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How the Digital Millennium Copyright Act punishes people with disabilities

Blake E. Reid's "The Digital Millennium Copyright Act Is Even Worse Than You Think" is a potted history of the ways that the US Digital Millennium Copyright Act (DMCA) has confounded the efforts of disability-rights groups to make media more accessible to people with various disabilities. The Copyright Office holds hearings every three years to establish temporary exemptions to the DMCA, but this has been totally inadequate as a way of dealing with this problem:

I’m a teaching fellow and staff attorney at Georgetown Law’s Institute for Public Representation clinic, where I work on media and accessibility issues. In 2011, my students and I filed a new exemption request on behalf of the nonprofit TDI (which advocates for equal media access for people who are deaf or hard of hearing) to allow researchers to develop advanced closed captioning and video description features to help make video programming more accessible—development hindered by the DMCA. (Gallaudet University and the Participatory Culture Foundation also signed the petition.) Crowdsourcing, customized user interfaces, error correction, and other innovations could help realize the goal of equal access to video programming on the Internet—a goal enshrined by Congress and President Obama in the 21st Century Communications and Video Accessibility Act of 2010.

But our proposal faced opposition from a coalition of copyright lobbyists who insisted, for example, that errors in closed captions were a “mere inconvenience” to people with disabilities and that developing accessibility features might even constitute copyright infringement. In the end, the librarian issued an exemption, but it was so riddled with caveats that it was difficult to identify precisely what accessibility research it was intended to enable, if any.

We also proposed a general exemption for accessibility technology, urging the librarian to take action in light of the widespread and demonstrated negative impact of the DMCA on the ability for people with disabilities to experience copyrighted works on equal terms. The Copyright Office did not even solicit comment on the proposal, and the librarian effectively ignored it.

Requiring nonprofit disability groups to ask permission from the government every three years and navigate a complex legal minefield to implement urgently needed accessibility technology is not compatible with progressive, conservative, or libertarian values; the goal of equal access for people with disabilities; or common sense. Even the librarian admitted in 2010 that the DMCA exemption process “is at best ill-suited to address the larger challenges of access.”

Especially poignant is the closing quote from Helen Keller: "Literature is my Utopia. Here I am not disenfranchised. No barrier of the senses shuts me out from the sweet, gracious discourse of my book-friends."

The Digital Millennium Copyright Act Is Even Worse Than You Think (via Freedom to Tinker)

Copyright shouldn't take away real property rights

iFixit's Kyle Wiens has a must-read op-ed in Wired on the insane way that copyright is being used to take away your property rights in tools as diverse as tractors and cars and cellphones and phone switches. The manufacturers use a variety of copyright claims (especially anti-circumvention claims under the 1998 Digital Millennium Copyright Act/DMCA) to make it illegal to understand how your stuff works, to improve on it, or to repair it. Wiens makes the good point that it's nuts to use metaphorical property (copyright) to end real property rights in things that you buy and pay for.

Meanwhile, progress is being made to legalize cellphone unlocking. With grassroots groups leading the charge, the Obama administration announced its support for overturning the ban last week. Since then, members of Congress have authored no fewer than four bills to legalize unlocking.

This is a step in the right direction, but it’s not enough. Let’s make one thing clear: Fixing our cars, tractors, and cellphones should have nothing to do with copyright.

As long as Congress focuses on just unlocking cellphones, they’re missing the larger point. Senators could pass a hundred unlocking bills; five years from now large companies will find some other copyright claim to limit consumer choice. To really solve the problem, Congress must enact meaningful copyright reform. The potential economic benefits are significant, as free information creates jobs. Service information is freely available online for many smartphones from iFixit (my organization) and other websites. Not coincidentally, thousands of cellphone repair businesses have sprung up in recent years, using the repair knowledge to keep broken cellphones out of landfills.

As long as we’re limited in our ability to modify and repair things, copyright — for all objects — will discourage creativity. It will cost us money. It will cost us jobs. And it’s already costing us our freedom.

Forget the Cellphone Fight — We Should Be Allowed to Unlock Everything We Own (via /.)

Hacking the Xbox, free in honor of Aaron Swartz


Bunnie Huang's seminal book "Hacking the Xbox" is now a free PDF, released thus by the author in honor of Aaron Swartz. "Hacking the Xbox" is the "Our Bodies, Our Selves" of reverse engineering -- a brilliant and accessible text setting out the case for and the practicalities of reverse engineering and taking control of your devices.

I agreed to release this book for free in part because Aaron’s treatment by MIT is not unfamiliar to me. In this book, you will find the story of when I was an MIT graduate student, extracting security keys from the original Microsoft Xbox. You’ll also read about the crushing disappointment of receiving a letter from MIT legal repudiating any association with my work, effectively leaving me on my own to face Microsoft.

The difference was that the faculty of my lab, the AI laboratory, were outraged by this treatment. They openly defied MIT legal and vowed to publish my work as an official “AI Lab Memo,” thereby granting me greater negotiating leverage with Microsoft. Microsoft, mindful of the potential backlash from the court of public opinion over suing a legitimate academic researcher, came to a civil understanding with me over the issue.

It saddens me that America’s so-called government for the people, by the people, and of the people has less compassion and enlightenment toward their fellow man than a corporation. Having been a party to subsequent legal bullying by other entities, I am all too familiar with how ugly and gut-wrenching a high-stakes lawsuit can be. Fortunately, the stakes in my cases were not as high, nor were my adversaries as formidable as Aaron’s, or I too might have succumbed to hopelessness and fear. A few years ago, I started rebuilding my life overseas, and I find a quantum of solace in the thought that my residence abroad makes it a little more difficult to be served.

While the US legal system strives for justice, the rules of the system create an asymmetric war that favors those with resources. By and far one of the most effective methods to force a conclusion, right or wrong, against a small player is to simply bleed them of resources and the will to fight through pre-trial antics. Your entire life feels like it is under an electron microscope, with every tiny blemish magnified into a pitched battle of motions, countermotions, discovery, subpoenas, and affidavits, and each action heaping tens of thousands of dollars onto your legal bill. Your friends, co-workers, employers, and family are drawn into this circus of humiliation as witnesses. Worse, you’re counseled not to speak candidly to anyone, lest they be summoned as a witness against you. Isolated and afraid, it eventually makes more sense to roll over and settle than to take the risk of losing on a technicality versus a better-funded adversary, regardless of the justice.

An open letter from bunnie, author of Hacking the Xbox

White House weighs in on right to unlock your phone

Eric sez, "The Library of Congress recently withdrew the cell phone unlocking exception to the DMCA. In response, a 'We the People' petition was created to ask the White House to weigh in and push to overturn the LoC's decision. Less than two weeks after the petition period closed, White House advisor R. David Edelman has now issued an official response pledging support for the freedom to unlock not only mobile phones, but also tablets. White House advisor R. David Edelman has now issued an official response pledging support for the freedom to unlock not only mobile phones, but also tablets." Cory

Why you can go to jail for 5 years for unlocking your cellphone

Nick Gillespie of Reason says: "We have an interview with Derek Khanna, the guy who got bounced from the Republican Study Committee last fall for publishing (with full approval by his boss) a memo critical of current copyright law and one of the folks pushing a White House petition to allow users to legally unlock their cell phones."

"Who owns your phone at the end of the day?" asks Derek Khanna, a visiting fellow at Yale Law and former staff member at the Republican Study Committee.

Last fall, Khanna earned notoriety - and a pink slip - for a public memo urging GOP members of Congress to rethink their stance on copyright law.

More recently, in a column for The Atlantic, Khanna blasted a new ruling that criminalizes the unlocking of cellphones under the Digital Millenium Copyright Act (DMCA). Unlocking the phone simply means that a person could use a phone designed for one carrier on another carrier, assuming they had switched his plan. In addition to civil penalties, breaking this law could land you in prison for up to five years and force you to pay a fine of up to $500,000.

"In 1998 a poorly written statute, the DMCA, was passed and it prohibited a wide swath of commonly used technology in the name of defending copyright," Khanna explains. "If this is allowed to stand, then the answer is you don't own your phone."

A White House petition to change the law recently reached the 100,000 signature threshold, which means the Obama administration will have to give an opinion on the matter.

Khanna sat down with Reason's Nick Gillespie to discuss the unlocking your cellphone, the flaws in the DMCA, and why he was fired from the Republican Study Committee after writing a paper condemning current copyright law.

Should You Go to Jail for Unlocking Your Phone?

What the ban on unlocking phones means (worse than you think)

You will have heard that the US Copyright Office has lifted the temporary ruling under which you were allowed to unlock your phone. EFF explains in detail what this ruling means (it's not what you think -- and in some ways, it's worse):

First, the good news. The legal shield for jailbreaking and rooting your phone remains up - it'll protect us at least through 2015. The shield for unlocking your phone is down, but carriers probably aren't going to start suing customers en masse, RIAA-style. And the Copyright Office's decision, contrary to what some sensational headlines have said, doesn't necessarily make unlocking illegal.

Unlocking is in a legal grey area under the DMCA. The law was supposed to protect creative works, but it's often been misused by electronics makers to block competition and kill markets for used goods. The courts have pushed back, ruling that the DMCA doesn't protect digital locks that keep digital devices from talking to each other when creative work isn't involved. And no creative work is involved here: Wireless carriers aren't worried about "piracy" of the software on their phones, they're worried about people reselling subsidized phones at a profit. So if the matter ever reached a court, it might well decide that the DMCA does not forbid unlocking a phone.

Now, the bad news. While we don’t expect mass lawsuits anytime soon, the threat still looms. More likely, wireless carriers, or even federal prosecutors, will be emboldened to sue not individuals, but rather businesses that unlock and resell phones. If a court rules in favor of the carriers, penalties can be stiff - up to $2,500 per unlocked phone in a civil suit, and $500,000 or five years in prison in a criminal case where the unlocking is done for "commercial advantage." And this could happen even for phones that are no longer under contract. So we're really not free to do as we want with devices that we own.

All that said, if you were convicted, the maximum penalty under the law for unlocking your phone is now greater than the maximum penalty for turning it into an IED.

Is It Illegal To Unlock a Phone? The Situation is Better - and Worse - Than You Think

How Victoria's Secret censored a burgeoning anti-rape social media campaign

The Electronic Frontier Foundation's Alison Dame-Boyle has a good post on Victoria's Secret bad-tempered attempt to censor a campaign by the feminist group FORCE: Upsetting Rape Culture, which parodied the "Sure Thing" and "Unwrap Me" underwear that Victoria's Secret sells to high-school students with its PINK line, replacing the slogans with phrases like "Ask First" and "Respect."

Victoria's Secret used takedown notices to get FORCE's web-host to shut down its site, to get Twitter to yank the FORCE's @LoveConsent account, shutting down the dialogue about consent and rape just as it was gaining momentum. It's a sobering reminder of the power of copyright takedown rules to be used to censor political speech, and of the fragility of free speech in an era where the entertainment industry has lobbied successfully for laws that allow censorship without a court order.

Though nothing was down for long—the site was only down briefly as FORCE moved to a different hosting provider and the Twitter account was back up by Friday, December 7—even the brief downtime hurt the campaign. FORCE had purposefully launched PINK Loves CONSENT immediately prior to the fashion show to capitalize on the publicity surrounding the event, which attracted nearly 10 million viewers. During the show, tweets about body acceptance and the importance of normalizing a culture of enthusiastic consent made #loveconsent the number one hashtag associated with #victoriassecret. The Facebook page was similarly inundated. FORCE was able to use Victoria’s Secret’s popularity to raise awareness and generate discussion about rape culture on an unprecedented level. When its Twitter account and subsequently its websites were taken down, that discussion was interrupted at a vital time.

These takedowns highlight, once again, the weakest link problem that plagues Internet speech. Individuals and organizations rely on service providers to help them communicate with the world (YouTube, Facebook, Twitter, etc.). A copyright complaint to an intermediary generally triggers a virtually automatic takedown, because the intermediary has a strong interest in complying with the Digital Millenium Copyright Act (DMCA) and preserving its safe harbor from copyright liability. A trademark complaint directed to one of those providers can also mean a fast and easy takedown given that those service providers usually don’t have the resources and/or the inclination to investigate trademark infringement claims. Moreover, because there is no counter-notice procedure, the targets of an improper trademark takedown have no easy way to get their content back up.

I See London, I See France: Victoria's Secret Parody Campaign Fights Takedowns

Potentially useful regulatory distinctions

Some useful distinctions, I think:

* Regulating using a gun
* Regulating carrying a gun
* Regulating owning a gun
* Regulating parts of guns
* Regulating tools that can be used to make guns
* Regulating the information necessary to make guns
* Regulating the information necessary to make tools that can be used to make guns

Bonus distinction:

* Substantial noninfringing use
* Substantial non-horrific use

Google's daily Transparency Report data-dump includes all DMCA requests

Fred von Lohmann, Legal Director at Google, has published a blog-post explaining the company's new practice of publishing data and reports on the number of takedown requests they get. It's all about helping policy makers understand whether the censorship provisions in the Digital Millennium Copyright Act are doing their job:

Starting today, anyone interested in studying the data can download all the data shown for copyright removals in the Transparency Report. The data will be updated every day.

We are also providing information about how often we remove search results that link to allegedly infringing material. Specifically, we are disclosing how many URLs we removed for each request and specified website, the overall removal rate for each request and the specific URLs we did not act on. Between December 2011 and November 2012, we removed 97.5% of all URLs specified in copyright removal requests.

As policymakers evaluate how effective copyright laws are, they need to consider the collateral impact copyright regulation has on the flow of information online. When we launched the copyright removals feature, we received more than 250,000 requests per week. That number has increased tenfold in just six months to more than 2.5 million requests per week today. While we’re now receiving and processing more requests more quickly than ever (on average, within approximately six hours), we still do our best to catch errors or abuse so we don’t mistakenly disable access to non-infringing material.

More data about copyright removals in Transparency Report (via Copyfight)

Major studios send legal threats to Google demanding removal of links to their own Facebook pages and more

One things the movie studios say in copyright takedown discussions is that they're very careful when they send legal threats to Google demanding removal of links to pirated copies of their work. I mean, maybe some little guys out there play fast and loose, but the Big Five? They're grownups, man.

Then, this happened:

On behalf of Lionsgate a DMCA notice was sent to Google, asking the search engine to remove links to infringing copies of the movie “Cabin in the Woods”. The notice in question only lists two dozen URLs, but still manages to include perfectly legal copies of the film on Amazon, iTunes, Blockbuster and Xfinity.

20th Century Fox sent in a DMCA notice to protect the movie “Prometheus”. However, as collateral damage it also took down a link to a legal copy on Verizon on demand, the collection of the Prometheus Watch Company, and a Huffington Post article.

And what about a DMCA takedown request for the Wikipedia entry of “Family Guy” that is supposedly infringing?

Perhaps even more crazy is another request sent on behalf of 20th Century Fox for “How I Met Your Mother”. The DMCA notice lists a CBS URL as the official source of the copyrighted material, but the same URL later appears in the list of infringing links.

There's lots more. For example, BBC Films sent Google a notice demanding removal of links to its own Facebook page.

Movie Studios Ask Google To Censor Their Own Films, Facebook and Wikipedia [TorrentFreak]

Harry Fox Agency claims copyright on Strauss

Stephanie sez, "Somtow Sucharitkul, a notable director, was informed that posting footage of himself, conducting Strauss' Radetzky March was a violation of Harry Fox's supposed copyright on that piece. That 164-year-old piece: 'Perhaps HFA controls the rights to a modern arrangement of this piece, such as a school band version or something, but this is no modern adaptation. It's the original, and Johann Strauss Sr's copyright expired a century ago. Do let me know if I can be of assistance (for instance, I could perhaps get the Austrian Embassy to produce a copy of Strauss's death certificate?)'"

Somtow is also a notable sf writer, who's written under both SP Somtow and Somtow Sucharitkul. Met him once at a Worldcon. Nice guy. Good writer. Talented polymath. World-class snarker!

I sent them this email

Pearson's takedown notice over a quote from a 1974 textbook shuts down 1.45 million edublogs

EduBlogs, a service that hosts 1.45 million educational blogs, had all 1.45 million of them taken offline for 12 hours because their $70K/year hosting company, ServerBeach, pitched a wobbly after receiving a takedown notice from Pearson Publishing. Pearson was upset over a five-year-old blog post where a teacher had quoted 279 words out of an article written in 1974. They sent the takedown notice to their host. EduBlogs deleted the post, but it was still present in their database, so ServerBeach punished them by removing 1.45 million peoples' sites.

Now, like I said, the list only runs to 20 questions, sub 300 words, and I think is a pretty important and useful resource for teachers to share with their students.

But clearly Pearson isn’t making enough money already, and intends to, rather that let this 38-year old work be shared, discussed, used, even in a way that might save some people’s lives, on the internet.

Instead it wants a regular teacher to handover $120 for it.

Here’s another idea Pearson, maybe one that you could take from Edublogs, howabout you let this tiny useful list be freely available, and then you sell your study materials / textbooks and other material around that… maybe use Creative Commons Non Commercial Attribution license or similar to make sure you get some links and business.

Or at the very least contact us directly about it.

Rather than being assholes and stuffing up hundreds of thousands of teachers and students through getting your lawyers to lay into our less-than-satisfactory hosts :(

ServerBeach takes 1.45 million edublogs offline just 12 hours after sending through a Pearson DMCA notice for a 20 question list… (via Techdirt)

Microsoft claims ownership of the number 45, asks Google to censor the US government and Bing


A series of monumentally sloppy, automatically generated takedown notices sent by Microsoft to Google accused the US federal government, Wikipedia, the BBC, HuffPo, TechCrunch, and even Microsoft Bing of infringing on Microsoft's copyrights. Microsoft also accused Spotify (a music streaming site) of hosting material that infringed its copyrights. The takedown was aimed at early Windows 8 Beta leaks, and seemed to target its accusations based on the presence of the number 45 in the URLs. More from TorrentFreak's Ernesto:

Unfortunately this notice is not an isolated incident. In another DMCA notice Microsoft asked Google to remove a Spotify.com URL and on several occasions they even asked Google to censor their own search engine Bing.

The good news is that Google appears to have white-listed a few domains, as the BBC and Wikipedia articles mentioned in the DMCA notice above were not censored. However, less prominent sites are not so lucky and the AMC Theatres and RealClearPolitics pages are still unavailable through Google search today.

As we have mentioned before, the DMCA avalanche is becoming a bigger problem day after day.

Microsoft and other rightsholders are censoring large parts of the Internet, often completely unfounded, and there is absolutely no one to hold them responsible. Websites can’t possibly verify every DMCA claim and the problem will only increase as more takedown notices are sent week after week.

Microsoft DMCA Notice ‘Mistakenly’ Targets BBC, Techcrunch, Wikipedia and U.S. Govt

Report from America's jailbreaking hearings

Wired's David Kravets reports from the Copyright Office's triennial hearings on exceptions to the DMCA's rules against breaking DRM. Every three years, public interest groups supplicate themselves before the Copyright Office and beg for our right to jailbreak our devices and look inside our own property. Every three years, entertainment lawyers show up and demand that nothing of the sort come to pass, because their clients can only survive if it's illegal for you to decide what programs you get to run on the devices you buy. It's all rather revolting, legal sausage-making at its wurst.

Christian Genetski, general counsel of the Entertainment Software Association, told the Copyright Office, whose panelists included its top attorneys and Maria Pallante, the register of copyrights, that freeing Americans to bypass access controls on videogame consoles would decimate the gaming business.

“It will gut videogame consoles’ piracy protections,” he said. “We’re here today because our copyright interests are at stake.”

Allowing such jailbreaking, Hofmann countered, would allow the so-called homebrew community of game developers to play their games on the machines, while also allowing researchers to use the consoles like computers in the furtherance of science.

But the regulators were not clear whether the videogame hack was necessary. They suggested scientists could use computers for their research, and homebrew gamers can play those, too, on their computers.

Robert Kasunic, deputy general counsel of the Copyright Office, suggested that the benefits don’t outweigh the tradeoffs to piracy.

“How do you balance, for instance, the use of being able to put Pong on a homebrew system with the numbers we are aware of in terms of videogame piracy?” he asked, noting that millions of videogames are already being shared without authorization on The Pirate Bay.

So yeah, the Copyright Office generally believes that your rights to your actual, physical property are trumped by multinationals' metaphorical property rights in the things they sell you.

It’s Tinkerers v. Hollywood as Copyright Office Mulls New Jailbreaking Rules

Welcome to your 2012 election season, let the suppression of political debate begin.

Running for office? Embarrassed by YouTube videos that make fun of you or show you looking like an ass? YouTube will give you up to 14 days' worth of censorship for free -- all you need to do is pretend that the video infringes your copyright and invoke the DMCA. EFF wants to change that. Cory