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Last week, the big news in DMCA takedowns was the sweeping removal of Hitler parody videos . Earlier this year, it was Google suddenly wiping out six separate music blogs . Today, it's the removal of a tweet . While this might not seem like a big deal on the surface, it leads to some much bigger questions about free speech, what content should fall under a proper DMCA take-down and whether or not the DMCA is a legal method of applying censorship by any content owner. Sponsor Here's the story as told by TechDirt: The story involves a music blogger named JP, who runs the appropriately named JP's blog . Not surprisingly, JP also has a Twitter account , where he mostly seems to post links to his blog posts. One such post was about the leak of the new album by The National. That post includes a link to Amazon where people can purchase the new album... and also a link to a download of one song (in MP3 format) from the album. According to JP's blog post on the subject, Twitter sent him a message last Thursday "in response to a DMCA take-down notice". The email, he writes, read as follows: jp917, Apr 22 03:10 pm (PDT): Hello, The following material has been removed from your account in response to a DMCA take-down notice: Tweet: http://twitter.com/jp917/statuses/12499491144 - New Post: Leaked: The National - High Violet http://jpsblog.net/2010/04/20/leaked-the-national-high-violet/ JP denies posting any link to the leaked album in his tweeted blog post, saying that he will not bother filing a counterclaim to the take-down. He also links to an article in Plagiarism Today from a year ago that alleges that Twitter's handling of DMCA take-downs and counterclaims is problematic and that "there is clearly an organization issue here and that's leading to confusion." While last weeks' take-downs of parody videos may have been "overbroad take-downs of legal content" , as the Electronic Frontier Foundation asserted, this sort take-down may go an extra step, beyond constitutionally protected First Amendment speech. With the YouTube take-downs, at least there was copyrighted content present, although it may have been used according to the law in the end. In this case, according to JP, there was neither pirated content nor a link to any DMCA-violating content. While TechDirt argues that "specifically, nothing in the tweet itself is infringing -- which means that the DMCA take-down for the tweet is bogus, and a violation of the DMCA itself", we spoke with David Sohn, senior policy council with the Center for Democracy & Technology , who said that the question might not be so cut and dry. Section 5.12D of the DMCA relates to cases involving "information location tools" and "links". "One possibility here is that Twitter has gotten a take-down notice that might not stand up as a totally valid take-down notice," said Sohn. On Sohn's advice, we asked Wendy Seltzer, founder of ChillingEffects.org , what this all meant and she explained that the burden of proof lies with the person creating the content and not the platform. All the platform, in this case Twitter, needs to know is that the complaint me be valid and that, by removing the offending content, they cover themselves legally in the eyes of the DMCA. Whether or not section 5.12 D of the DMCA actually applies doesn't really matter. The introduction to her recent paper, "Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment" (.pdf), speaks clearly to the problem we saw when first reading this story: Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the "safe harbors" of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law's shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech. The problem with the current format of the DMCA, especially in the case of something like a communication platform such as Twitter, is that a DMCA take-down notice becomes an extremely effective means of silencing information for a legally mandated period of 10 days. In essence, it provides those who wish to silence a voice a quick and legal means of enacting what is called a " prior restraint ", something clearly prohibited in First Amendment law. "When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas," writes Seltzer in the paper. Twitter offered this response: "Twitter regularly receives DMCA takedown notices. We strive to balance the interests of our users and copyright holders by reviewing each notice. After determining whether the notice is compliant with the law, we also consider other factors such as whether the notice is abusive to our users, or fails to take fair use into consideration. You can read more about our DMCA process here: http://help.twitter.com/entries/15795-copyright-and-dmca-policy "We are always working to improve our transparency. Users are notified immediately when content has been removed from their account. In this situation, we responded to a request to remove a Tweet containing a link to download content from an unreleased album. After reexamining our decision, we believe this was the correct first step. If the affected user believes we have made a mistake or that the notice is in error, the appropriate thing for the user to do is file a counter-claim. "We believe that the reasoning of the DMCA claim and its origin should be transparent to both the affected user and other interested parties. We are working on further steps to improve access to this information." So, our next logical question here is: Since this post includes the email from Twitter, which includes that original link to a blog post that supposedly linked to infringing content, can it too be removed according to the guidelines of the DMCA? Discuss
The rest is here:
Twitter, DMCA Take-downs & the Prior Restraint of First Amendment Speech
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We store music on iTunes despite its stringent DRM, preventing us from freely sharing music. But like any innovation in the marketplace, it takes time for us to determine what is acceptable and what is not. The promise of cloud computing and the ability to store limitless amounts of music may perhaps be that turning point. But it could also mark a more stringent time than we have ever known. Sponsor Canonical has unveiled the public beta of its Ubuntu One music store that gives a glimpse of what cloud computing may offer as an alternative to storing music on our hard drives or a proprietary service like iTunes. This is new territory. As Canonical point out, integrating a cloud service like Ubuntu One with buying music is new for digital music stores. Ubuntu One serves as a desktop music service that stores the music in the cloud and syncs it with your computer. It allows someone to purchase music and then store it in their Ubuntu One account . Ubuntu One also serves as a service to store other kinds of information such as images or documents. The service will go live in late April to coincide with Ubuntu's new release . In the meantime, Canonical is looking for beta testers to give it a try. Helpful infomation is on the Popey blog : As with everything in Ubuntu Lucid, the developers are keen to get people testing the store before Lucid is shipped at the end of April. If you're running Ubuntu Lucid either on bare metal or inside a Virtual Machine, it would help greatly if you could take some time to test this new functionality. So far only a very limited number of beta testers have been using the store, so opening up the store to public scrutiny should generate plenty of feedback to the developers. These are the early days of music services that allows you to purchase, store music in the cloud and sync with your computer or smartphone And it comes with definite kinks. The Ubuntu One service is free for up to 2 gigabytes of storage. If you go beyond that you start to pay. That could happen pretty quickly as people can use the service to store any kind of information they want. Plus, there are the copyright laws that have had to be taken into consideration for the service. Music, in some respects, defines how we view the ways we store information. Music is deeply personal. We want easy access to it. We want it always to be there. Cloud services may provide this capability but they also run the risk of acting as walled gardens that can be controlled perhaps even more easily than a service like iTunes. Discuss
Originally posted here:
Canonical Ubuntu One Music Service Goes Into Public Beta
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Due to Digital Millennium Copyright Act (DMCA) complaints filed by Microsoft, whistleblower website Cryptome [link to a backup version of the site] has been disabled by its ISP, Network Solutions. The complaints were due to the fact that Cryptome published a 22-page Microsoft Global Criminal Spy Guide. Microsoft claimed copyright infringement, Cryptome's editor refused to budge, and the site was taken down this afternoon. Cryptome has previously published similar guides from Facebook, AOL, Yahoo and Skype; the site has been threatened but never before actually disabled. Sponsor The Microsoft document was originally published on Feb. 20. Microsoft demanded that Cryptome remove the PDF, and when the editor refused, Cryptome's ISP sent a warning: If the document was not removed by Thursday, the site would be disabled. However, the site was taken down Wednesday afternoon. The reason Cryptome refused to remove the PDF of Microsoft's so-called "spy guide" was that editor John Young believed its programs, which make it easier for law enforcement to obtain user data, showed "improper use of copyright to conceal violations of trust toward its customers," according to an interview with Geekosystem. "Copyright law is not intended for confidentiality purposes," he continued. "We think all lawful spying arrangements should be made public Microsoft should join the others who openly describe [their] procedures." Young named Cisco as one such company. Cindy Cohn of the Electronic Frontier Foundation said in a call today, "We find it troubling that copyright law is being invoked here. Microsoft doesn't sell this manual. There's no market for this work. It's not a copyright issue. John's copying of it is fair use. We don't do this anywhere else in speech law." For example, in cases involving libel or trade secrets, said Cohn, "You go to court, you make a case and you get an injunction. You don't just file a form. DMCA makes censorship easy." Cohn also noted she feels the reason Microsoft actually wants the document removed from the Web is because, for a large corporation with millions of users and an aggressive PR agenda, the document raises concerns and sparks conversations the company would rather not confront. "It's part of a very intense political debate about the role of intermediary companies like Microsoft aiding surveillance for law enforcement. It's embarrassing for Microsoft for their users to see how much the people who carry their email have arrangements with law enforcement. "All of the people who carry our communications are an easy conduit for our government to spy on us, and a lot of people are unhappy about that. It's a legitimate public debate, and Microsoft doesn't want to be part of that debate." We hope that Microsoft does, in fact, release their stranglehold on Young and his site and take part in a conversation with their users about how their data can be accessed by others, including law enforcement. We've reached out to them for comment and will update this post if and when we hear back. In the meantime, let us know your thoughts in the comments. UPDATE: Still no word from Microsoft, but here's that document they really don't want you (or anyone else) to see. We hope to hear from a Microsoft representative soon to discuss the intentions and implications of this guide. Thanks to Glenn Davis of Geekosystem for the tip. Discuss
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Microsoft Kills Watchdog Website Due to Leaked Documents
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