Tomorrow afternoon, legislators from the House Committee on Oversight and Government Reform will be holding a hearing on the topic of "Public Access to Federally-Funded Research." The hearing will be a perfect opportunity for key representatives to look into supporting public access policies — various requirements that scientific research funded by the federal government be made available on the Internet to the tax-paying public. EFF wrote about the benefits of public access policies earlier this year when the Office of Science and Technology Policy asked for input.
Tomorrow, members of the committee will no doubt hear about the excellent Federal Research Public Access Act, (FRPAA) a bill that would require a great deal of research funded by government agencies to be made publicly available through a digital database no later than six months after publication. The law is modeled after the National Institute of Health's Public Access policy, which on its own has granted millions of people access to critical, up-to-date medical research since it was implemented in 2008.
Public access policies essentially "close the loop" on tail end of the cycle of research funded by the government. Now, the public pays for scientific research through taxes, but in most cases, that same taxpayer-funded innovation and discovery gets locked up in journals, accessible only through expensive per-article fees or massively expensive institutional licenses. With the FRPAA, academic journals still get a critical window of time to be the first to publish important findings, but shortly thereafter, the public gets unprecedented access to the knowledge that they paid for.
You can catch the webcast of the hearing tomorrow at 2pm EDT (11am PDT) or attend the hearing in person if you're in Washington, D.C. Stay tuned to EFF for future updates on how to support the Federal Research Public Access Act and other public access efforts!
Read more of this story at Slashdot.
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of nonprofit groups have asked a federal appeals court to protect the "safe harbor" rules for online video service providers that encourage free expression and innovation on the Internet.
In an amicus brief filed Friday in UMG v. Veoh, EFF told the U.S. Court of Appeals for the 9th Circuit that Universal Music Group's (UMG's) effort to hold online video service Veoh responsible for infringing content uploaded by a minority of its users would thwart federal law and Congress's intent to stimulate electronic commerce and free speech.
"By creating a clear path for innovators like Veoh to limit their liability for the copyright violations of their users, the statutory safe harbors helped foster the innovation environment that has made YouTube, Flickr, eBay, Blogger, and myriad other hosting-based services possible," said EFF Senior Staff Attorney Corynne McSherry. "UMG is trying to turn back the clock and reinstate a climate of legal uncertainty that would harm new online businesses and the free expression they foster."
The safe harbors are part of the Digital Millennium Copyright Act (DMCA) and give sites immunity from monetary damages if they observe the DMCA's "notice and takedown" procedures for potentially infringing content and comply with other legal requirements. In a lawsuit first filed in 2007, UMG argued that the safe harbors don't apply to any service that "displays" or "distributes" copyrighted material, rather than simply "storing" it. Last year, a federal district court rejected that argument. UMG appealed.
"The safe harbors have proven to be a huge success in encouraging the growth of innovative platforms for free expression, hosting vibrant amateur creativity," said McSherry. "But under UMG's vision for the Internet, we'd get something a lot more like television, where nothing is seen until it's approved by an army of lawyers. That's why we're asking the appeals court to affirm the lower court's ruling."
Joining EFF in the amicus brief are the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, the Center for Democracy and Technology, the Computer and Communications Industry Association, the Internet Archive, NetCoalition, and Public Knowledge.
For the full amicus brief: http://www.eff.org/files/filenode/umg_v_veoh/UMGvVeohAmicusBrief072310.p...
For more on this case: http://www.eff.org/cases/umg-v-veoh
Contacts:
Corynne McSherry Senior Staff Attorney Electronic Frontier Foundation corynne@eff.org
Every three years, the Library of Congress has the thankless task of listening to people complain about the Digital Millennium Copyright Act. The DMCA forbade most attempts to bypass the digital locks on things like DVDs, music, and computer software, but it also gave the Library the ability to wave its magical copyright wand and make certain DRM cracks legal for three years at a time.
This time, the Library went (comparatively) nuts, allowing widespread bypassing of the CSS encryption on DVDs, declaring iPhone jailbreaking to be "fair use," and letting consumers crack their legally purchased e-books in order to have them read aloud by computers.
Read the comments on this post
We've always considered jailbreaking well within the bounds of legal iPhone use, but if you've ever been concerned that jailbreaking your iPhone wasn't actually legit, the New York Times reports that The Library of Congress' Copyright Office has officially deemed jailbreaking exempt "from a 1998 federal law that prohibits people from bypassing technical measures that companies put on their products to prevent unauthorized uses."
Apple can still say jailbreaking voids your warranty, but you're not doing anything illegal by jailbreaking your phone and installing apps not approved by Apple. Other good news: Unlocking cellphones (to use your phone with another carrier) was deemed legal in this ruling, as was circumventing DVD DRM to use the video for educational purposes, documentary film-making, and non-commercial videos. Check out a more in-depth analysis of the ruling over at Ars Technica. [NYT]
So this ruling is pretty interesting news, as it constitutes a circuit split with pretty much the rest of the nation's courts, which is often a precursor to a Supreme Court challenge. What's more, the defendants here are General Electric, not hackers in black t-shirts or sketchy offshore Xbox-modchip vendors (theoretically the law shouldn't care if the defendant is a hobo or a billionaire, but in practice, billionaires usually get better precedents, and not just because they can afford better lawyers).
It's up to the plaintiff, MGE, to appeal to the Supremes, but even if they don't, it's only a matter of time until there are new cases in the Fifth Circuit (or other circuits that follow its lead) that lead to highest court handing down some new law on this. Let's hope they see the sense of Judge Garza: "Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act's) anti-circumvention provision."
Court Backs Dismissal of Digital Copyright Claim (via /.)
San Francisco - The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities.
"By granting all of EFF's applications, the Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," said Jennifer Granick, EFF's Civil Liberties Director. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach."
The exemptions were granted as part of a statutorily prescribed rulemaking process, conducted every three years to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions take unprecedented new strides towards protecting more consumers and artists from its extensive reach.
The first of EFF's three successful requests clarifies the legality of cell phone "jailbreaking" — software modifications that liberate iPhones and other handsets to run applications from sources other than those approved by the phone maker. More than a million iPhone owners are said to have "jailbroken" their handsets in order to change wireless providers or use applications obtained from sources other than Apple's own iTunes "App Store," and many more have expressed a desire to do so. But the threat of DMCA liability had previously endangered these customers and alternate applications stores.
In its reasoning in favor of EFF's jailbreaking exemption, the Copyright Office rejected Apple's claim that copyright law prevents people from installing unapproved programs on iPhones: "When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."
"Copyright law has long held that making programs interoperable is fair use," confirmed Corynne McSherry, EFF's Senior Staff Attorney. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability."
EFF also won a groundbreaking new protection for video remix artists currently thriving on Internet sites like YouTube. The new rule holds that amateur creators do not violate the DMCA when they use short excerpts from DVDs in order to create new, noncommercial works for purposes of criticism or comment if they believe that circumvention is necessary to fulfill that purpose. Hollywood has historically taken the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.
"Noncommercial videos are a powerful art form online, and many use short clips from popular movies. Finally the creative people that make those videos won't have to worry that they are breaking the law in the process, even though their works are clearly fair uses. That benefits everyone — from the artists themselves to those of us who enjoy watching the amazing works they create," added McSherry.
On EFF's request, the Librarian of Congress renewed a 2006 rule exempting cell phone unlocking so handsets can be used with other telecommunications carriers. Cell phone unlockers have been successfully sued under the DMCA, even though there is no copyright infringement involved in the unlocking. Digital locks on cell phones make it harder to resell, reuse, or recycle the handset, prompting EFF to ask for renewal of this rule on behalf of our clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009 rule has been modified so that it only applies to used mobile phones, not new ones.
"The Copyright Office recognizes that the primary purpose of the locks on cell phones is to bind customers to their existing networks, rather than to protect copyrights," said Granick. "The Copyright Office agrees with EFF that the DMCA shouldn't be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers. The DMCA also shouldn't be used to interfere with recyclers who want to extend the useful life of a handset."
Along with the exemptions that EFF championed, several other DMCA exemptions were expanded, granted or narrowed including one for documentary filmmakers and college-level educators, as well as some for security researchers.
For the full rulemaking order: https://www.eff.org/files/filenode/dmca_2009/RM-2008-8.pdf
For more on the DMCA rulemaking: http://www.eff.org/issues/dmca-rulemaking
Jennifer Stisa Granick Civil Liberties Director Electronic Frontier Foundation jennifer@eff.org
While Apple may oppose the idea, the federal government announced today that hacking your iPhone to accept third party software not approved or sold by Apple isn't a violation of the company's copyright.
Additionally, the Library of Congress' Copyright Office said it's not a copyright violation to tweak your phone so it works on a compatible network.
You might remember that Apple petitioned the Library of Congress in 2009 in the hopes of achieving a very different result. Then, the company not only wanted jailbreaking declared a copyright violation, but also that violators be penalized $2,500 and up to 5 years in jail.
According to the AP, other exemptions handed down by the Copyright Office today include:
*Allowing people to break technical protections on video games to investigate or correct security flaws.
*Allowing college professors, film students and documentary filmmakers to break copy-protection measures on DVDs so they can embed clips for educational purposes, criticism, commentary and noncommercial videos.
New Gov't Rules Allow Unapproved iPhone Apps [ABC News]
These are major blows against the tradition in US law of protecting DRM, even when DRM wasn't upholding copyright. For example, Apple argued in its Copyright Office filing that it should be illegal under copyright law to install iPhone software unless Apple had approved and supplied it (akin to the principle that you should only be allowed company-approved bread in your toaster, or Folgers-approved milk in your instant coffee).
I'm not clear on whether these rulings now make it legal to traffick in circumvention tools that can accomplish this trick: if so, it would mean that you could sell DRM-ripping software in stores, or open a fix-it shop that jailbroke iPhones so that they could access unapproved software from third-party suppliers (including online stores that competed with Apple's App Store).
In any event, major kudos to EFF for an enormous win. I've always maintained that the biggest problem with DRM is the special status the law affords it: prior to 1998's Digital Millennium Copyright Act, a company that wanted to control how you used your purchases had to devote serious, ongoing effort to stopping the companies that sprang up to undo their locks; consequently, the market was able to drive DRM into the dust quickly, as companies abandoned strategies that squandered profits to lock down products. But after DRM got special treatment under the law, companies could merely slap on the thinnest veneer of DRM (the iPad's DRM was broken in less than a day!) and count on a public subsidy to defend it, through the courts and the law.
This was pure moral hazard, an invitation to the world's corporate bullies to invent "business models" based on stopping you from fully enjoying your property unless you paid to "unlock" every feature and morsel of value latent in it. Like a fridge that you have feed quarters into if you want to chill anything except dairy products, or a shower that charges you extra to rinse off the dog. Companies could create these ridiculous businesses and count on the government to police them, externalizing the cost of their extraordinary chutzpah to the very customers they were inflicting it upon!
Ironicially, just as the US government is starting to reconsider this wisdom of this approach, other governments are being arm-twisted by the US trade representative into adopting it -- for example, Canada's pending Bill C32, a copyright law that was practically ghost-written by the American entertainment lobby and delivered after the Prime Minister's office handed down the edict to "Make the Americans happy."
EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers
Court proceedings are supposed to be public. When they are public and easily accessible, citizens know the law and the courts are kept accountable. These are the principles that underpin RECAP, our project to help liberate federal court records from behind a pay-wall.
However, appropriate restrictions on public disclosure are equally critical to democracy-enhancing information management by the judiciary. Without protections on personal data, trade secrets, the addresses of cooperating witnesses, or other harmful information the courts would become a frightening place for many citizens in need of justice. Peter Winn has described this challenge in detail.
Thus, somewhat counter-intuitively, it is important to restrict some legal information in order to set the rest free. That is why our courts have a strong legacy of sealing cases when, on balance, their disclosure would do more harm to justice than good. When the risks don't require the entire case to be sealed, portions of documents can be redacted. Federal Rule of Civil Procedure 5.2 and Federal Rule of Bankruptcy Procedure 9037 define these instances.
But what happens when mistakes are made or negligence occurs? This has been a largely unexplored area to date. In a 2005 bankruptcy case in the US District of South Carolina, Green Tree Servicing included the debtors' social security numbers in a public filing. The document was made available via the courts' electronic public access system (PACER) for viewing by anyone who was willing to pay the fee. The debtors filed suit in 2008 against Green Tree for disclosing their personal information counter to the rules I mentioned above, as well as the Gramm-Leach-Bliley Act, and other provisions. This was to be an interesting case, but (unfortunately for scholars and perhaps fortunately for the parties) they settled.
However, this was not the end of Green Tree's entanglement with these provisions. In 2009 they were servicing another pair of debtors, and they likewise included their social security numbers in the filing. The debtors filed suit against Green Tree under similar reasoning. This time, the parties didn't settle. In its opinion, the US Bankruptcy Court for the Southern District of Indiana dismissed all claims that were based on a private right of action against Green Tree, but left open the possibility that a contempt of court claim could prevail:
The Debtors have pled sufficient facts to state a claim for contempt under §105 for Greentree's failure to comply with Rule 9037. The act of limiting access to [the document containing SSNs] may be a sufficient remedy under Rule 9037, and a finding of contempt would require that Greentree was aware of its violation of Rule 9037. [...] Greentree has "inadvertently" failed to redact social security numbers on proofs of claim forms in at least one other case in which the debtors alleged a claim for contempt. See, In re Petty, No. 08-34375 HCD (Bankr. N. D. Ind. September 21, 2009). Whether the failure to redact here was coincidence or something else is not for the court to decide at this juncture. Nonetheless, the Debtors have pled sufficient facts to establish their claim for contempt under §105(a) due to Greentree's failure to comply with Rule 9037 and thus, that count survives Greentree's motion to dismiss and will proceed to trial. All other counts shall be dismissed.
The outcome appears to hinge largely on the "willfulness" of Green Tree. Given the 2005 South Carolina case, it seems evident that Green Tree should have been quite aware of the federal rules of procedure regarding redaction. It will interesting to see how the case turns out.
In the context of these recent cases, the 4th Circuit issued a decision yesterday on a related matter. In Ostergren v. Cuccinelli, the court ruled that a third-party who downloaded public records ("land records") from government-provided web sites would not be liable for damages when republishing those records online -- even if that third-party knew that the records contained private information such as social security numbers.
The facts of the case are quite interesting. Betty Ostergren, a pro-privacy advocate, had for many years tried to get the State of Virginia to implement and then to improve its automatic redaction technology for these records. Virginia was making some effort to do so, but evidently the various counties were not working as fast as she would like, leaving many documents unredacted. Indeed, the original legislation setting the redaction system into motion would have required the task to have been completed by July 1, 2010, but it didn't go into effect because the General Assembly failed to appropriate the necessary funds. Ostergren decided that the only way to motivate the necessary attentiveness was to begin publishing land records with unredacted SSNs on her own web site. For maximum effect, she chose land records from known public officials.
Virginia enacted a statute designed to stop this type of behavior, and Virginia filed suit under that statute. The Electronic Privacy Information Center filed an amicus brief in support of Ostergren. The 4th Circuit delivered a double-whammy to Virginia: not only did it uphold the district court's ruling that Ostergren's site warranted First Amendment protection, it ruled that the protection should extend even further than the district court had ruled. This interpretation was made even easier for the court given the fact that she was posting the materials for the explicit purpose of drawing attention to the problem -- it was disclosure, critique, and commentary via simple transparency. As the court noted:
Under Cox Broadcasting and its progeny, the First Amendment does not allow Virginia to punish Ostergren for posting its land records online without redacting SSNs when numerous clerks are doing precisely that.19 19 For the same reason, Virginia could not punish Ostergren for publishing a SSN-containing land record that had accidentally been overlooked during its imperfect redaction process—having a one to five percent error rate—unless Virginia had first corrected that error. Even then, we leave open whether under such circumstances the Due Process Clause would not preclude Virginia from enforcing section 59.1-443.2 without first giving Ostergren adequate notice that the error had been corrected.
Under Cox Broadcasting and its progeny, the First Amendment does not allow Virginia to punish Ostergren for posting its land records online without redacting SSNs when numerous clerks are doing precisely that.19
19 For the same reason, Virginia could not punish Ostergren for publishing a SSN-containing land record that had accidentally been overlooked during its imperfect redaction process—having a one to five percent error rate—unless Virginia had first corrected that error. Even then, we leave open whether under such circumstances the Due Process Clause would not preclude Virginia from enforcing section 59.1-443.2 without first giving Ostergren adequate notice that the error had been corrected.
Thus, we have an intriguing reversal of the principle I set out above (that it is important to restrict some legal information in order to set the rest free). In this case, it was important to (hopefully temporarily) make more visible the very type of information that ultimately needed to be restricted.
We are delighted to announce the CITP visiting scholars, practitioners, and collaborators for the 2010-2011 academic year. The diverse group of leading thinkers represents CITP's highly interdisciplinary interests. We are looking forward to their work at the center, and welcome them to the family. The short list is below, but you can see more description on the announcement page.
I notice that the article has in the last 24 hours been amended to identify some sections as being written by Herman Miller, which were previously not identified as such. Interestingly, you appear to be claiming that the current version is the original, something which is easily disproven via Google Cache. Are these the only sections of the article not written by you personally? Can you confirm, for example, that the following passage is your own work? "Designed by Bill Stumpf (who pioneered the Aeron Chair) and Jeff Weber, the Herman Miller Embody chair goes a step beyond being merely "heath-neutral". Over time, it can actually improve the health of the person sitting in it. Scientific studies have shown that Embody users can experience better circulation, reduced resting heart rates, and less tissue damage around the sitting muscles. Embody promotes natural alignment in the spine, relieving stress across the entire back no matter how you twist and turn." If so, can you provide links to these "scientific studies", since presumably you wouldn't have cited them if you didn't read them yourself?