply comments to the FCC:
http://www.eff.org/files/filenode/nn/EFF%20NN%20reply%20comments2b.pdf

For more on net neutrality:
http://www.eff.org/issues/net-neutrality

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org

EFF today released Unintended Consequences: 12 Years Under the DMCA. This is the sixth update to the report, which aims to catalog all the reported instances where the DMCA's ban on tampering with DRM have been abused to stymie fair use, free speech, and competition, rather than to attack "piracy."

Congress enacted the DMCA's ban on bypassing DRM at the urging of entertainment industry lobbyists who argued that DRM backed by law would quell digital copyright infringement. Of course, 12 years later, that exactly hasn't worked out. Nor is it likely to ever work out. But lots of industries have recognized that these provisions of the DMCA are good for other things—like impeding scientific research and legitimate competition. The Unintended Consequences report collects these stories, including oldies like Lexmark's effort to block toner cartridge refilling and new cases like the lawsuit against RealDVD.

Other new additions to the report include Apple's use of the DMCA to lock iPhone owners to Apple's own App Store for software, Apple's DMCA threats against Bluwiki for hosting discussions about iPod interoperability, and Texas Instruments' use of the DMCA to threaten calculator hobbyists trying to write their own operating systems.

Although in many cases the DMCA abuser backs down or is beaten in court, the abuses and resulting chilling effect on legitimate activities continues. And even though the U.S. Copyright Office is considering proposed exemptions to the DMCA, that proceeding won't prevent more abuses in the future.

San Francisco - Twelve years after the passage of the controversial Digital Millennium Copyright Act (DMCA), the law continues to stymie fair use, free speech, scientific research, and legitimate competition. A new report from the Electronic Frontier Foundation (EFF) collects reported examples of abuses of the DMCA and the ongoing harm the law continues to inflict on consumers, scientists, and small businesses.

The U.S. Copyright Office is currently mulling proposed exemptions to the DMCA's ban on "circumventing" digital rights management (DRM) and "other technical protection measures" used to restrict access to copyrighted works. The Copyright Office is empowered to grant exemptions to the law every three years to mitigate the harms that DRM otherwise would impose on legitimate, non-infringing uses of copyrighted materials.

The triennial Copyright Office rulemaking, however, has not been enough to prevent abuses of the DMCA. EFF's report details the numerous harms stemming from the DMCA's ban on circumventing DRM, including Apple's attempts to lock down the iPhone and force users into its App Store. Also new in this year's report is the account of hobbyists threatened by Texas Instruments for blogging about potential modifications to the company's programmable graphing calculators as well as the story behind the legal attacks on Real DVD and other products that create innovative new ways for consumers to enjoy DVD content they have legitimately purchased.

"The DMCA's ban on tampering with digital locks on content is a dangerous anachronism, a holdover from a time when people thought DRM could solve all of Hollywood's problems," said EFF Senior Staff Attorney Fred von Lohmann. "The DMCA's ban on bypassing DRM has failed to stem digital copyright infringement, but it has unfortunately been repurposed as a cudgel to threaten legitimate research and competitors."

Among the DMCA exemption requests currently before the Copyright Office are three from EFF. One asks for an exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial remix videos. Another would explicitly exempt cell phone "jailbreaking," allowing iPhones and other handsets to run applications from any source. EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cells phones so they can be used with any mobile carrier. A final decision on these and other requests is expected from the Copyright Office within the next few weeks.

For "Unintended Consequences: Twelve Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-under-dmca

For more on EFF's exemption requests:
http://www.eff.org/cases/2009-dmca-rulemaking

Contact:

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org

Pittsburgh - On Monday, March 8, at 4 p.m., board members of the Electronic Frontier Foundation (EFF) will discuss the societal impact of technology design in a panel at Carnegie Mellon University.

Technology design can maximize or decimate our basic rights to free speech, privacy, property ownership, and creative thought. The panel will discuss some good and bad design decisions through the years and the ramifications of those decisions.

Monday's panel is free and open to the public.

WHAT:
Architecture Is Policy: The Legal and Social Impact of Technical Design Decisions

WHEN:
4 p.m.
Monday, March 8

WHERE:
Newell-Simon Hall, Room 3305
Carnegie Mellon University
Pittsburgh, PA 15213

WHO:
Ed Felten (Professor of Computer Science and Public Affairs and Director of the Center for Information Technology Policy, Princeton University)
Dave Farber (Distinguished Career Professor of Computer Science and Public Policy in the School of Computer Science, Carnegie Mellon University)
Lorrie Cranor (Associate Professor of Computer Science and of Engineering and Public Policy, Director of the CyLab Usable Privacy and Security Laboratory [CUPS], Carnegie Mellon University)
John Buckman (EFF Board Chair, Serial Entrepreneur)
Cindy Cohn (EFF Legal Director, Moderator)

Contact:

Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org

As we've pointed out repeatedly, poor design decisions in YouTube's "Content ID" system have resulted in over-blocking of videos that remix copyrighted materials. Today we got perhaps the most vivid example of the problem: the "silencing" of a lecture by Prof. Larry Lessig about the cultural importance of remix creativity. This is just the latest of many examples. We've been on YouTube's case for more than two years about this problem, and it's high time for YouTube to fix the Content ID system to respect the kinds of fair uses that are at the heart of remix creativity.

How did Prof. Lessig's video trigger the Content ID block? He included "snippets" (I use that word intentionally, as Google does in the context of its own Book Search product, to refer to small portions that should qualify as a fair use) from several remix videos. As a result, the audio track of his lecture included excerpts of several well-known songs. Apparently at least one of those songs is owned by Warner Music, which has chosen to automatically mute the audio track of any video when the Content ID system detects the presence of those songs. It's not clear which song triggered the block—the Content ID system doesn't tell you that.

Of course, in close cases, reasonable minds can differ about whether a particular use of a song qualifies as a fair use (although some cases are easy). But that's no excuse for the automated Content ID filter to block them—if a copyright owner has a good faith belief that any particular remix video crosses the line, it is free to send a formal DMCA takedown notice. Sending a notice is not hard, nor expensive, as demonstrated by the fact that copyright owners routinely send hundreds of thousands of these notices to YouTube. YouTube's Content ID system even will flag all the videos for the copyright owner's review.

But unlike the automated Content ID blocking, DMCA takedown notices at least put a human into the loop, and these humans must take fair use into account before issuing the notice. In contrast, an automated match by the Content ID system results in an automated removal, even where the copyright owner does not object to the use (and, as poorly behaved as Warner Music has been in the past, I can't imagine it really wants to censor Prof. Lessig's lecture).

Fortunately, YouTube permits users to "dispute" automated Content ID removals, and that's why Prof. Lessig's video is once again available. But that's not nearly good enough. First of all, YouTube's procedures for "removing" videos have created considerable confusion and consternation among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Second, the thousands of lawsuits brought by record labels against individuals for file-sharing has created an atmosphere of fear that makes many YouTubers hesitant to go toe-to-toe with a major record label.

There's just no excuse for the Content ID system to be blocking remix videos. There's nothing in the law that requires YouTube to do this. In fact, section 512(m)(1) of the DMCA makes it clear that service providers do not need to install filters or monitor their services at all, much less allow copyright owners to use filters to block remixes.

Nor is there any engineering reason why the system should be designed this way. The filter can fix this problem by insisting that the audio and video tracks both come from the same copyrighted work and that the entire (or almost entire) video is drawn from the same copyrighted work. Unless these conditions are met, "block" should not be an option available to copyright owners. If a copyright owner wants to take down a remix video, they should have to follow the rules Congress established in the DMCA.

This is exactly what EFF, joined by numerous other public interest groups, asked YouTube to do in 2007 in our Fair Use Principles for User Generated Content. It's a shame that YouTube, a company that has become synonymous with remix creativity, can't find the time to fix its own Content ID system to protect remixers from unnecessary censorship.