Archive for the ‘EFF’ tag

Heavily Redacted: Warner Bros. Fights to Keep its Anti-Piracy Practices Secret

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Have you ever wondered how a massive Hollywood studio like Warner Bros. combats online piracy?  (A team of ninjas with computer science degrees, perhaps?)  Well, if Warner Bros. has their way, you won’t be finding out anytime soon.  Warner Brothers is fighting the Electronic Frontier Foundation’s (“EFF”) motion asking a Florida federal court to unseal documents from Disney  v. Hotfile (S.D. Fla., Jul. 8, 2011) that describe Warner Brothers’ anti-piracy practices.

The EFF is looking to unseal information about Warner Bros.’ system for sending takedown notices to websites following the Digital Millennium Copyright Act (“DMCA”) notice-and-takedown system.  In light of Congressional requests for input about the notice-and-takedown system established under the DMCA, the EFF feels that information about the practices of large copyright holders is critical for meaningful public dialogue about the DMCA.  In particular, the EFF hopes the documents in question will reveal which of Warner Bros. actions might have been in violation of 512(f) of the DMCA, which prohibits copyright holders from sending takedown notices absent a basis for believing the material is infringing.

Warner Bros., filing in opposition to EFF’s motion, asserts that if the court releases information about its DMCA enforcement practices to the public the information will enable those committing online piracy to “evade detection.”  In a declaration in support of Warner Bros.’ request to keep the documents sealed, Warner Bros.’ Senior Vice President of Anti-Piracy operations David Kaplan stated that those familiar with Warner Bros.’ piracy detection practices could “infringe without fear of detection.”  Warner further asserts that EFF’s claim that the records should be unsealed for the public interest are a “thinly-veiled effort to gain…tactical advantage in private litigation that EFF regularly brings against copyright owners.”

The decision regarding whether or not to unseal the documents is now in the hands of Judge Kathleen Williams, who must balance the respective interests of the EFF and Warner Bros.  Her decision could have serious implications for the future of litigation under the DMCA and, potentially, the future of the DMCA itself.  If she elects to keep the records sealed, the specifics of Warner Bros. anti-piracy practices under the DMCA will remain private.  But if you still want to know the details, consider the saying “If you can’t beat them, join them.”

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March 29th, 2014 at 11:04 am

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On the Proposed Exemptions to the DMCA’s Access Control Provisions

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On February 10, 2012, the U.S. Copyright Office will stop accepting public comment on proposed administrative exemptions to the Digital Millennium Copyright Act’s “access control” provisions. Fresh from their SOPA and PIPA victories, organizations such as the Electronic Frontier Foundation are pushing activists to flood the U.S. Copyright Office with comments supporting the renewal and expansion of current exemptions. Regardless of the outcome of this campaign, it is clear that the exemptions currently in place will change.

First, some background. According to Section 1201(a)(1)(A) of the Digital Millennium Copyright Act, individuals may not “circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act].” This was one of the key provisions of the DMCA (along with the Safe Harbor provisions of 17 U.S.C. § 512) and essentially makes it a crime to hack software or hardware designed to protect copyrighted material. Concerned that the law would weaken the fair use doctrine by criminalizing circumvention even when the individual plans to engage in non-infringing uses, Congress required the Librarian of Congress to issue specific exemptions for certain classes of works every three years. Such exemption rules were issued in 2000, 2003, 2006, and 2010. Although the rules scheduled to be issued in 2009 were delayed for a year, the Copyright Office plans to get back on schedule by issuing new rules early — in October of this year.

Of the six classes of works exempted in 2010, only four have been proposed for renewal this year. This virtually ensures that two prior exempted classes will expire. The first expiring class consists of “[c]omputer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.” This exemption has been in place since the first set of rules in 2000, which makes its absence from the current proposed list rather surprising. The reason for its absence is unclear, but it may simply be the case that there are so few individuals and companies using outdated dongle-reliant software that the exemption is no longer needed.

The other expiring class of works concerns “[v]ideo games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities.” According to Nimmer on Copyright § 12A.03, this exemption was first implemented in 2010 as a response to vulnerabilities caused by Macrovision’s SafeDisc technology. Since this exemption was probably unnecessary given the DMCA’s safe harbor exemption for encryption research (§ 1201(g)), it is unsurprising that it has not been proposed again.

Of the four classes proposed for renewal, only one will likely remain unchanged. This class covers literary works distributed in ebook format, where access control technology prevents the use of read-aloud functionality or the use of specialized screen readers. This exemption has been proposed by the American Council for the Blind and the American Foundation for the Blind, and will likely be renewed without much controversy.

For the other three classes, EFF and others are proposing that they be renewed, but with changes to reflect advances in technology and consumer use. For example, current rules exempt the use of DeCSS and other software to bypass the Content Scrambling System on DVDs. This exemption only applies when the circumvention is conducted for educational purposes, for documentary filmmaking, and for noncommercial videos. EFF and the University of Michigan Library would like to renew this exemption, but EFF has proposed expanding it by including audiovisual works acquired via online distribution systems (such as Netflix streaming or Amazon Instant Video). This expansion would likely be opposed by the film industry, which resisted the exemption for DVDs.

EFF has proposed expanding the remaining two classes to reflect the rise of tablet computers, but they will undoubtedly face some resistance. The exemptions for unlocking (whereby computer applications circumvent technology limiting a device to one particular wireless telecommunications network) and jailbreaking (which allows an individual to install third-party software on a device) currently apply only to mobile phones. Every proposed renewal of these rules would extend the exemption to other wireless devices such as tablets. It is hard to argue than an iPhone is really all that different from an iPad, so it will be interesting to see whether the Librarian of Congress agrees to widen the class of devices subject to the exemption.

Although there initially appear to be few practical arguments for distinguishing phones from tablets in this context, it would create problems for the Copyright Office if it treated them the same. If computer programs designed to jailbreak the iPad and other tablet computers are allowed, then why not allow–as EFF has proposed–the jailbreaking of video game consoles such as the Xbox 360 and the Playstation 3? They are all essentially limited-purpose computers that allow individuals to play games, watch movies and access the internet–albeit tablets have their screen built-in while gaming consoles attach to a television. Furthermore, if gaming consoles can be jailbroken, then why not DVRs such as the TiVo? There is no doubt that Sony, Microsoft, and cable companies would oppose subjecting their devices to such exemptions, just as Apple Computer opposed the current exemptions. Yet the same fair use rationale that justified the current exemptions relating to mobile phones would seem to apply to other devices. Ultimately the Librarian of Congress–with the input of the public–will have to decide where to draw the line.

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February 1st, 2012 at 4:43 pm

FTC and Facebook Close to Privacy Settlement

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The Wall Street Journal, which first reported  the impending settlement, is reporting that Facebook and the Federal Trade Commission are close to a settlement over alleged deceptive practices with respect to several Facebook features, including its privacy settings.  Under the settlement agreement, Facebook will be required to make all future privacy changes “opt-in,” requiring Facebook to obtain its users’ express consent before making information that’s already on the site available to a wider audience than previously intended.  The settlement wont explicitly dictate how Facebook must obtain user consent for new features in the future, but it will require Facebook to agree to independent privacy audits for the next 20 years.

This settlement is by no means unprecedented territory.  In March 2011, the FTC imposed similar conditions in a settlement with Google over Google’s rollout of its “Buzz” Social Network.  In June 2010, the FTC also imposed similar conditions for privacy issues on Twitter.  Jeff Chester, executive director of the Center for Digital Democracy, says that this is all part of a balancing act Facebook must do in order to settle the privacy complaints before its IPO.  The people briefed on the settlement, who spoke on condition of anonymity because the FTC commissioners have not yet approved the settlement, said that although a settlement is close, it was unclear how long it would take to complete the deal.

Despite Facebook’s popularity, with more than 800 million active users, the company’s privacy woes go back several years.  The settlement addresses issues raised in several complaints the FTC has received, including from groups like the Electronic Privacy Information Center (EPIC) and Electronic Frontier Foundation (EFF).  The settlement also focuses directly on privacy changes that Facebook made in December of 2009.  In December, critics argued that Facebook, under the guise of simplifying privacy settings and increasing awareness of Facebook’s privacy setting controls, exposed information that could previously be made private by its users, including profile photos, gender, friend lists and current city. Facebook also removed the ability to opt out of some features.  The problem that many users and privacy advocates had with Facebook’s changes was the fact that some of Facebook’s recommended changes urged users “to share everything with everyone—pretty much the polar opposite of what most people would want to do.”  After the public outcry prompted by the company’s December 2009 privacy changes, Facebook in May 2010 decided to limit the amount of information users were required to make public, and restored the ability to opt out of certain tools.

There are some that argue that privacy and social networks are inherently incompatible, that social networks are designed to share information with others.  So before you post that comment about how much you hate your job or how obnoxious your boss is, perhaps you should think about who that message might be shared with.  And then there are others who argue that the settlement, although a step forward for the privacy rights of Facebook’s users, does not do enough to secure the long term privacy rights of the company’s users.  As for Mark Zuckerberg, the Facebook co-creator and CEO is banking on society’s propensity to willingly share information online about every aspect of our lives.  In fact, during Zuckerberg’s 2011 keynote speech at Facebook’s yearly conference, F8, Zuckerberg introduced several new features planned for Facebook, such as Timeline, meant to facilitate the exponential expansion of shared information.  One user, in response to the new features, tweeted the following message to the tune of “Every Breath You Take” from the Police:  “Every single day Every word you say Every game you play Every night you stay I’ll be watching you.”

So, where do you stand?

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