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Senate Judiciary Committee Endorses Federal Shield Bill

The United States Senate Judiciary Committee voted today to endorse a bill that would give journalists a qualified privilege from having to testify in court about their confidential sources and to disclose their news gathering materials. In a 15-2 vote, the committee sent the legislation, S. 2035, to the full Senate, where it is expected to face stiff opposition from Republican senators and the Bush administration. Presiding over the committee session, Chairman Patrick Leahy (D-Vt.) remarked:

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Report Describes High Cost of Copyright Confusion for Media Literacy

The Center for Social Media at American University has just released a study entitled The Cost of Copyright Confusion for Media Literacy. The report, which is based on interviews with dozens of teachers and educators, concludes that:

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Not Every Cease-And-Desist Letter is a DMCA Takedown Notice

Today, the Chilling Effects Clearinghouse posted a cease-and-desist letter from MediaDefender to gpio.org complaining that MediaDefender's leaked emails had been posted to the site. The operator of the site, which subsequently moved to http://mediadefender-defenders.com (but not because of the letter), also posted the letter and his reply. His reply quite effectively points out that he and his server are in Norway and thus "it appears that your legal grounds for throwing letters at me claiming this-or-that is shaky enough that you might want to relocate."

This exchange reminded me of an article in Ars Technica a few weeks back discussing the reactions of peer-to-peer site operators to similar letters from MediaDefender. I meant to post on this article at the time, but forgot about it until today. The gist of the story is that some peer-to-peer site operators received cease-and-desist letters from MediaDefender and responded with blistering comments ridiculing the MediaDefender lawyers for their impoverished understanding of U.S. copyright law. For example:

[isoHunt's] formal response to SMR&H is filled with caustic wit and considerable legal expertise. "If Mr. Gerber is truly as experienced in IP law as his bio claims he is," asks the isoHunt administrator in his response, "why is it that he is incapable of composing a DMCA takedown notice as per USC Title 17 Section 512?" The isoHunt administrator explains that Gerber failed to adequately specify the allegedly infringing content as required by law. The administrator also helpfully provides a link to a valid sample complaint so that SMR&H will be less likely to send the improper information in their second attempt. The following is an excerpt of the isoHunt administrator's response:

"This e-mail serves as a counter notification under USC Title 17 Section 512(c)(3)(A)(iii) that you have failed to properly identifying links to content that allegedly infringes your copyright/trademark/rights (or, in this case, has something to do with really embarrassing trade secrets *and* employee social security numbers) AND you have failed to address your e-mail to the appropriate agent, namely copyright@isohunt.com, so I invite you and your clients to take a long walk off a short pier, since you and/or your clients might actually manage to NOT get something that simple wrong."

In closing, the isoHunt administrator says that the he will comply with the request if it is properly submitted. "Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it," he concedes, "just as soon as we're done laughing at you."

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Has Common Sense Flown the Coop: Copyright doesn't protect book prices

The Harvard Crimson has been reporting on the Harvard Coop’s silly claims of “intellectual property” against those who come to the bookstore to compare prices. It’s escalated all the way to calling the cops, who wisely refused to throw students out of the store.

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Texas Judge Orders Discovery of Anonymous Blogger's Identity

A recent case from Texas highlights the difficulty of identifying the correct legal standard for determining when a court should order disclosure of the identity of an anonymous person engaging in speech on the Internet. In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog.

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Volkswagen Subpoenas YouTube for Identity of User Who Posted Nazi-Themed Video

In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.

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Creationist-Atheist Brouhaha Over DMCA Takedown Notices

Ars Technica reports that Creation Science Evangelism (CSE), a creationist group founded by Kent Hovind (who is currently in prison for violations of federal tax law), recently sent a raft of questionable DMCA takedown notices to YouTube complaining that various user-posted videos infringed its copyrights in videos of its seminars.

Among those users whose videos were taken down was the Rational Response Squad (RRS), a group of atheists dedicated to "fighting to free humanity from the mind disorder known as theism." Apparently, the videos flagged for removal were all critical of CSE, and some consisted of expression entirely original to the YouTube poster. Other videos used portions of CSE's own videos to make critical commentary about the organization. When its videos were removed, RRS unleashed a firestorm of criticism, threatening to sue CSE for abusing the DMCA's notice-and-takedown provisions and even contacting the prosecuting attorney in Hovind's tax case to inform her of CSE's conduct. Others have joined in the mix (here, here, and here). It appears that YouTube canceled RRS's entire account for a time (the rationale for doing so is not clear), but later reinstated it.

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Ethics and Copyright Liability for Reprinting Content

Reprinting content from other information sources is one of the trickiest areas of communications law -- especially for bloggers and other publishers on the Internet, where the legal framework has yet to be established. InfoMean blog has a useful set of pointers to help publishers avoid infringement lawsuits when reprinting information.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

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CMLP Seeking Interns

The CMLP is looking to hire law students (and lawyers) to work as paid interns for the 2007-08 academic year. Interns will perform legal research and draft sections of the CMLP’s legal guide and will analyze recent lawsuits and other legal threats involving online speech for our legal threats database. Interns will be required to work onsite at our offices at Harvard Law School's Berkman Center for Internet & Society in Cambridge, Massachusetts one day per week, but otherwise will be permitted to work remotely.

If you are interested in working on cutting edge legal issues relating to the intersection of law and journalism on the Internet, please apply. You can find more information on the position and where to apply here. (For information about other opportunities at the Berkman Center, come to their Open House on September 24th.)

On a related note, if you are a college student -- and a blogger -- you should consider applying for the Daniel Kovach Scholarship Foundation's college blogger scholarship. Applications for the scholarship, which pays $10,000, are due October 6, 2007. Details can be found at the Foundation's website.

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Pennsylvania Considering Strengthening Open Records Law

The Pennsylvania House and Senate are considering new legislation designed to strengthen the state's Open Records Law. This is welcome news, as Pennsylvania's current law is one of the most antiquated -- and public-unfriendly -- laws in the country. (It's an indication of Pennsylvania's disregard for public access that I had to link to the Pennsylvania Newspaper Association's website for the current version of the law because the state's legislative website does not include laws enacted prior to 1975, and the Pennsylvania law came about in 1957.)

There are currently three Open Records reform bills pending in the Pennsylvania House and Senate: HB 443, introduced by Rep. Tim Mahoney; SB 1, introduced by Sen. Dominic Pileggi; and SB 765, introduced by Sen. Jim Ferlo.

The Evening Bulletin, which does a good job comparing the three versions, is sanguine that a reform bill will pass this session:

A major obstacle standing between proposed reform and passage is the reformers themselves. They all appear to agree on the need for more access to public records, but they don't all agree on how it should be accomplished. It is more difficult to find and acquire public records in Pennsylvania than just about anywhere else in the country.Legislators, terrorized by the threat of being cast and perceived in an election year as against reform, appear ready to vote for open records reform.

To help recalcitrant legislators do the right thing, the Pennsylvania Newspaper Association and PassOpenRecords.org are sponsoring a public "PA Open Records Challenge." Let's hope they succeed in pushing through a reform bill. It's long overdue.

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Riz Khan of Al-Jazeera English Interviews Egyptian Blogger Wael Abbas

This interview of Wael Abbas sheds some light on the legal and political climate for bloggers in Egypt. While Wael has not been detained by the Egyptian security forces for his blogging, the government has put him under surveillance and harassed him and his family, both electronically and otherwise. He says that one of his biggest fears is "somebody filing a lawsuit against [him], accusing [him] of defaming Egypt or spreading false rumors -- the usual stuff that is used against journalists in Egypt."

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DMCA Truth Can Be Stranger than Science Fiction

Author Denise McCune posts a great account of the workings and failings of the DMCA's notice-and-takedown procedures.

As Cory Doctorow has also reported on BoingBoing, the VP of the Science Fiction and Fantasy Writers of America sent an error-filled takedown complaint to text-sharing site Scribd, causing removal of many non-infringing postings including reading lists suggesting great science fiction, and Cory's own novels, which he's CC-licensed for free redistribution.

The DMCA safe-harbor is most charitably described as an intricate dance for all parties involved: the copyright claimant, the ISP, and the poster. When the dancers are synchronized, its notice, takedown, and counternotice steps give each party a prescribed sequence by which to notify the others of claims and invite their responses. That's why the DMCA requires the claimant to identify the copyrighted works, specify alleged infringements with "information reasonably sufficient to permit the service provider to locate the material," and state good faith belief that the uses are unauthorized. When a copyright claimant misses one of those key elements, he starts stepping on toes.

The service provider isn't obliged to respond to deficient notices, but if a notice contains all the right formal elements -- even if it's factually wrong about copyright ownership or copying -- the service provider must choose between taking down the material or losing its DMCA safe-harbor and facing potential lawsuits. Posters who believe their material is non-infringing or fairly posted can counter-notify and even file their own lawsuits for misuse of copyright claims, under sec. 512(f). I share McCune's hope that the brouhaha will help the SFWA to help authors express all their copyright interests, including that of free sharing:

I hope the SFWA's lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I'm also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further -- and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted -- whether that control is a more traditional "nobody gets to use this, period" or a Creative Commons-style authorization of transformative work.

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