Why DRM is the root of all evil

In my latest Guardian column, What happens with digital rights management in the real world?, I explain why the most important fact about DRM is how it relates to security and disclosure, and not how it relates to fair use and copyright. Most importantly, I propose a shortcut through DRM reform, through a carefully designed legal test-case.

Read the rest

WordPress joins its users in court to fight bogus, censoring copyright claims

WordPress has gone to bat for its users in court, joining in two lawsuits over fraudulent DMCA claims that used copyright claims as a means of censoring critics. Back in August, a British anti-gay group called Straight Pride UK used a copyright claim to censor the publication of an on-the-record interview with one of the group's spokesmen. And in February, disgraced cancer researcher Anil Potti used copyright claims to censor Retraction Watch, a science watchdog that had reported on the journals that retracted Potti's papers.

Wordpress was the host for both of these sites, and at the time, it cooperated with the takedowns (the law does not require WordPress to honor takedowns that it deems to be bogus, but if it does not honor a takedown, it can be named as a party to any eventual lawsuit over the alleged infringement). But when the users went to court to fight for their right to publish, WordPress got their backs -- bravo!

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WordPress honours fraudulent copyright complaint from UK "straight rights" group, cooperates in censorship

A British anti-gay group called "Straight Pride UK" sent a press-release to a British blogger, expressing their admiration for Vladimir Putin's anti-gay laws, and the measures taken in African countries to criminalise gay people (Robert Mugabe has threatened to decapitate gay people). Afterwards, they changed their mind about the interview and sent a fraudulent DMCA takedown notice to WordPress.com, the blogger's host. WordPress -- who should have seen that there was no possible copyright violation in the interview -- caved and cooperated in censoring the post.

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Rotolight sends fraudulent takedown notice to censor unfavorable review


Den Lennie posted a video to Vimeo that compared the Rotolight Anova to a competing product, the Kino Flo Celeb, and found the Rotolight product inferior. Rotolight responded by filing a perjurious, fraudulent DMCA takedown notice with Vimeo (who, to its shame, honored it), claiming that the review violated Rotolight's trademark. This is pure copyfraud: first, because the DMCA is only available as a remedy for copyright infringement (not trademark infringement) and second, because product reviews are not trademark infringements, full stop.

Using a Copyright Infringement claim to shut down the opposition (Thanks, Dave!)

TV station that aired racist joke-names for Asiana crash pilots now misusing copyright to censor evidence of its stupidity


KTVU, the San Francisco TV station that displayed a bunch of jokey, racist pilot names on a newscast about the Asiana crash at SFO, is now misusing copyright law to censor clips that record its mistake for posterity. They say that "everyone has seen the clips" and that it was an "accidental mistake" (as opposed to all those deliberate mistakes), and that this somehow justifies multiple acts of copyfraud against services around the Internet and their users. As always, Mike Masnick Techdirt brings the scathing critique:

First things first. If you're not taking it down for copyright reasons, then why the hell are you using the DMCA takedown system? Noah H. Webster, it's got "COPYRIGHT" right in the frickin' name! Wouldn't a polite note to the YouTube account holders stating the above accomplish the same thing (i.e., a minimal level of compliance)?

As for the arguing it should be removed because "most people have seen it," I don't even know where to go with that. Continuing to show the video isn't "offensive." Only the original act is. Pretending this has something to do with making amends for an earlier error is just kind of sad, especially when the station manager tries to drag viewers into his Shame Circle with "thoughtless repetition of the video by others."

TV Station Issues DMCA Takedowns On Videos Of Its Fake Asian Pilot Names Debacle

New law will fix the DMCA, make jailbreaking, unlocking and interoperability legal - your help needed!

Rep. Zoe Lofgren (D-CA), Rep. Thomas Massie (R-KY) and Rep. Jared Polis (D-CO) have introduced a landmark technology bill called The Unlocking Technology Act of 2013 [PDF] that reforms the way our devices our regulated. It fixes a glaring hole in the Digital Millennium Copyright Act (DMCA), changing the rules so that you are allowed to remove restrictions and locks from your devices provided that you don't violate other laws (as it stands, removing a lock, even to do something legal, like installing unapproved software on your iPhone or change carriers, is banned by the DMCA). The bill clarifies that security researchers don't violate the law by publishing information about flaws in the devices we trust and depend upon, and makes it legal to break "lock-out codes" that stop mechanics from fixing cars.

This is a watershed moment in 21st century technology law, and it's desperately needed. Every day that goes by sees us more dependent on devices that are increasingly designed to be as opaque as possible -- devices made by companies whose business-model treats customers as adversaries who undermine profits when they turn to third parties for software, repairs and services. It is only the presence of the terrible rules in the DMCA that makes this business attractive -- without these rules, technology locks would be quickly broken in the marketplace and competition -- as well as transparency -- would thrive. If you want to be sure that the devices that fill your rooms, your pockets -- and increasingly, your body -- are well-behaved and trustworthy, please support this bill.

FixTheDMCA.org and a broad coalition of groups are calling on Americans to write to their representatives in support of this bill. Until now, almost all technology activism has been reactive, fighting against bad rules. We finally have the chance to make some good rules, to establish a positive agenda for freedom, trustworthiness and transparency in the devices that form the nervous system of the 21st century.


"The Unlocking Technology Act of 2013" has 3 parts:

- It amends Section 1201 to make it clear that it is completely legal to "circumvent" if there is no copyright infringement.

- It legalizes tools and services that enable circumvention as long as they are intended for non-infringing uses.

- It changes Copyright Law to specify that unlocking cell phones is not copyright infringement.


You can read the full text of the bill here.

Finally, there's a bill in Congress that legalizes cell phone unlocking and fixes the DMCA.

Fox sends fraudulent takedown notices for my novel Homeland

My Creative Commons licensed 2013 novel Homeland, the sequel to my 2008 novel Little Brother, spent four weeks on the New York Times bestseller list, and got great reviews around the country. But Fox apparently hasn't heard of it -- or doesn't care. They've been sending takedown notices to Google (and possibly other sites), demanding that links to legally shared copies of the book be removed.

These notices, sent under the Digital Millennium Copyright Act, require that the person who signs them swears, on pain of perjury, that they have a good faith basis to assert that they represent the rightsholder to the work in question. So Fox has been swearing solemn, legally binding oaths to the effect that it is the rightsholder to a file called, for example, "Cory Doctorow Homeland novel."

It's clear that Fox is mistaking these files for episodes of the TV show "Homeland." What's not clear is why or how anyone sending a censorship request could be so sloppy, careless and indifferent to the rights of others that they could get it so utterly wrong. I have made inquiries about the possible legal avenues for addressing this with Fox, but I'm not optimistic. The DMCA makes it easy to carelessly censor the Internet, and makes it hard to get redress for this kind of perjurious, depraved indifference.

Fox Censors Cory Doctorow’s “Homeland” Novel From Google

Groups across America call on Congress to fix DMCA

Boing Boing is a co-signatory to an open letter (PDF) to the House and Senate Judiciary Committees, calling on them to fix the Digital Millennium Copyright Act's ban on jailbreaking and unlocking your devices. This laudable effort was spearheaded by Public Knowledge:

"It is important for Congress to remember that people are waiting on them to solve this problem once and for all. We've seen that Congress wants to ensure that consumers can unlock their phones, but consumers, entrepreneurs, academics, and public interest organizations all agree that we need lasting solutions to make sure that people can use their wireless devices without fearing copyright laws.

"A minor change to the law is all it would take to end this controversy for good. Beyond that, though, this situation shows there are deeper problems with the anticircumvention provisions of the DMCA, and the time is ripe for hearings investigating the harms that come from this law."

Public Knowledge Asks Congress for a Permanent Fix to Cell Phone Unlocking

Policy Laundering: how the US Trade Rep is trading away America's right to unlock its devices

Some of America's worst copyright laws were passed through a profoundly undemocratic process called "policy laundering." This is what happens when an administration can't get Congress to pass a bad copyright law, so the US Trade Representative instead signs the US up to international treaties requiring America to pass the unpopular law. The 1998 Digital Millennium Copyright Act is one of the policy-laundered laws that has done enormous harm to the country.

Now the USTR is busy again, signing America up to treaties that undermine attempts by Congress to make phone unlocking and jailbreaking legal. America's official representative is going to other countries and telling them, "If you want to do business with America, you must ban jailbreaking and phone unlocking, and in return, we promise to keep those activities on the banned list, too."

In other words, America's trade reps are cramming a massively unpopular, harmful policy down the throats of its trading partners, while simultaneously locking America into the same policy, undermining Congress at the same time.

The Electronic Frontier Foundation wants you to take action on this. Maira Sutton and Parker Higgins have written a good article explaining policy laundering in depth.

U.S. wireless carriers claim that unlocking your phone to change carriers is illegal under Section 1201 of the DMCA, which prohibits the removal of digital rights management (DRM) technology. Section 1201 of the DMCA also set up a triennial rulemaking procedure, whereby the public can ask for exceptions to the rule that you cannot remove DRM from your devices. Phone unlocking was not approved in the last round of DMCA rulemaking, raising the specter of lawsuits against phone owners.

In light of public outrage over this, several members of Congress have introduced legislation to legalize phone unlocking. Already, opponents are saying that an effective narrow fix—a permanent phone-unlocking exemption from Section 1201—may violate the Korea-US trade agreement. Regardless of whether such a claim is true, such chatter can be enough to slow down the pace of change, and make any political reformers of the DMCA more cautious than they might otherwise be.

Big Content interest groups like the Motion Picture Association of America, Recording Industry Association of America, and International Federation of the Phonographic Industry—just to name a few—continue to have a strong influence on US trade negotiators. They are lobbying hard for our government to promote international policies to strengthen their control over how and when the public can interact and experience their creative products.

How the US Trade Rep Ratchets Up Worldwide Copyright Laws That Could Keep Your Devices Locked Forever

GoPro sends fraudulent DMCA notice to site that ran a negative review of its products


GoPro, manufacturers of small digital video cameras, sent a Digital Millennium Copyright Notice to a site called DigitalRev, which had compared GoPro's latest camera to Sony's rival Action Video Camera, and concluded that the Sony camera was much better. When GoPro was called on its censorship, the company said,

The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But – our letter did not clearly communicate this and that is something we will correct.

However, the DMCA cannot be used to remove alleged trademark violations. As the name implies, the DMCA concerns itself with copyright, not trademark (that's why it's the DMCA and not the DMTA), and it is nothing less than fraud to send a DMCA notice over an alleged trademark violation. In other words, GoPro violated the law, and then offered a lame-ass, weak-ola excuse for it. You don't need a trademark holder's permission to use its marks in a review, nor do you need to be an authorized reseller to review products.

As GoPro surely knows.

As a reminder, apparently Sony's Action Video Camera kicks the GoPro camera's ass.

GoPro Uses DMCA to Take Down Article Comparing Its Camera with Rival (Thanks, Paul!)

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?