| Senate Finance Committee | House Ways and Means Trade Subcommittee |
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We can’t sit back and let this fake “anti-counterfeiting” agreement become law! If your legislator is listed above as a member of a committee with oversight over the U.S. Trade Representative, tell your lawmaker not to be fooled by this chicanery and demand that ACTA be limited to addressing international counterfeiting.
At last week’s “f8” Facebook developer conference, Mark Zuckerberg’s notable quotable was that Facebook is “building a Web where the default is social.” To our ears, that sounds like “a Web where exposure is the norm.” To achieve this, Facebook is rolling out technologies that essentially put Facebook features on other sites, while those sites share data back to Facebook.
Despite the voluminous buzz, many commentators have missed the most confusing announcement of all — new Facebook jargon. So, in the interests of helping users understand what’s going on, we’ve put together a rough Facebook-to-English translator. Think of it as a handy phrase-book that could help you navigate through the more common situations you’ll find yourself in.
Important to note: Facebook makes frequent changes to its features. We believe this post is to be accurate at the time of publishing, but please understand that Facebook may change some or all of these definitions beyond recognition before long. In addition, be aware that Facebook operates differently in Europe than it does in the USA, because European nations tend to have stronger privacy-protection laws.
Public information
This is the term Facebook uses to describe information that it wants to share with anybody and everybody. Knowing what information Facebook considers “public” at any given moment can be confusing, but it’s key to understanding what information Facebook may share with its business partners without seeking further permission.
Any time “public information” is referenced now, Facebook is talking about your: name, profile picture, current city, gender, networks, complete list of your friends, and your complete list of connections (formerly the list of pages that you were a “fan” of, but now including profile information like your hometown, education, work, activities, likes and interests, and, in some cases, your likes and recommendations from non-Facebook pages around the web).
Visibility
Facebook offers a number of controls over what information is “visible” on your profile. This determines what can be seen by someone who visits your profile page, but does not change whether the information is “public information.” As Facebook explains, “Keep in mind that Facebook Pages you connect to are public. You can control which friends are able to see connections listed on your profile, but you may still show up on Pages you’re connected to.” LIkewise, “While you do have the option to hide your Friend List from being visible on your profile, it will be available to applications you use and websites you connect with using Facebook.” Because Facebook deems this information “public,” it reserves the right to share that information with its business partners and third party websites, regardless of your visibility settings.
Pages
Facebook’s “Pages” are distinct from regular Facebook user profiles, and have generally been used to represent non-user entities like companies, non-profits, products, sports teams, musicians, etc. Community Pages are a new type of Page “dedicated to a topic or experience,” such as cooking. These will replace interests and activities.
Last December, Facebook made your Page affiliations available to everyone — non-Friends, advertisers, and data miners included — by classifying Pages as publicly available information.
Connections
You create a “Connection” to most of the things that you click a “Like button” for, and Facebook will treat those relationships as public information. If you Like a Page on Facebook, that creates a public connection. If you Like a movie or restaurant on a non-Facebook website (and if that site is using Facebook’s OpenGraph system), that creates a public connection to either the applicable Page on Facebook or the affiliated website.
Last week, Facebook announced a plan to transform most of the bits in your profile (including your hometown, education, work, activities, interests, and more) into connections, which are public information. If you refuse to make these items into a Connection, Facebook will remove all unlinked information.
Social plugins allow other websites to incorporate Facebook features and share data with Facebook. Examples of social plugins include “Like buttons” that share information back to your Facebook profile when clicked; an “Activity Feed” that will show content that you’ve Liked on that site to Facebook friends; and more.
From the Facebook FAQ: “If you click “Like” or make a comment using a social plugin, your activity will be published on Facebook and shown to your Facebook friends who see an Activity Feed or Recommendations plugin on the same site. The things you like will be displayed publicly on your profile.”
OpenGraph
OpenGraph is a new Facebook program that grants any website a way to create objects that can become “connections” on Facebook user profiles. At the moment, some sites appear to be using OpenGraph in conjunction with the Facebook “Like button” in order to publish information back to your Facebook profile’s list of Pages — information that everyone is able to see.
For example, the Internet Movie Database (IMDb) appears to be using OpenGraph in conjunction with the Like button social plugin. When you click to Like a movie on IMDb, that movie gets added to your list of Pages.
Instant Personalization
Instant Personalization is a pilot program that allows a few non-Facebook websites to obtain and make use your public Facebook information as soon as you visit those websites. For example, the music website Pandora receives access the list of music artists that you Liked on Facebook in order to pick songs to play (for users who are logged into Facebook and who have not opted out of instant personalization).
For users that have not opted out, Instant Personalization is instant data leakage. As soon as you visit the sites in the pilot program (Yelp, Pandora, and Microsoft Docs) the sites can access your name, your picture, your gender, your current location, your list of friends, all the Pages you have Liked — everything Facebook classifies as public information. Even if you opt out of Instant Personalization, there’s still data leakage if your friends use Instant Personalization websites — their activities can give away information about you, unless you block those applications individually.
Each year, Consumers International works with non-governmental organizations worldwide to create and publish the “Consumers International IP Watchlist,” a detailed survey of global copyright laws, focusing on national laws’ impact on access to knowledge, or A2K. A2K describes the fundamental freedom of individuals to communicate, learn, and exchange information — activities that are increasingly governed in part or in whole by copyright law.
The IP Watchlist was created to highlight how countries’ laws actually fare in facilitating A2K and to act as a counterbalance to the annual Special 301 Report produced by the US Trade Representative. You may recall that former Special 301 Reports have been driven by the concerns and wishes of U.S. copyright and patent holders, resulting in countries being named on the USTR Special 301 watchlist for having anything but the toughest copyright regimes, failing to adopt US DMCA-style technological protection measure laws, and for proposing to introduce balancing copyright exceptions similar to fair use in U.S. law. Unfortunately this has increased the pressure for countries to create unbalanced copyright laws which restrict citizens’ ability to use and share information.
By comparison, the IP Watchlist rates a set of 34 countries on whether or not their copyright laws are flexible enough to permit consumers’ access to knowledge. The 2010 IP Watch List highlights some countries’ good practices — having fair use or fair use-style exceptions to copyright, creating incentives for innovative business models, and providing mechanisms to permit the use of orphan works. But the report also identifies provisions that were found to impair citizens’ access to knowledge in various countries, including taxes or fines for private copying, three strikes Internet disconnection provisions, and overbroad legal prohibitions on circumventing copyright owners’ technological protection measures.
EFF was pleased to contribute the survey of US copyright law to the 2010 IP Watchlist. We hope that the comparative analysis of national copyright laws that is at the heart of the Consumers International IP Watchlist helps to inspire countries to craft copyright laws that serve the needs of consumers and all stakeholders in the knowledge economy, and supports the efforts of copyright advocates in countries across the world.
We’re not easily shocked by entertainment industry overreaching; unfortunately, it’s par for the course. But we were taken aback by the wish list the industry submitted in response to the Intellectual Property Enforcement Coordinator’s request for comments on the forthcoming “Joint Strategic Plan” for intellectual property enforcement. The comments submitted by various organizations provide a kind of window into how these organizations view both intellectual property and the public interest. For example, EFF and other public interest groups have asked the IPEC to take a balanced approach to intellectual property enforcement, paying close attention to the actual harm caused, the potential unexpected consequences of government intervention, and compelling countervailing priorities.
The joint comment filed by the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and others stands as a sharp contrast, mapping out a vision of the future where Big Media priorities are woven deep into the Internet, law enforcement, and educational institutions.
Consider the following, all taken from the entertainment industry’s submission to the IPEC.
There are several technologies and methods that can be used by network administrators and providers…these include [consumer] tools for managing copyright infringement from the home (based on tools used to protect consumers from viruses and malware).
In other words, the entertainment industry thinks consumers should voluntarily install software that constantly scans our computers and identifies (and perhaps deletes) files found to be “infringing.” It’s hard to believe the industry thinks savvy, security-conscious consumers would voluntarily do so. But those who remember the Sony BMG rootkit debacle know that the entertainment industry is all too willing to sacrifice consumers at the altar of copyright enforcement.
Network administrators and providers should be encouraged to implement those solutions that are available and reasonable to address infringement on their networks. [This suggestion is preceded by a list of filtering methods, like protocol filtering, fingerprint-based filtering, bandwidth throttling, etc.]
The entertainment industry loves widespread filtering as a “solution” to online copyright infringement — in fact, it has successfully persuaded Congress to push these technologies on institutions of higher-education.
But this “solution” is full of flaws. First, even the “best” automated copyright blocking systems fail to protect fair use. Worse, these techniques are unlikely to make any lasting dent on infringing behavior, but will instead just invite the use of more encryption and private “darknets” (or even just more hand-to-hand sharing of hard drives and burned DVDs). But perhaps the most pernicious effect may be that copyright protection measures can be trojan horses for consumer surveillance. In an age of warrantless wiretapping and national censorship, building more surveillance and inspection technologies into the heart of the Internet is an obviously bad idea. In the words of the Hollywood movie, “if you build it, they will come.”
Customs authorities should be encouraged to do more to educate the traveling public and entrants into the United States about these issues. In particular, points of entry into the United States are underused venues for educating the public about the threat to our economy (and to public safety) posed by counterfeit and pirate products. Customs forms should be amended to require the disclosure of pirate or counterfeit items being brought into the United States.
Does that iPod in your hand luggage contain copies of songs extracted from friends’ CDs? Is your computer storing movies ripped from DVD (handy for conserving battery life on long trips)? Was that book you bought overseas “licensed” for use in the United States? These are the kinds of questions the industry would like you to answer on your customs form when you cross borders or return home from abroad. What is more, this suggestion also raises the specter of something we’ve heard the entertainment industry suggest before: more searches and seizures of electronic goods at the border. Once border officials are empowered to search every electronic device for “pirated” content, digital privacy will all but disappear, at least for international travelers. From what we’ve learned about the fight over a de minimis border measures search exclusion in the latest leaked text, ACTA might just try to make this a reality.
The government should develop a process to identify those online sites that are most significantly engaged in conducting or facilitating the theft of intellectual property. Among other uses, this identification would be valuable in the interagency process that culminates in the annual Special 301 report, listing countries that fail to provide adequate and effective protection to U.S. intellectual property rights holders. Special 301 could provide a focus on those countries where companies engaged in systematic online theft of U.S. copyrighted materials are registered or operated, or where their sites are hosted. Targeting such companies and websites in the Special 301 report would put the countries involved on notice that dealing with such hotbeds of copyright theft will be an important topic of bilateral engagement with the U.S. in the year to come. (As noted above, while many of these sites are located outside the U.S., their ability to distribute pirate content in the U.S. depends on U.S.-based ISP communications facilities and services and U.S.-based server farms operated commercially by U.S.-based companies.)
Some background: the Special 301 process is a particularly unpleasant annual procedure by which the United States Trade Representative (USTR) pressures other countries to adopt tougher intellectual property laws and spend more for IP enforcement. In the Special 301 report, the USTR singles out particular countries for their “bad” intellectual property policies, placing them on a watch list, and threatening trade sanctions for those that deny “adequate and effective protection” for US IP rightsholders or restrict fair and equitable market access for US intellectual property.
Before this year, the US Trade Representative only sought input from the entertainment and pharmaceutical industries for these rankings, resulting in unbalanced assessment criteria. Countries have been listed for failing to sign on to controversial international treaties or for not mirroring certain parts of US law. For example, Chile was named for considering fair use-style exceptions to its copyright law; Canada was listed for requiring that its customs officers have a court order before seizing goods at the border; and Israel was highlighted for refusing to adopt DMCA-style anti-circumvention provisions after legislative debate concluded that anti-circumvention laws would have no effect on copyright infringement.
The creative communities’ proposal imagines that the US Trade Representative should become a glorified messenger for Big Media, using its resources to pressure countries that “harbor” websites and Internet services that facilitate copyright infringement. In other words, they believe that the USTR should put US IP rightsholders’ interests at the center of its foreign policy, ignoring other foreign policy goals such as regional security, and promoting innovation and competition.
The planned release of a blockbuster motion picture should be acknowledged as an event that attracts the focused efforts of copyright thieves, who will seek to obtain and distribute pre-release versions and/or to undermine legitimate release by unauthorized distribution through other channels. Enforcement agencies (notably within DOJ and DHS) should plan a similarly focused preventive and responsive strategy. An interagency task force should work with industry to coordinate and make advance plans to try to interdict these most damaging forms of copyright theft, and to react swiftly with enforcement actions where necessary.
This is perhaps the most revealing of the proposals: big Hollywood studios deputizing the FBI and Department of Homeland Security to provide taxpayer-supported muscle for summer blockbuster films. Jokes have been made about SWAT team raids on stereotypical file-sharers in college dorm rooms — but this entertainment industry request to “interdict…and to react swiftly with enforcement actions” brings that joke ridiculously close to reality.
Of course, these comments are just an entertainment industry wishlist, an exercise in asking for the moon. But they reveal a great deal about the entertainment industry’s vision of the 21st century: less privacy (with citizens actively participating in their own surveillance), a less-neutral Internet, and federal agents acting as paid muscle to protect profits of summer blockbusters.
Yesterday, EFF Senior Staff Attorney Kevin Bankston testified before Congress, urging that the federal wiretapping law be updated to protect Americans against secret video surveillance just as it protects against covert electronic eavesdropping.
The Subcommittee on Crime and Drugs of the U.S. Senate Judiciary Committee was prompted to hold the hearing, titled “Video Laptop Surveillance: Does Title III Need to Be Updated?”, in response to reports that school administrators in Pennsylvania secretly spied on students in their homes by remotely activating the webcams on school-issued laptops. “Title III” refers the federal privacy statute that regulates electronic eavesdropping and the wiretapping of telephone and Internet communications. Unfortunately, as Bankston and other witnesses explained at the hearing, Title III does not regulate video surveillance, even though it can be just as invasive as eavesdropping.
In his testimony, Bankston argued to Subcommittee Chairman Arlen Specter (D-PA) that the need to fill this glaring gap in the law has taken on new urgency with the rapid proliferation of web cams: “Any camera controlled by software on a computer that is connected to the Internet carries the risk that the camera will be remotely activated without the knowledge or consent of the user,” Bankston testified. “With millions upon millions of laptop web cams routinely being carried into the home and other private spaces, surreptitious video surveillance has become a newly pervasive threat,” a threat that the law must be updated to address.
Bankston urged Congress to amend the law to better protect Americans from secret video surveillance, by clarifying that the government has to get a search warrant based on probable cause before engaging in unconsented video surveillance of the home or any other private place, and by prohibiting such surveillance by anyone else, be it a stalker, a computer criminal, your employer or your school.
At the conclusion of the hearing, Senator Specter agreed that it was time to close this gap in the law and said that he intended to introduce legislation this year to provide new privacy protections against video spying.
We are a bookish crowd here at the Electronic Frontier Foundation, so we figured it might be interesting to share a list of some of our favorite books. Choosing categories was a contentious process, but we ultimately decided to split up the list into the following rough categories:
The top 3 in each category are standouts or classics, but every book in the list has inspired fresher, smarter considerations about technology, civil liberties, and what it means to be on the electronic frontier. Enjoy!
Last Friday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) outlined a proposal for immigration reform. At the top of their immigration reform agenda? A national, biometric identification card for all workers, citizen or immigrant. From the article:
We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card. Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information or tracking devices. The card would be a high-tech version of the Social Security card that citizens already have.
This proposal should grit the teeth and narrow the eyes of anyone who has carefully considered the dangers of a national, biometric-carrying identification card scheme. Like other national ID proposals, this one seems to naively assume that technology and federalization can provide an across-the-board “upgrade” to existing identification schemes, when in reality it spawns a beastly tangle of complex issues. On the CATO@Liberty blog, Jim Harper dissects the many reasons why the national biometric ID plan is “gratuitous and punitive.” EFF shares the view that the proposal is deeply problematic — unpacking each of the statements in the paragraph above reveals many pitfalls.
“We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card.” Unfortunately, “high-tech” and “fraud-proof” are far from synonymous. Technologies intended to keep information secure are regularly compromised — meaning that a permanent, national scheme will be breathtakingly expensive to develop and maintain securely. Moreover, any high-tech security would be rendered moot by the weakest link — the individuals who will be collecting data and issuing identification. Those individuals can make mistakes, and they may also allow and perpetuate fraud or identity theft. If, as the senators suggest, this card is to be a prerequisite to simply make a living, then there will be an extremely high demand for fraudulent documents, and “high-tech” itself won’t stop forged, stolen, or “creatively obtained” documents from being circulated.
“Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information.” The senators are wise to propose that no government database would house everyone’s information — no government database should. But we’re very skeptical that the government wouldn’t later find it to be overwhelmingly convenient to collect the information (perhaps even to aid enforcement of the immigration regime itself). Indeed, it’s hard to understand how the system would function properly without checking a large database (or set of databases) for matching a name to the biometric data. The Privacy Lives blog gives a simple example: imagine an fraudulent ID card with someone else’s biometric data, but your name. To prevent this from happening, there would probably need to be a database of some kind to check for validity.
Biometrics raise a host of issues, especially in the national ID context. As security expert Bruce Schneier has noted, “[Biometrics] don’t fail well. Passwords can be changed, but if someone copies your thumbprint, you’re out of luck: you can’t update your thumb. Passwords can be backed up, but if you alter your thumbprint in an accident, you’re stuck.”
Moreover, Schneier adds:
[B]iometrics are easy to steal. You leave your fingerprints everywhere you touch, your iris scan everywhere you look. Regularly, hackers have copied the prints of officials from objects they’ve touched, and posted them on the Internet. We haven’t yet had an example of a large biometric database being hacked into, but the possibility is there. Biometrics are unique identifiers, but they’re not secrets.
In any case, a federalized, mandatory identification scheme will be subject to mission creep from third parties. Because of the ID card’s proposed universality, it will likely be requested and required by airlines, insurance agencies, health care providers, mortgage lenders, credit card companies, and so forth. Those databases will become yet another high value target for hackers or again, unscrupulous individuals with valid access, and if biometric identification becomes the norm, the cost of losing control of your biometric identity information will probably be greater than today’s identity theft.
“The cards would not contain any private information, medical information or tracking devices.” It’s important that they’re recognizing that radio frequency identification chips (or RFIDs), are a disaster for holding data intended to be private or secure. But let’s be clear that a persistent identifier itself can be used for tracking. If third-party organizations wind up keeping track as we posit, then a simple subpoena or warrant could reveal when you got your job, when you signed up for a credit card, or when you started seeing a specialist physician. Simply put, the lack of a dedicated “tracking device” does not equate to a lack of tracking.
This proposal is particularly worrisome because the heated emotions around immigration reform might drown out rational considerations about the effectiveness and cost of a biometric national ID card, not to mention the dire affront to personal freedom presented by such a scheme. EFF will be keeping an eye out for more details, so stay tuned.
In February, we published “Digital Books and Your Rights,” a checklist for readers considering buying into the digital book marketplace. The folks behind the Ibis Reader ebook service have gone ahead and posted thoughtful answers to each question, inviting their users into an honest discussion about the features, policies, and practices around its software.
While we don’t agree with all of Ibis Reader’s answers, they deserve full marks for being proactive about confronting these emerging digital books issues, and for striving to be clear with its users and customers. They know what’s up — the modern gadget hound knows to look beneath the shiny surface and ask critical questions about how open a platform is and whether or not privacy is sufficiently prioritized and protected. Our “Digital Books and Your Rights” checklist helps guide users making that inquiry, and Ibis Reader is smart to approach current users and potential customers with openness.
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.
Remember what put the debate over net neutrality into high gear? In 2007, EFF and the Associated Press confirmed suspicions that Comcast was clandestinely blocking BitTorrent traffic. It was one of the first clear demonstrations that ISPs are technologically capable of interfering with your Internet connection, and that they may not even tell you about it. After receiving numerous complaints, the FCC in 2008 stepped in and threw the book at Comcast, requiring them to stop blocking BitTorrent. The Comcast-BitTorrent experience put net neutrality at the top of the FCC agenda.
Yet now that the FCC has formally issued draft net neutrality regulations, they have a huge copyright loophole in them — a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was “reasonable network management” intended to “prevent the unlawful transfer of content.”
You heard that right — under these conditions, the new proposed net neutrality regulations would allow the same practices that net neutrality was first invoked to prevent, even if these ISP practices end up inflicting collateral damage on perfectly lawful content and activities.
When we saw the loophole, we had to ask ourselves, “Is this real net neutrality?” And the answer was simply, “No.” The entertainment industry is already pressuring ISPs to become copyright cops. Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design.
If net neutrality regulations are to be taken seriously at all, then the loophole must be closed. Sign the petition to demand real net neutrality from the FCC.
Of all the bands experimenting with the Internet and its role in enriching their creativity and commerce, OK Go has become one of the canonical success stories, having produced two low-budget, immensely successful viral videos (“A Million Ways” and “Here It Goes Again” in 2006) that together drew more than 50 million views and broadened their fan base considerably. With their status as the de facto princes of the viral music video, imagine the fans’ surprise in seeing OK Go’s new video branded with this handy instruction to anyone interested in spreading the word: “Embedding disabled by request.”
In a revealing rant detailing the modern woes of a band under the thumb of a major label, OK Go singer Damian Kulash writes:
And, voilá: four years after we posted our first homemade videos to YouTube and they spread across the globe faster than swine flu, making our bassist’s glasses recognizable to 70-year-olds in Wichita and 5-year-olds in Seoul and eventually turning a tidy little profit for EMI, we’re – unbelievably – stuck in the position of arguing with our own label about the merits of having our videos be easily shared. It’s like the world has gone backwards.
In the letter, Kulash articulates a winding response to fans’ complaints about the inability to embed the OK Go video on their own sites, as well as complaints from some international users who simply aren’t allowed to view the video. His explanation contains threads that should be familiar to anyone paying attention to the music industry and its contortionate attempts to cope with the Internet. Labels are desperate for any opportunity to make money, and because they only make money when videos are viewed on YouTube (and not when embedded elsewhere), OK Go’s label is adamantly exerting controls to force users to view it on YouTube.
The flailing of stubborn major labels against anything associated with the Internet hurts plenty of regular people, but it’s particularly stinging to see them holding artists back — the very people whose creativity they exist to support. When Warner Music Group pulled the plug on their YouTube videos over a revenue spat, a significant body of Death Cab for Cutie’s videos hosted on the site and embedded elsewhere went dark as well — collateral damage in Warner’s crusade for a bigger piece of the pie. With drama like this, it’s no wonder that top artists like Trent Reznor, Radiohead, and other notables have made headlines for selling and distributing music sans label, and that the market for tools to help artists manage marketing and distribution independently (Topspin or Bandcamp, for example) is growing as well. These shifts are just the most up-to-date notes in a dirge for major label-artist relations that’s been sung for years.
At the end of the letter, Kulash provides the embed code for video sharing from Vimeo, then closes on a bum note, resigned to the limitations imposed by EMI:
So, for now, here’s the bottom line: EMI won’t let us let you embed our YouTube videos. It’s a decision that bums us out. We’ve argued with them a lot about it, but we also understand why they’re doing it. They’re aware that their rules make it harder for people to watch and share our videos, but, while our duty is to our music and our fans, theirs is to their shareholders, and they believe they’re doing the right thing.
So, the next time you see the music labels pressing for Internet-wide copyright filtering or three strikes laws in the name of protecting the artists, remember OK Go’s reaction to their label’s methods: “It’s like the world has gone backwards.”
(The Streisand Effect describes the phenomenon by which an attempt to suppress information results in faster, broader dissemination of that information. Roughly explained, attempted censorship — particularly by a famous or well-known entity — can flag the information as more interesting.)
Last October, we launched the Takedown Hall of Shame to highlight the most egregious attempts to silence speech online with bogus intellectual property complaints. Today, we’re inducting four more would-be censors into the pantheon of speech bullies. They are:
The antidote for speech you disagree with is more speech — not overreaching legal threats. Hopefully, we’ll see companies exercise more discretion and transparency when dealing with speech they dislike, instead of reaching for the nearest blunt legal instruments.
This holiday season, for every $10 you donate to EFF, you can receive one BookMooch point, worth one free book of your choice, from BookMooch founder and EFF board member John Buckman! Just join BookMooch and then email the receipt of your donation here to redeem your points. (You can find John Buckman’s official announcement on the Bookmooch blog.)
BookMooch is a community built around exchanging used books — it’s completely non-commercial and costs nothing to join or use. Members list books that they are willing to exchange, list books that they want to receive, and earn points based on their participation. You get one BookMooch point when you send someone else a book; you spend one BookMooch point when you “mooch” (receive) a book from another member. Take advantage of this promotion to get some free books while supporting EFF and the ongoing fight for digital civil liberties!
As 2009 draws to a close, we’re inching ever deeper into the corner that Congress painted us into by passing Real ID under the table in 2005. (Recall that Real ID is the failed, Bush-era attempt to turn state drivers licenses into national ID cards by forcing states to collect and store licensee data in databases, and refusing to accept non-compliant IDs for federal purposes, like boarding a plane or entering a federal building.)
The official deadline for states to comply with the Department of Homeland Security’s (DHS) final Real ID rule is December 31, 2009, and an estimated 36 states will not be in compliance by then, leading to some ambiguity for many citizens. For example, will residents of Montana be able to board planes in January 2010 with only a driver’s license (a state-supplied, technically non-compliant document) and without a passport (an identity document issued by the federal government)?
Past history strongly suggests that DHS will issue last-minute waivers to states that have not amped up their drivers licenses to adhere to Real ID. Early in 2008, states that actively opposed Real ID received waivers from DHS, nominally marking the states as “compliant” despite strongly-stated opposition to ever implementing Real ID.
But waiting in the wings is PASS ID, a bill that attempts to grease the wheels by offering money to the states to implement ID changes. Despite having the appearances of reform, PASS ID essentially echoes Real ID in threatening citizens’ personal privacy without actually justifying its impact on improving security. For this reason, PASS ID is not popular — privacy advocates refuse to support the bill because it still creates a national ID system. It still mandates the scanning and storage of applicants’ critical identity documents (birth certificates, visas, etc.), which will be stored in databases that will become leaky honeypots of sensitive personal data — prime targets for malicious identity thieves or otherwise accessible by individuals authorized to obtain documents from the database. And on the other side, short-sighted surveillance hawks are unhappy with the bill because they support the privacy violations architected into the provisions of the original Real ID Act.
As such, advocates of PASS ID are publicly wringing their hands over the deadline in order to encourage Congress to approve the PASS ID Act before the end of the year. But the fracas over health reform is suffocating any chance for meaningful debate about the merits of PASS ID before the Dec. 31st deadline.
A pragmatic analysis should show that Real ID is dead. To date, 24 states have enacted resolutions or binding legislation prohibiting participation in Real ID, and the varied, desperate efforts to reanimate it are misguided. Whether the states or the federal government signs the invoice, the cost ultimately falls to taxpayers, who should be troubled that neither Real ID nor PASS ID is likely to fulfill the stated goal of stopping terrorists from obtaining identity documents. (Just this week, noted security expert Bruce Schneier linked to a report about government investigators successfully using fake identity documents to obtain high-tech “e-passports,” which were then used to buy plane tickets, and board flights — the point being that a fancy, “secure” identity document doesn’t stop individuals from exploiting a weak bureaucracy.)
On the other hand, the resulting databases filled with scanned identity documents will create tantalizing targets for identity thieves and headaches for people whose digital documents are pilfered; and a national ID system will invite mission creep from the government as well as private entities like credit reporting agencies and advertisers. It’s high time for reason to replace the reflexive defense of a failed scheme. Congress should repeal Real ID for real and seek more inspired, protective solutions to identity document security.
Yesterday, the web was buzzing with commentary about Google CEO Eric Schmidt’s dangerous, dismissive response to concerns about search engine users’ privacy. When asked during an interview for CNBC’s recent “Inside the Mind of Google” special about whether users should be sharing information with Google as if it were a “trusted friend,” Schmidt responded, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”
Unfortunately, Schmidt’s statement makes it seem as if Google, a company that claims to care about privacy, is not even concerned enough to understand basic lessons about privacy and why it’s important on so many levels — from protection against shallow embarrassments to the preservation of freedom and human rights. In response to Schmidt, Security researcher Bruce Schneier referenced an eloquent piece he wrote in 2006 that makes the case that “[p]rivacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.” Schneier writes:
For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.
Gawker was quick to point out the personal hypocrisy of Schmidt’s dismissive stance, noting that for about a year, Schmidt blacklisted CNET reporters from Google after the tech news company published an article with information about his salary, neighborhood, hobbies, and political donations — all obtained from Google searches. Techdirt noted additionally that Schmidt’s statement is painfully similar to the tired adage of pro-surveillance advocates that incorrectly presume that privacy’s only function is to obscure lawbreaking: “If you’ve done nothing wrong, you’ve got nothing to worry about.”
In a talk about privacy given to the American Library Association, EFF Fellow Cory Doctorow highlights the error in logic that leads to short-sighted conceptions of privacy like Schmidt’s:
We have an unfortunate tendency to conflate personal and private with secret and we say, “Well, given that this information isn’t a secret, given that it’s known by other people, how can you say that it’s private?” And we can in fact say that there are a lot of things that are [not] in secret that are in private. Every one of us does something private and not secret when we go to the bathroom. Every one of us has parents who did at least one private thing that’s not a secret, otherwise we wouldn’t be here.
So this decision — this determination — over when and under what circumstances your personal information is divulged tracks very closely to how free and how much power you have in a society. When you look at really stratified societies, particularly the great totalitarian empires of the last century, the further up the ladder you go, the more raw power you wield, the more raw power you have over this disclosure of your personal information. And the further down the ladder you go, the less power you have.
The understanding that privacy is a key liberty informs EFF’s many privacy efforts, including to improve search engine practices and policies, uncover details about snooping on social networking sites, tighten up laws around behavioral tracking online, argue for better reader privacy, and more. Google, governments, and technologists need to understand more broadly that ignoring privacy protections in the innovations we incorporate into our lives not only invites invasions of our personal space and comfort, but opens the door to future abuses of power.
Senator Evan Bayh recently responded to a constituent’s concerns about the Anti-Counterfeiting Trade Agreement (ACTA). Sadly, Senator Bayh’s letter is troubling and frustrating. He echoes the USTR’s misleading conflation of “counterfeiting” and “copyright infringement,” doesn’t address the draconian Internet provisions, and, worst of all, fails to acknowledge the most egregious problem altogether — that ACTA is being negotiated in secret and being hidden from Congress and the public.
Let’s take a look at parts of Senator Bayh’s response in detail.
Senator Bayh: I support a balanced approach to international trade that ensures equal treatment for U.S. goods and services. In other words, I believe we must pursue policies that advance the economic well-being of America’s businesses and working families while holding our trading partners accountable.
Unfortunately, ACTA doesn’t squarely advance those objectives. It’s a mistake to characterize ACTA as a pure attempt to get “other countries” to do something beneficial for the US. ACTA will also have an impact stateside. Leaked documents indicate that ACTA may require Online Service Providers to adopt policies that undermine the level of protection they currently have in the U.S. against liability for things done by Internet users using their networks. And since ACTA intends to set new global norms, it is likely to increase Internet intermediary liability worldwide, damaging the future growth of the digital technology industry in the US and beyond at the behest of the entertainment industry.
And as if that wasn’t enough to cast the benefits of ACTA in doubt, leaked documents reveal that ACTA may require Online Service Providers to adopt “three strikes” policies that kick families off the Internet after being accused of copyright infringement, which satisfies only the misguided whims of Hollywood’s anti-Internet crusade.
Senator Bayh: In the face of expanding commerce, we cannot lose sight of our fundamental responsibility – protecting Americans from imports that pose significant health and safety risks. Intellectual property theft and counterfeiting represents an emerging threat to the health and safety of American consumers.
Let’s be absolutely clear about this: there is a significant difference between copyright infringement (like singing “Happy Birthday”), and counterfeiting (like manufacturing a knockoff car part and attempting to sell it as an original). Counterfeiting is about trademark infringement and/or patent infringement, and applies to physical goods. The copyright infringement (or “piracy”) provisions in ACTA are focused on digital creative works, which do not usually carry any risks for health and safety.
Contrary to Senator Bayh’s letter’s central premise, ACTA is concerned with far more than just “health and safety” policy considerations from counterfeit goods. Leaked provisions, the official summary released by the USTR, and other negotiating governments state that ACTA will deal with copyright infringement, and regulation of the global Internet. Senator Bayh’s letter seems to be focused on issues involving trademark and patents, but does not address the reports of draconian overreach on copyright issues that were raised by our members’ letters to him.
No one disputes that sub-standard counterfeit pharmaceutical products pose significant health and safety risks for citizens. But there are existing international IP enforcement laws that address the health and safety dangers posed by counterfeit goods, namely the Agreement on Trade Related Aspect of IP Agreement (TRIPS). It’s time for those who claim that we need ACTA to explain why TRIPS is not sufficient to address these issues, and how they will ensure that ACTA will not instead be used to seize life-saving drugs that are in transit to developing countries.
Senator Bayh: For these reasons, we must protect private innovation and public safety by addressing the shortcomings in global enforcement.
US copyright law embodies a careful balance between the exclusive rights of rightsholders and the interests of information users and technology companies that rely upon exceptions and limitations for research, freedom of expression, and legitimate business. If the goal of ACTA is to protect innovation, it should give equal consideration to all US industries – both the US entertainment industry and the US tech sector (which dwarfs it). To date, that doesn’t appear to be the case. It’s hardly believable to say that ACTA protects innovation when it seeks to amplify pressure against the Internet and technology industries in an effort to “protect” an industry that’s nearly a century old. (And let’s remember that with box office returns at record highs, it’s completely unclear that Hollywood is as completely damaged by online copyright infringement as it claims to be.)
It’s taken for granted that copyright encourages innovation, and so it’s easy to then infer that stronger copyright enforcement will encourage stronger innovation. But evidence is mounting that innovation (and particularly innovation at the edge) is actually driven by creativity, which in turn thrives within balanced IP regimes, with appropriate copyright exceptions and limitations like fair use that serve the needs of all information stakeholders.
We remain concerned that US negotiators are — with unprecedented secrecy — negotiating an agreement that is intended to set new international standards for intellectual property enforcement. These standards, largely being pushed by the US entertainment industry and luxury goods trademark owners, have the potential to harm citizens, stifle the spread of technology, and damage the global Internet.
Because ACTA is being negotiated as an Executive Agreement, it will not be subject to the Congressional oversight mechanisms that have applied to recent bilateral free trade agreements, even though it appears likely to have a far greater impact on the global knowledge economy than any of those.
Given that, we urge Senator Bayh and others to take the time to find out more about the contents and likely impact of ACTA, and to consult with all types of affected stakeholders, including the tech sector and those who use the Internet for education and to further social and economic development across borders, and not just those that have the best-paid lobbyists.
(For those interested in additional context, Senator Bayh’s complete response can be read here.)
In the UK, the Labour administration’s impatience to pass its “Digital Economy” agenda risks throwing balanced, deliberate reform of copyright law utterly out of the window. With no warning or consultation, the draft Digital Economy bill now includes a provision granting the Secretary of State — currently Lord Peter Mandelson — the power to make statutory instruments that can re-write Britain’s Copyright, Design and Patents Act with almost no Parliamentary debate.
Once the Digital Economy Bill is passed by Parliament, the Secretary of State could use sweeping powers to effect wide-ranging changes to the copyright system to swiftly meet the needs of one set of interest holders:
The Secretary of State may by order amend Part 1 [of the Copyright, Designs and Patents Act] or this Part for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur.
This would allow those who lobby for more draconian copyright enforcement the ability to bypass the normal democratic process, and grant them an effective veto on new Internet technologies that concerns them.
The only way to stop constant ratcheting up of punishments and restrictions on innovation is to ensure that such broad powers are never granted. Call your MP now, and tell him or her that no Secretary of State should be able to rewrite copyright law on a whim.
All MPs can be contacted via the House of Commons switchboard at:
+44 (0)20 7219 3000
“I’m calling to state my opposition to Lord Mandelson’s proposals to change our copyright law to benefit a few industries, and his attempts to make wide-ranging changes through secondary legislation. Please make it clear to the government that in its current form, its Digital Economy bill and any related statutory instruments affecting copyright law will damage the digital economy, not build it.” (Add your own comments.)
After your call, let the UK’s Open Rights Group know what your MP said here.
EFF Deeplinks: A Pirate Finder General for the UK?
We’re excited to share the news that our friends at the ACLU of Northern California have just launched their dotRights privacy campaign, an impressive effort to spread the word about how online services collect and share reams of personal information about internet users. The entertaining and informative dotRights introductory video summarizes the issue, covering how companies can collect data about you and share that information with data brokers and the government, and how the laws meant to protect the privacy of your internet activities are woefully outdated. The dotRights site also has more detailed content on a range of privacy issues related to webmail, search engines, social networks and more, while giving activists a variety of ways to take action on those issues.
Learn more from the ACLU of Northern California’s blog post about the launch, and visit dotrights.org to check out the campaign!
