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Digital Millennium Copyright Act (DMCA)


Movie Studios Want Google to Take Down Their Own Takedown Request
In a comical display of meta-censorship several copyright holders including 20th Century Fox and NBC Universal have sent Google takedown requests asking the search engine to take down links to takedown request they themselves sent. Google refused to comply with the movie studios requests and the “infringing” DMCA notices remain online. Meanwhile, the number of takedown notices received by Google is nearing 20 million per month.
There's a dark side to Google's transparency efforts, especially when it comes to publishing DMCA requests it receives from copyright holders.
With more than 100 million links to pirated files Google is steadily building the largest database of copyrighted material. This is rather ironic as it would only take one skilled coder to index the URLs from the DMCA notices in order to create one of the largest pirate search engines available. Indeed, the DMCA notices are meant to make content harder to find on the Internet, but in the process they create a semi-organized index of links to infringing material.
This problem is illustrated by several takedown requests that were sent on behalf of movie studio 20th Century Fox recently. Usually these notices ask Google to remove links to pirate sites, but Fox also wants Google to remove the DMCA notices they sent earlier. Below is an example, with Fox stating that this DMCA takedown request is “infringing” itself.
NBC Universal and Lionsgate Microsoft are going after their own takedown notices. We expect that the notices are just another byproduct of the automated tools that are used to find infringing URLs. However, it's a “mistake” that signals one of the key problems of automated censorship, that can lead to an endless loop of DMCA notices. Thus far the infringing takedown notices remain accessible through Google search.
Apparently Google has white-listed the Chillingeffects domain because it doesn't see these indirect links as infringing. While this may seem logical, Google is no stranger to removing non-direct links to links. If we take a look at the text pasting service Pastebin we see that Google removed 82,937 URLs from its index. These indirect links are all non-clickable and no different from the DMCA notices. The standards are shifting in other ways too. No longer is Google merely asked to remove direct links to copyrighted material as the DMCA prescribes, but also links to links to links to copyrighted material. The above shows the growing mess the current DMCA procedures are creating and for now there is no end in sight. Both Google and the copyright holders agree that something has to change, but understandably the solution they envision is quite different. In the meantime, copyright holders continue to push the search engine to its takedown limits at a rate of 20 million URLs a month.


Jessica Wood, The Darknet: A Digital Copyright Revolution, XVI Rich. J.L. & Tech. 14 (2010)

[1] We are in the midst of a digital revolution. In this "Age of Peer Production," armies of amateur participants demand the freedom to rip, remix, and share their own digital culture. Aided by the newest iteration of file sharing networks, digital media users now have the option to retreat underground, by using secure, private, and anonymous file sharing networks, to share freely and breathe new life into digital media. These underground networks, collectively termed "the Darknet[,] will grow in scope, resilience, and effectiveness in direct proportion to [increasing] digital restrictions the public finds untenable." The Darknet has been called the public's great equalizing force in the digital millennium, because it will serve as "a counterbalancing force and bulwark to defend digital liberties" against forces lobbying for stronger copyrights and increased technological controls.

[2] This article proposes a digital use exception to existing copyright law to provide adequate compensation to authors while promoting technological innovation, and the creation and dissemination of new works. Although seemingly counterintuitive, content producers, publishers, and distributors wishing to profit from their creations must relinquish their control over digital media in order to survive the Darknet era. Absent a government-granted monopoly, free market forces will provide adequate incentives to producers to create quality works, and an efficient dissemination infrastructure will evolve.

[3] Part I examines the prospect that, due to the Darknet, it is virtually impossible to control digital copying. Peer production is increasing and darknets are becoming more prevalent. Liability rules, stringent copyrights, and technological protection measures stifle innovation, smother creation, and force consumers further underground into darknets. The Darknet poses a particular threat because it is impossible to track or proscribe user behavior. Further, the presence of the Darknet will render technological protection measures unenforceable, or at least impracticable, as a solution for digital copyright management. Part II introduces a digital use exception for copyright to deter development of the Darknet. The proposed copyright shelter is the solution most closely aligned with the goals of copyright, and a monopoly is no longer necessary or practical to accomplish those goals in the digital realm. Part III explores methods by which content creators, publishers, and distributors can profit under this new rule. Absent copyrights for digital works, service providers will capitalize on alternative business methods and data mining. Driven by necessity, they will commission the production of new works.

Ten Years of DMCA

Microsoft Sells Out the Public on CGMS-A
Although the Digital Millennium Copyright Act gave the public a raw deal, its reach is not unlimited. The DMCA's scope is expressly limited by the so-called "no mandate" clause, which establishes that technologies that deal with unencrypted, open standard media formats are not restricted by the DMCA. These technologies are unregulated even if the entertainment industries dislike them and even if they do not obey those industries' preferences for restricting users. Absent additional legislation, the copyright holders have no right to control general-purpose technologies -- like computers, sound cards, or software -- that deal only with open standards. That's why the Motion Picture Association of America has long sought new "technology mandate" legislation to go beyond the DMCA: to impose the broadcast flag, to "close the analog hole," and to also

Regulate file-sharing software.

Intel believes that the DTCP-IP technology is an important element in enabling protected transport of compressed content within the home network.

"Computer Spyware Protection Act" actually allows companies to spy on what you do with your personal computer.
April 05, 2006
Oklahoma House bill to open your computer to companies
(not the US Congress) Get ready for Microsoft, cable and phone companies, and quite a few other people to know a lot more about what you do on your computer, thanks to House Bill 2083.
House Bill 2083 is available in Microsoft Word/RTF format at the Oklahoma Legislature Web site
It's supposed to protect you from predators spying on your computer habits, but a bill Microsoft Corp. helped write for Oklahoma will open your personal information to warrantless searches, according to a computer privacy expert and a state representative.
Called the "Computer Spyware Protection Act", House Bill 2083 would create fines of up to a million dollars for anyone using viruses or surreptitious computer techniques to break on to someone's computer without that person's knowledge and acceptance, according to the bill's state Senate
author, Clark Jolley.
"The bill has a clear prohibition on anything going in without your permission. You have to grant permission", said Jolley, R-Edmond. "You can look at your license agreement. It will say whether they have the ability to take thatinformation or not".
But therein lies the catch.
If you click that "accept" button on the routine user's agreement, the proposed law would allow any company from whom you bought upgradable software the freedom to come onto your computer for "detection or prevention of the unauthorized use of or fraudulent or other illegal activities in connection with a network, service, or computer software, including scanning for and removing computer software prescribed under this act".

Section 6 of the act says such a prohibition “shall not apply” to “telecommunications carrier, cable operator, computer hardware or software provider or provider of information service” and won't apply to those companies in cases of “detection or prevention of the unauthorized use of or fraudulent or other illegal activities.”
That means that Microsoft (or another company with such software) can erase spyware or viruses. But if you have, say, a pirated copy of Excel - Microsoft (or companies with similar software) can erase it, or anything else they want to erase, and not be held liable for it. Additionally, that phrase "fraudulent or other illegal activities" means they can:
  • Let the local district attorney know that you wrote a hot check last month.
  • Let the attorney general know that you play online poker.
  • Let the tax commission know you bought cartons of cigarettes and didn't pay the state tax on them.
  • Read anything on your hard drive, such as your name, home address, personal identification code, passwords, Social Security number ... etc., etc., etc.

"I think in broad terms that is still a form of spying", said Marc Rotenberg, attorney and executive director of the Electronic Privacy Information Center in Washington, D.C. "Some people say, 'Well, it's justified'. I'm not so clear that should be the case. Particularly if the reason you are passing legislation is to cover that activity". ~ Ben Fenwick

Princeton Scientists Sue Over Squelched Research Electronic Frontier Foundation Challenges Record Companies 6/01

Trenton, NJ - The Electronic Frontier Foundation (EFF) today asked a federal court to rule that Princeton University Professor Edward Felten and his research team have a First Amendment right to present their research on digital music access-control technologies at the USENIX Security Conference this August in Washington, DC, despite threats from the recording industry.
When scientists from Princeton University and Rice University tried to publish their findings in April 2001, the recording industry claimed that the 1998 Digital Millennium Copyright Act (DMCA) makes it illegal to discuss or provide technology that might be used to bypass industry controls limiting how consumers can use music they have purchased.
Like most scientists, the researchers want to discuss their findings and publish a scientific paper about the vulnerabilities of several technologies they studied. Open discussion of music customer control technologies has resulted in improved technology and enhanced consumer choice.
"Studying digital access technologies and publishing the research for our colleagues are both fundamental to the progress of science and academic freedom," stated Princeton scientist Edward Felten. "The recording industry's interpretation of the DMCA would make scientific progress on this important topic illegal."
Felten's research team includes Princeton University scientists and plaintiffs Bede Liu, Scott Craver, and Min Wu. Also members of the research team and plaintiffs are Rice University researchers Dan Wallach, Ben Swartzlander, and Adam Stubblefield. Another scientist and plaintiff is Drew Dean, who is employed in the Silicon Valley. The USENIX Assocation has joined the case as a plaintiff.
The prominent scientist and his research team originally planned to publish the paper in April at the 4th International Information Hiding Workshop. However, the scientists withdrew the paper at the last minute because the Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) Foundation threatened litigation against Felten, his research team, and the relevant universities and conference organizers.
SDMI sponsored the "SDMI Public Challenge" in September 2000, asking Netizens to try to break their favored watermark schemes, designed to control consumer access to digital music. When the scientists' paper about their successful defeat of the watermarks, including one developed by a company called Verance, was accepted for publication, Matt Oppenheim, an officer of both RIAA and SDMI, sent the Princeton professor a letter threatening legal liability if the scientist published his results.

EFF filed the legal challenge in New Jersey federal court against RIAA, SDMI, Verance, and the U.S. Justice Department so that the researchers need not fear prosecution under DMCA for publishing their research.

"When scientists are intimidated from publishing their work, there is a clear First Amendment problem," said EFF's Legal Director Cindy Cohn. "We have long argued that unless properly limited, the anti-distribution provisions of the DMCA would interfere with science. Now they plainly have."
"Mathematics and code are not circumvention devices," explained Jim Tyre, an attorney on the legal team, "so why is the recording industry trying to prevent these researchers from publishing?"
USENIX Executive Director Ellie Young commented, "We cannot stand idly by as USENIX members are prevented from discussing and publishing the results of legitimate research."
EFF is challenging the constitutionality of the anti-distribution provisions of the DMCA as part of its ongoing Campaign for Audiovisual Free Expression (CAFE). The CAFE campaign fights over-reaching intellectual property laws and restrictive technologies that threaten free speech in the digital age. "The recording studios want to control how consumers can use the music they buy. Now they want to control scientists and publishers, to prevent consumers from finding out how to bypass the unpopular controls," said EFF Staff Attorney Robin Gross.

Professor Felten's website

For more information on the August USENIX Security conference

About EFF:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to websites in the world:

The USENIX Association, an organization representing some 10,000 computer research scientists is dedicated to the free exchange of scholarly information through its many
conferences and publications.

Cindy Cohn, EFF Legal Director, +1 415 436-9333 x108,
Edward Felten, Princeton University Professor, +1 609 258-5906,
Robin Gross, EFF Staff Attorney, +1 415 436-9333 x112,
Gino J. Scarselli, Esq., Outside Lead Counsel, +1 216 291-8601,
James S. Tyre, Esq., Outside Counsel, +1 310 839-4114,
Ellie Young, USENIX Executive Director, +1 510 528-8649 x18,

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James S. Tyre jstyre @
Law Offices of James S. Tyre 310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512 Culver City, CA 90230-4969
Co-founder, The Censorware Project