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 •

The Electronic Frontier Foundation has selected some of the best submissions from the Copyright Office's review of whether it should continue to be legal in the USA to "jailbreak" your devices in order to make them more suited to their needs. In this post, we hear from a deaf man who jailbreaks his phone so that he can use it as an assistive device at work; a military worker in Kuwait who jailbreaks his phone so he can quickly access the flashlight function to scare off dangerous wildlife near the base; and a nurse whose jailbroken device allows her to "track my performance, treatments used on patients, and the effects of those treatments, much faster with customizations that are not available on a device that is not jailbroken."

A note for Canadians: Bill C-11, Canada's proposed copyright law, has no similar exemption-setting process. That means that if MP James Moore succeeds in passing his legislation, it would be illegal to modify your property in the ways described here.

Kevin McLeod is a deaf man who uses his Android phone — a Samsung Epic 4G — to assist him with communication, record-keeping, and time management. Like many deaf people, he uses video relay service (VRS) software on his phone to “work on a level playing field with hearing peers and have productive and meaningful careers.” He had these comments for the Copyright Office:

I need a phone that can run VRS software through the day without having to recharge every other hour. The stock phone I received can't do that. I had to upgrade to a more powerful battery. Then I installed an alternative version of the Android operating system called CleanGB that removes most of the carrier-installed software. This freed up memory and battery resources I need to stay connected.

We need the ability to modify our devices because manufacturers and carriers can't possibly anticipate all the needs of their customers. We need flexibility to make the most of the terrific tools they build for us. I love the power and connectivity my phone gives me. I love that I can customize it to meet my unique needs.

Letters to the Copyright Office: Why I Jailbreak

(Image: Jailbreaking the iPhone - 06, a Creative Commons Attribution Share-Alike (2.0) image from yugen's photostream)

The Electronic Frontier Foundation is petitioning the US Copyright Office for a DMCA exemption legalizing "jailbreaking" -- modifying the devices you own so that they can run software of your choosing. The Copyright Office holds hearings every three years on DMCA exemptions and these need to be renewed at each hearing.

To highlight the need for a jailbreaking exemption, EFF has made this video showing how Sony shipped its PlayStation 3 with the promise that users could run GNU/Linux on it, a promise that was taken up by many purchasers, including the USAF, who used a room full of PS3s running Linux to make a clustered supercomputer. But Sony changed its mind and revoked the feature after the fact and began to actively pursue legal penalties against researchers who attempted to restore it.

However, in April 2010, Sony’s mandatory firmware update -- version 3.21 -- removed the ability to install "Other OS" -- meaning no more Linux on your PlayStation. To add legal muscle to its firmware, Sony sued several security researchers for publishing information about security holes that would allow users to run Linux on their machines again. Claiming that the research violated the DMCA, Sony asked the court to impound all "circumvention devices" -- which it defines to include not only the defendants' computers, but also all "instructions," i.e., their research and findings.

This means you can set your PlayStation on fire, but you can’t run Linux on hardware you own. To illustrate how ludicrous this is, we made a video illustrating what an owner can do with a PlayStation -- and what Sony contends they can’t.

PlayStation 3 "Other OS" Saga Shows: Jailbreaking Is Not a Crime

Warner Brothers has filed a brief in its lawsuit against file-locker service Hotfile in which it admits that it sent copyright takedown notices asserting it had good faith to believe that the files named infringed its copyrights, despite the fact that it had never downloaded the files to check, and that it sometimes named files that were not under Warners's copyright, including files that were perfectly legal. Among the files that Warner asked Hotfile to remove was a file called "h­ttp://hotfile.com/contacts.html and give them the details of where the link was posted and the link and they will deal to the @sshole who posted the fake" and others.

The studio also "admits that it did not (and did not need to) download every file it believed to be infringing prior to submitting the file's URL" to the Hotfile takedown tool. That's because "given the volume and pace of new infringements on Hotfile, Warner could not practically download and view the contents of each file prior to requesting that it be taken down."

This is interesting because the DMCA requires a copyright holder issuing a takedown notice to state that it has a "good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." It's hard to see how anyone at Warner Brothers could have formed any beliefs—good faith or otherwise—about files it admits that no human being at Warner had even looked at.

The recently-proposed Stop Online Piracy Act, which is backed by the major Hollywood studios, would give copyright holders new powers to cut off websites' access to payment processors and advertising networks. It even includes a new DMCA-style notice-and-takedown scheme. But given the cavalier way that Warner Brothers has used the powers it already has under the DMCA, policymakers may be reluctant to expand those powers even further.

Warner Bros: we issued takedowns for files we never saw, didn't own copyright to

It's been years since the idea of "trusted computing" was first mooted -- a hardware layer for PCs that can verify that your OS matches the version the vendor created. At the time, TC advocates proposed that this would be most useful for thwarting malicious software, like rootkits, that compromise user privacy and security.

But from the start, civil liberties people have worried that there was a danger that TC could be used to lock hardware to specific vendors' operating systems, and prevent you from, for example, tossing out Windows and installing GNU/Linux on your PC.

The latest iteration of Trusted Computing is called "UEFI," and boards are starting to ship with UEFI hardware that can prevent the machine from loading altered operating systems. This would be a great boon to users -- if the PC vendors supplied the keys necessary to unlock the UEFI module and load your own OS. That way, UEFI could verify the integrity of any OS you chose to run.

But PC vendors -- either out of laziness or some more sinister motive -- may choose not to release those keys, and as a result, PC hardware could enter the market that is technically capable of running GNU/Linux, but which will not allow you to run any OS other than Windows.

What's more, UEFI may fall into the category of "effective access control for a copyrighted work," which means that breaking it would be illegal under the DMCA -- in other words, it could be illegal to choose to run any OS other than the one that the hardware vendor supplied.

Secure boot is optional, but there is likely to be a fair amount of pressure applied by proprietary OS makers to enable it. One could imagine that those vendors might also provide a way to turn off secure boot (from a BIOS-like menu for example), but that is something that might be exploited by rootkits and other malware, so there may well be resistance to allowing that kind of option. Protecting users from rootkits and the like is certainly useful, but there is a competitive advantage as well. Hardware vendors can ensure that only the code they approve can run on the hardware, and proprietary OS vendors will be largely unaffected because their keys will be in the signature database. One would hope that the protection against malware is the primary motivation, but the ability to lock out free OSes is likely seen as a plus.

It is Linux and other free systems that could suffer most from secure boot implementations. While it would be possible for various distributions to get their keys added, that wouldn't help anyone who wanted to run a tweaked version of the "approved" bootloader or kernel. Distributors would not be able to release their private keys to allow folks to sign their own binaries either. Each key is just as valid as any other, so malware authors would just pick up those keys to sign their wares. Exposed keys would also find their way onto the forbidden list rather quickly one suspects.

UEFI and "secure boot" (via /.)

The Electronic Frontier Foundation's Julie Samuels posts analysis of yesterday's verdict in Capitol Records vs. MP3tunes, in which the big record labels were suing MP3tunes. The labels argued that MP3tunes wasn't eligible for the DMCA's "safe harbor" protection, and should have a duty to check all the files that users added to their lockers to make sure they didn't infringe copyright. The court disagreed.

But it appears that all of this worry and extra work may have been in vain. Just yesterday, a court found that an early music locker service, MP3tunes, which uses a de-duplicating process, “is precisely the type of system routinely protected by the DMCA safe harbor(s).” This outcome represents an understanding of copyright law more in line with how technology actually works, and avoids an absurd result where a music locker needs to waste server space by storing thousands of copies of identical files. This means more efficient music locker services, which is good news for music fans and for companies coming up with new and better ways to give those fans access to music they already own.

The opinion in the Capitol Records vs. MP3tunes case contained other good news (EFF filed an amicus brief in this case earlier this year). For example, the court made clear that the music locker service—whether it de-dupes or not—is like any online service provider (OSP) and, therefore, is entitled to the DMCA safe harbor protections as long as it complies with other DMCA requirements.

MP3tunes: A Victory for Music Lockers Is Good News for Music Fans

Peanutweeter, the extremely funny and clever best-of-Twitter project that inserted odd tweets into oddly matching Peanuts panels, has been taken down from Tumblr following a DMCA copyright complaint from the Iconix Brand Group, who bought the Peanuts copyrights.

The site's creator, T. Jason Agnello, said he doesn't plan to fight the takedown.

"I believe I put a good-faith effort into specifying that this was a fair use parody," Agnello said Friday in an e-mail to Wired.com. "However, I don't have the legal might to argue it. Nor do I wish for the stress in doing so."

Update: a good piece of fair use analysis on @Peanutweeter: IN DEFENSE: Why @Peanutweeter Should Be Considered Fair Use (via @dhowell)

Good Grief! Peanutweeter Gets Taken Down Following DMCA Claim

The UK Music Publishers' Association filed a seemingly groundless copyright claim against the International Music Score Library Portal, a repository of out-of-copyright sheet-music, over the score for Rachmaninoff's The Bells. The MPA sent the complaint to GoDaddy, the IMSLP's domain registrar, who took down the entire IMSLP site without further notice. Subsequently, the MPA sought to have its takedown notice removed from the Internet; this may have something to do with the fact that if baseless, its filing has opened it up to legal liability and the IMSLP people are furious and raising money for a punitive lawsuit against the publishers.

Needless to say, we've already responded to Go-Daddy's arbitrary action with a request to reconsider their response. We are also looking into the pursuit of legal action of our own against the Music Publishers Association of the UK for their malicious attempt to shut this site down. Sad to say, the Evil Empire Strikes Back - all too soon. Too bad that a gang of dying companies running on a failed business model can't find anything more productive to do with their time (like maybe promoting the works of living composers, instead of playing lawyer over ones dead since 1943).

IMSLP Under Attack (Thanks, Dan!)

Canada's left-leaning New Democratic Party have unveiled their Internet campaign promises for this election; they're a stark contrast to the Tories, who've vowed to re-engineer Canada's network to make it easier to spy on Canadians without a court order. Instead, the NDP promises to extend broadband (wired and wireless) across the nation, to force the CRTC (the national telcoms regulator) to be more responsive to consumer interests, and to enshrine net neutrality (a term coined by Canadian Tim Wu!) into law.

* We will apply the proceeds from the advanced wireless spectrum auction to ensure all Canadians, no matter where they live, will have quality high-speed broadband internet access;
* We will expect the major internet carriers to contribute financially to this goal;
* We will rescind the 2006 Conservative industry-oriented directive to the CRTC and direct the regulator to stand up for the public interest, not just the major telecommunications companies;
* We will enshrine "net neutrality" in law, end price gouging and "net throttling," with clear rules for Internet Service Providers (ISPs), enforced by the CRTC;
* We will prohibit all forms of usage-based billing (UBB) by Internet Service Providers (ISPs);
* We will introduce a bill on copyright reform to ensure that Canada complies with its international treaty obligations, while balancing consumers' and creators' rights.

NDP Unveils Its Digital Economy Strategy: Reshaping Internet Access in Canada

(Image: Rainbows, a Creative Commons Attribution (2.0) image from jaqian's photostream)

Last week, I got an email from a lawyer representing the Tolkien estate informing me that his clients hadn't demanded that Zazzle remove Adam Rakunas's badge reading "While you were reading Tolkien, I was watching Evangelion."

So I wrote to Adam and asked him what Zazzle had told him about the affair. He was good enough to post all of his correspondence with Zazzle over the matter. On February 28, "Mike" from Zazzle wrote to Adam to say:

With regards to details of the infringement, all legal documents are confidential therefore I cannot release this undisclosed information. But we ask that you do acknowledge the fact that we were contacted by The J.R.R. Tolkien Estate, and at their request to prevent and remove any unauthorized and infringing third-party uses of their copyrights, trademarks and intellectual properties.

But when Adam pressed them for details (and after a lot of bad publicity), "Mike" wrote back:

This email is in regards to the deletion of your button entitled "While you were reading Tolkien,I was watching Eva". After corresponding with representatives from the Tolkien Estate, it's been brought to our attention that the design was removed inadvertently due to a miscommunication on our part.

I've written to several addresses at Zazzle seeking clarification, without an answer. But here's my guess: the Tolkien estate had previously contacted Zazzle and said, forcefully, "You keep carrying things that infringe our copyrights and trademarks. We expect you to take them down and prevent this from happening in the future." So Zazzle instituted a blanket policy of removing anything that even smelled of Tolkien. Then this dumb thing happened, and the lawyers called back and said, "Well, that button didn't infringe on our rights, so you shouldn't have taken it down." And Zazzle put it back up.

I've asked the Tolkien estate lawyer to confirm this repeatedly; he's said things like "I repeat that the Estate made no complaint concerning this badge, which was removed on Zazzle's own initiative. There is no further relevant information to add." When I asked again, "Did the estate ask Zazzle to engage in pro-active policing of its marks and copyrights?" he stopped responding to my emails. I guess you can infer what you want from that.

Anyone from Zazzle reading this: I'd love to get your side of the story.

The Zazzle Emails