Food for Thought: Berners-Lee’s Internet Magna Carta

Recently, the world celebrated the 25th birthday of the World Wide Web (Web) as created by Tim Berners-Lee.  The Web represents one of the most important pieces of technology today, as it makes the commercial internet (the one you and I are using right now) possible.  As part of this celebration, Berners-Lee went on a number of interviews.  In these interviews, Berners-Lee called for a kind of Internet Bill or Rights or Magna Carta to protect the rights of users against various forms of overreach.  The idea is that various interests, particularly national and corporate interests, threaten to erode the rights of private users.  Berners-Lee feels these rights need explicit protection, the kind normally provided by the highest forms of law.

There are two major questions that come to mind when reading Berners-Lee’s comments.  First, is an Internet Bill of Rights a good idea?  I personally feel that a well-executed Internet Bill of Rights is a good idea.  Given some of the recent revelations regarding user privacy, having some protections in place for ordinary web users would be useful.  There is a strong counter-argument that current government mechanisms should be sufficient to protect the rights of web users.  In other words, the current US Bill of Rights (especially the First and Fourth Amendments) should sufficiently protect American users and provide them with some recourse against government and corporate overreach.  There are three major problems with this argument.  First, actual US courts have been inconsistent in applying precedent to technology and internet cases.  The issue with whether police can search a cell phone incident to an arrest without a warrant or the continuing legal fight over the NSA’s storage and use of metadata serve as examples of this phenomenon.  Second, such constitutional restraints only apply to the government.  Corporations require specially enumerated laws for such protections to exist.  Third, the rights protected under law vary wildly between countries.  Data protected in the European Union or United States under the letter of the law is not protected in many other countries.  However, finding a baseline of rights between all countries that use the internet raises a host of other logistical issues.

Second, how would the Internet Bill of Rights operate?  This is where I feel that, from a practical standpoint, the idea runs into major problems.  There are a number of logistical problems that need to be overcome.   First, there is an issue of enforcement mechanisms.  Some entity needs to ensure that governments and companies follow the Internet Bill of Rights, and that they can be brought to trial if they violate user rights.  While a trans-national entity such as the United Nations might work just for putting the rights on paper, there is little the UN can realistically do to hold violators accountable.  Placing control and enforcement of the Bill of Rights under a nation solves the enforcement issue, but raises concerns that enforcement will serve that country’s national interests.  Placing the enforcement and interpretation under a non-profit organization like the ICANN (which manages the Domain Name System, or DNS) potentially serves as a middle ground.  The non-profit route is far from perfect (ICANN also serves as an example in this respect) and might still lack the enforcement mechanisms to make an Internet Bill of Rights more than words on a digital sheet of paper.  These issues don’t even address what rights the various internet-using nations of the world could all agree to support.

Despite these issues, I would love to see this idea pursued further.  It would just take time, energy, and a dash of creativity.

Update (5:28): This is unrelated to the above material, but it looks like Popcorn Time took down their service (http://arstechnica.com/business/2014/03/netflix-like-torrenting-app-popcorn-time-disappears/).  They left a brief note on their webpage protesting the nature of current copyright law.

 

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Popcorn Time and Grokster

Popcorn Time is an internet service recently gaining a lot of attention.  A lot of this attention is because of how simple Popcorn Time makes torrenting.  For those who don’t know, torrenting is a method of speeding up the downloading of large files.  It works by distributing the work of downloading to many users (colloquially referred to as a swarm), so that the entire swarm contributes to the process of downloading large files.  The data gathered by the swarm is then compiled by a client, such as BitTorrent or uTorrent.  Now, torrenting does have legal uses (such as distributing Linux distributions) but torrenting’s effectiveness in sharing large files made it a tempting method of sharing movies.

Popcorn Time’s strength is that it does most of the hard work on its own.  You simply select a movie you want to see, and Popcorn Time handles all of the potentially confusing aspects of torrenting.  You just click a button and the video plays.  That makes for an incredible program, but it also makes for some obvious legal issues.  If the ease of use (and press coverage) result in increased use, Popcorn Time is almost certainly going to hear from the MPAA’s attorneys.

For their part, Popcorn Time insists that they don’t have much to worry about from a legal standpoint.  According to TechCrunch, Popcorn Time legal defense lies in the fact that they don’t host the information themselves and that they don’t make money from their web service.  They also told Ars Technica that they have a dialog box warning that certain uses may be illegal in the user’s country.  Unfortunately, US law doesn’t inspire much confidence that they’re correct.

There are two cases that provide some basic guidance in this case: MGM v. Grokster (Grokster) and Arista Records v. LimeWire (LimeWire).  These cases deal with two different file sharing services from the post-Napster era.  Grokster was a person to person (P2P) filesharing service.  The issue in the Grokster case revolved around whether the Sony Betamax precedent (from Sony v. Universal) applied to Grokster.  The Sony Betamax case held that a court cannot hold a manufacturer liable for infringement if the devices they sold had substantial non-infringing uses and were sold for legitimate purposes.  The Supreme Court held that, in Grokster’s case, their technology encouraged copyright infringement and that Grokster promoted such infringement to their benefit.  Grokster also created the inducement test, which states that a company is liable for contributory infringement (helping facilitate the infringement of others) if their conduct encourages infringement.  As a result, Grokster could not claim protection under the Sony Betamax case.

The LimeWire case serves as one of the first major applications of Grokster’s inducement test.  The Supreme Court, in LimeWire’s case, found that LimeWire induced contributory infringement because 1. around 93% of the material on LimeWire’s servers infringed, 2. they were aware of the existence of a substantial number of infringing materials, 3. the company’s efforts assisted and enabled such infringement, 4. its business depended on infringement, and 5. LimeWire took no efforts to mitigate infringement.  The final point is particularly applicable to Popcorn Time.  LimeWire claimed that one of their attempts to mitigate infringement was to post a statement to users, reminding users that downloading copyrighted items is illegal and warning them not to use LimeWire for those purposes.  The Court found this not to represent an attempt to mitigate any benefits from users downloading copyrighted items.

There is one substantial difference between Popcorn Time and these other two cases: Popcorn Time is an open source project created by a group of programmers receiving no compensation for their efforts.  In both Grokster and LimeWire’s cases, the companies in question made money off the infringement.  There is no indication that anyone is making any money off Popcorn Time.  Both LimeWire and Grokster make it clear that financially benefiting from the infringement created by the service is a factor when determining inducement.  Whether that gets Popcorn Time off the hook by itself is an interesting question.  Another interesting question is the Popcorn Time’s open sourced nature and how that would affect standing and redressability (the ability of the court to actually right the alleged wrong).  As a point of reference, content holders have generally chosen to sue users or the torrent sites (like the Pirate Bay in Sweden) rather than the program developers.

For what it’s worth, Popcorn Time provides a neat service that clearly fills a niche.  Netflix’s Instant Streaming service shows that there is a big demand for a service that allows users to download or stream content in an easy to use manner.  In addition, one of the major complaints with Netflix is its “limited selection of movies, especially the latest releases.”  There is consumer demand for a service that gives users easy access to the latest movies.  That alone makes Popcorn Time a service worth following.

Getty and Digital Copyright

Getty recently made a rather substantial change to their business model.  Instead of charging websites for use of their stock images (as they previously had), Getty instead will allow for non-commercial use of some of their images.  In exchange for use of these images, Getty will offer their data to other businesses.  

Now, this business model is hardly unique.  Facebook and Google both profit handsomely off selling user data to marketing firms.  What makes this move interesting how Getty treated bloggers who used their images previously.  Prior to this move, Getty sued many, many people over alleged infringing use of their images.  According to the International Business Times, Getty filed five single image lawsuits in January of this year.  Even before those lawsuits, Getty acquired a reputation for being very protective of their images (though they rarely brought this suits to court).

This move by Getty simply acknowledges the realities of copyright in a digital world.  Nothing invalidated Getty’s copyright over these images.  These lawsuits were always valid, and could potentially harm the defendants on their receiving end.  Preventing the infringement, on the other hand, can be close to impossible.  Computers make copies by design, and reining in the spread of information is close to impossible.  Companies can employ some kind of Digital Rights Management (DRM), but DRM always risks alienating customers or making the product unusable. 

Getty instead chose to, at minimum, to take the path of least resistance in regard to noncommercial use of their media.  It represents a move in the right direction to realize that suing Twitter users is probably not the best use of their legal department’s time.  Instead they’ve decided to make money by selling user information gathered through free use of their stock images.

P.S. Colbert had a great bit on Warner Music Group’s strict royalty demands for use of the song “Happy Birthday.”  The bit is hilarious and well worth a watch.  It made a copyright nerd such as myself very happy.

 

Keurig Adds DRM

Keurig recently announced a decision to add a form of digital rights management (DRM) like restrictions on their future coffee makers (http://www.canadianbusiness.com/companies-and-industries/keurig-2-single-serve-coffee-pod-drm/).  Basically, the next set of Keurigs will include certain hardware preventing people from brewing generic “K-Cups” (the single serve packs you pop into a Keurig to brew the coffee).  Green Mountain Foods (the owner of Keurig) previously held a patent on the K-Cup design that allowed them to exclude competitors.  That patent expired in 2012 (http://blogs.wsj.com/corporate-intelligence/2012/11/28/the-k-cup-patent-is-dead-long-live-the-k-cup/), opening up use of the K-Cup design to other companies.  Other companies quickly capitalized, typically selling below what Green Mountain charged for official K-Cups.  Green Mountain still controls a great deal of the K-Cup marketplace, despite the availability of generic options.

I know a number of people who love these machines, but these behavior smacks of trying to lock out the competition.  Previously, the patent allowed Green Mountain to maintain a monopoly on who could and could not use the K-Cups.  Green Mountain took advantage of that, particularly by licensing the use of K-Cups to various companies when they deemed it in their interest to do so.  Starbucks is an obvious example of a K-Cup licensee.  Now that the patent has expired, Green Mountain can no longer exclude their generic competition.  This competition includes other K-Cup options, such as reusable K-Cups (http://www.reuters.com/article/2012/02/03/us-coffee-idUSTRE81203720120203).

The K-Cup patent serves as a good reminder as to why the patent system exists, and why the government grants companies the right to exclude competition.  Basically, a patent tries to allow an inventor to benefit from its research and development.  The inventor has to file copies and descriptions of their design.  These designs get released to the public, with the full intention of allowing for other people to use them after the patent expires (usually after 20 years).  The logic is that the state gives that inventor a period of time with which to benefit from creating something new and innovative.  After that time runs out, the inventor has to allow the public at large to benefit from the new and innovative design.  The patent, as a result, acts as a kind of negotiated bargain that tries to promote the creation of innovative technology by giving the inventor a financial incentive to invent (and preventing other entities from simply piggybacking on their design for a period of time).  The anti-competitive nature of patents is often seen as a necessary, and temporary, evil.

There is no benefit, however, to trying to exclude competitors further.  A number of the above sources mention that, like printers, the real money comes from selling the coffee maker at a low cost and making the real money on the refills.  Green Mountain does, as a result, have a financial reason to want to exclude their competition.  That doesn’t excuse them actually taking measures to lock out competitors.

Lessig Prevails on Little Used DMCA Provision, and Fourth Amendment Protection of Cell Phones

Way back in August of 2013, I wrote a blog post documenting a legal dispute between law professor Lawrence Lessig and Liberation Music (https://nicoterablawg.wordpress.com/2013/08/23/dmca-overreach-how-a-little-used-provision-makes-a-big-difference/).  Liberation owned the rights to a song by the band Phoenix called Lisztomania, which Lessig used in a Creative Commons conference.  Recently, Lessig and Liberation settled (http://torrentfreak.com/lawrence-lessig-wins-damages-for-bogus-youtube-takedown-140228/).  The settlement involved Liberation paying an undisclosed amount to the Electronic Frontier Foundation and “fixing” its DMCA takedown policies to account for fair use.

Anyone with knowledge of fair use provisions could have seen this result coming.  As stated in the earlier article, I liked this case for two reasons.  First, it served as an illustration of how fair use operates as an exception to normal copyright protection (it helps when the defendant is a law professor talking about fair use).  Second, it highlighted a little used provision of the DMCA (512(f) specifically) designed to discourage takedowns where the copyright owner knowingly misrepresents either their ownership of the material or the infringing nature of the use.  The previous article covered 512(f) is a lot of detail, so I will only summarize how that provision works here.  Basically, the copyright holder is liable for damages if they knew or should have known that they either did not own the rights to the work at issue or that no infringement occurred.  The difficulty lies in proving that “knowing” standard, since fair use usually involves some rather complicated analysis.  In this case, the educational use of Lisztomania likely met the “knowing” standard.  Defendants invoke 512(f) so rarely that there is very little case law explaining it further.  I actually hoped for a court case simply to provide some case law, but the settlement reminding people at the DMCA does contain a provision that gives wrongful takedown victims some recourse.

Since today’s post is rather short, I figure I’ll also highlight a case to follow going into the upcoming Supreme Court session.  The Supreme Court is going to hear two cases dealing with whether individuals have a reasonable expectation of privacy in the contents of their cell phones after arrest (http://arstechnica.com/tech-policy/2014/01/supreme-court-will-hear-case-on-police-search-of-cell-phones/).  A third case, from the Texas Court of Criminal Appeals, recently held that individual’s do possess a reasonable expectation of privacy in the contents of their cell phones after they have been arrested (http://arstechnica.com/tech-policy/2014/02/texas-appeals-court-says-police-cant-search-your-phone-after-youre-jailed/).  The Texas Court’s majority held that a cell phone was similar to the “papers and effects” that the Fourth Amendment grants people a right of security.  The logic stems from electronic devices containing documents and information that would previously been confined to places already granted Fourth Amendment protection (such as filing cabinets, desks, and folders).  Whether five justices on the Supreme Court accept this argument should be interesting to see.  At any rate, this is a case to follow going forward.

Update (11:00 AM):  It appears that Phoenix, the band whose song is at the heart of the lawsuit, issued a statement supporting the fair use of their music: http://wearephoenix.tumblr.com/post/78111467465/we-support-fair-use-of-our-music-we-were-upset-to#disqus_thread.  The statement includes an embedded YouTube video of Lessig’s lecture as well.

Unintended Consequences: How the Visual Effects Industry Put Copyright to Use

Before I get to the topic at hand, let me first provide a short update.  King, the makers of Candy Crush, opted to withdraw their trademark request for the word candy.  They will still maintain a trademark over the word in Europe, but will not own a trademark over the word in the US.

Today’s entry details an interesting development in the realm of copyright law.  As anyone following the news the past few decades knows, many companies have sent a number of jobs to other countries.  Recently, movie studios began sending visual effects jobs to other countries.  This development resulted in a number of visual effects studios have gone out of business, including a some award winning ones.  As a result, a number of these visual effects artists have sought ways to combat what they view as a “bleeding” of their industry.

The Motion Picture Association of America (MPAA) recently filed a document with the International Trade Commission (ITC) regarding 3D printing.  In the document, the MPAA argued that digital goods should receive the same respect (and protections) as physical goods in international trade.  Some of these visual effects activists noticed the filing, and began arguing that this argument should also apply to post-production work.  This would render post-production work subject to many of the same protections that domestically produced movies receive, as well as Department of Commerce requirements to impose a punitive tax on companies that benefit from foreign subsidies that undercut a domestic industry.

The Pando article linked above does note a number of difficulties.  For one, the visual effects industry has no union and very little organization.  As a result, getting everyone on the same page to present a legal argument could be difficult.  The article also notes the political influence of the MPAA, particularly given their connections in the relevant political agencies (including the ITC).  There are some more basic problems with this argument though.  This argument that the digital versions of physical products deserve equal protection is still just an argument.  The ITC hasn’t adopted this legal argument and there is no indication that their administrative judges will find this argument to be valid. 

There is more to this, particularly given a review of the feasibility study.  It should be interesting to see how this develops in the future.

Short Net Neutrality Update

Today’s post is going to be rather short.  There is one particularly big piece of news today: Comcast’s deal with Netflix allowing for Netflix to have direct access to Comcast’s network (http://gizmodo.com/report-netflix-agrees-to-pay-comcast-for-access-to-bro-1529115565?rev=1393178465&utm_campaign=socialflow_gizmodo_facebook&utm_source=gizmodo_facebook&utm_medium=socialflow).  There’s even some talk that Verizon has a similar deal with Netflix in the works (http://www.cnbc.com/id/101439383).  I’d be remiss to not mention this deal, because this deal makes any future attempts at Net Neutrality unlikely to succeed.

Here is the nature of the deal.  Netflix originally contracted with other companies referred to as backbone providers) to provide the necessary bandwidth for their streaming service to the Internet Service Providers (ISPs, like Comcast and Verizon).  Now, Netflix will pay Comcast to receive direct access to Comcast’s network.

How this affects consumers is an open question (though it’s a fair guess that Netflix’s higher overhead costs will get passed to subscribers).  The FCC’s ability to impose some kind of net neutrality scheme, in contrast, suddenly appears to be much more limited.  The net neutrality debate revolved primarily around the idea of “tiered access”, or charging different entities different prices (often depending on bandwidth usage).  The ISPs argued that higher bandwidth services should pay more due to the expense of providing bandwidth, while net neutrality supporters worry that the practice could become discriminatory (with ISPs favoring certain content that aligns with their business or political interests) or create barriers to entry for new web services (there’s an interesting blog post on Google’s Public Policy blog about this debate: http://googlepublicpolicy.blogspot.com/search/label/Net%20Neutrality?updated-max=2007-08-30T16%3A58%3A00-04%3A00&max-results=20).  The issue, as pointed out in a Washington Post article from yesterday (http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/23/comcasts-deal-with-netflix-makes-network-neutrality-obsolete/) is that Netflix’s deal highly resembles the kinds of tiered pricing arrangements net neutrality regulations were supposed to prevent.  As the article points out, Netflix’s traffic will now arrive through its own pipe.  Other major service providers might seek the same deal, which essentially segregates their traffic from each other.  Previously, the traffic would arrive through one of the backbone providers as one giant chunk of traffic.  It is much easier to determine if everyone is getting the same benefit from that giant chunk of traffic.  It is harder to make that same determination when everyone has their own direct pipe.  Also, as the Post article points out, net neutrality regulations potentially require the FCC to wade into contractual agreements and pricing arrangements.  This could result in some messy regulation.

For what it’s worth, the FCC has proposed new net neutrality regulations (http://news.cnet.com/8301-13578_3-57619113-38/fcc-to-rewrite-net-neutrality-rules/).  So far, FCC Commissioner Tom Wheeler opted against common carrier regulations and will instead have the FCC re-write the Open Internet order.  Whether this new Open Internet Order has any appreciable effect on internet regulation is unclear.

Valve and Cheating, Plus An Update On The NSA Trademark Case

A few months ago, I wrote about a case involving a man making t-shirts parodying the NSA’s seal (https://nicoterablawg.wordpress.com/2013/11/06/security-agency-trademarks-and-fair-use/).  That case involved a graphic artist named Dan McCall making a t-shirt using the NSA’s seal and the NSA claiming trademark protection of that seal.  The NSA recently admitted that McCall was correct.  The shirt did represent a parody and thus received the appropriate First Amendment protection (http://arstechnica.com/tech-policy/2014/02/its-ok-to-parody-the-nsa/).

As many gamers know, there was a big debate that erupted this week over Valve’s use of VAC (Valve Anti-Cheating) services on their Steam software distribution platform.  Some users posted on Reddit that they’d discovered that VAC pulls a great deal of information from the user’s computer.  Namely, the user accused VAC of pulling the computer’s DNS cache entries (http://www.reddit.com/r/GlobalOffensive/comments/1y0kc1/vac_now_reads_all_the_domains_you_have_visited/).  The DNS (Domain Name System), to put it simply, assigns a website a name that the system can read and recognize.  Websites normally possess a number, called an Internet Protocol (IP) address, that operates as the address for a particular website.  Since people generally have trouble remembering long strings of numbers, DNS provides a much easier method of internet navigation.  For example, you can reach Google’s homepage through either http://www.google.com (DNS) or type in Google’s IP (http://74.125.224.72/).  The user’s computer stores the DNSs of sites the user has visited in the DNS cache.  As a result, Reddit users were accusing Valve’s VAC service of recording every website a user visited.

In response, Valve owner and CEO Gabe Newell posted that, while Steam did possess this capability, they invoked it rarely (http://www.reddit.com/r/gaming/comments/1y70ej/valve_vac_and_trust/).  Newell insisted that they only pulled the DNS cache if the user visited a website known to host for purchase cheating software (for example, a program called an aimbot that allows the user to get a headshot every single time in Counter-Strike).  VAC would check the computer’s server logs for contact with servers known to host cheating software, specifically looking for the software’s attempt to contact its host server.  If VAC discovered such a log entry, the service would then pull the DNS cache in order to verify the use of the cheating software and ban the player.  Newell stated that Valve has banned 570 users through this method.  Newell also stated that this method of tracking cheaters was no longer active, since Valve has to cycle its methods of catching cheaters frequently.

The legal issue here is relatively simple.  Valve can acquire consent to these actions through their terms of service.  The larger issue is whether they should conduct such actions.  Newell’s response stresses, correctly, the fine line that Valve must walk to make such a system work.  If there were no anti-cheating countermeasures in place, users would likely quit using steam out of frustration.  It is no fun to play a game when other users have an unwarranted advantage over others, but a company should maintain some respect for the user’s privacy.  Even better, a degree of openness with customers never hurts.  Newell responded quickly to redditors’ accusations of privacy violations and explained how and why his system pulled DNS cache information.  That acted as a much better method of assuaging firms than better contracting could provide.

Comcast-Time Warner, In Summary

First, I have something of a followup to my sampling article from Wednesday.  De La Soul is giving away their entire catalog today (http://www.okayplayer.com/news/de-la-soul-give-away-entire-catalog-for-free.html).  I felt this was appropriate to mention given the sample heavy nature of De La Soul’s music.  As the linked article (along with this one: http://www.idolator.com/237302/de-la-souls-digital-availability-grounded-by-sample-clearance-delays) indicates, De La Soul’s music is difficult to find in MP3 form.  A lot of the original sample clearance contracts only applied to the original CD release, so any online release requires a new contract with the appropriate parties.  De La Soul’s move to give away their entire catalog (for 24 hours at least) is an inventive way to keep interest in their music alive.

The other big news of the hour is Comcast’s offer to purchase Time Warner Cable for $45.2 billion.  If this merger happens (and there’s absolutely no guarantee that it will), it would provide Comcast with an incredible presence in the market.  Comcast, according to Free Press, would control “would give Comcast control of more than a third of the US pay-TV market and more than half of the US triple-play market for video, voice, and Internet service” (http://www.freepress.net/blog/2014/02/13/comcast-time-warner-cable-disaster).  Comcast stated that they will divest themselves of three million subscribers to bring themselves under that 30 percent threshold.

There really isn’t too much to say that hasn’t already been said.  The deal has a lot of issues, from a competition standpoint in particular.  One of the major worries is that Comcast will have a significant amount of leverage with content providers when negotiating with content providers.  As anyone who remembers CBS’s dispute with Time Warner Cable (http://www.hollywoodreporter.com/news/time-warner-cable-loses-306000-652131) that resulted in blacking out CBS owned channels for many subscribers in New York City, cable companies and content companies periodically clash over fee agreements and pricing.  This issue becomes even stickier when taking into account that Comcast is a content company as well, through their ownership of NBCUniversal.  The merger thus potentially gives Comcast significant leverage over their competition, which raises significant antitrust concerns.  An interesting side note to that concern, though, is that Comcast offered to abide by the recently overturned Open Internet Order as a condition for the FCC approving Comcast’s purchase of NBC.

How the FCC and FTC rule on this merger should be particularly fascinating as it moves forward.  This acquisition invites a great deal of scrutiny and criticism.

For everyone still snowed in, enjoy any time off and stay safe.