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Super Bust: Due Process and Domain Name Seizure

February 3, 2011 by

With the same made-for PR timing that prompted a previous seizure of domain names just before shopping’s “Cyber Monday,” Immigration and Customs Enforcement struck again, this time days before the Super Bowl, against “10 websites that illegally streamed live sporting telecasts and pay-per-view events over the Internet.” ICE executed seizure warrants against the 10, ATDHE.NET, CHANNELSURFING.NET, HQ-STREAMS.COM, HQSTREAMS.NET, FIRSTROW.NET, ILEMI.COM, IILEMI.COM, IILEMII.COM, ROJADIRECTA.ORG and ROJADIRECTA.COM, by demanding that registries redirect nameserver requests for the domains to 74.81.170.110, where a colorful “This domain name has been seized by ICE” graphic is displayed.

This domain name has been seized

As in a previous round of seizures, these warrants were issued ex parte, without the participation of the owners of the domain names or the websites operating there. And, as in the previous rounds, there are questions about the propriety of the shutdowns. One of the sites whose domain was seized was Spanish site rojadirecta.com / rojadirecta.org, a linking site that had previously defeated copyright infringement claims in Madrid, its home jurisdiction. There, it prevailed on arguments that it did not host infringing material, but provided links to software and streams elsewhere on the Internet. Senator Ron Wyden has questioned the seizures, saying he “worr[ies] that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court.”

According to ICE, the domains were subject to civil forfeiture under 18 U.S.C. § 2323(a), for “for illegally distributing copyrighted sporting events,” and seizure under § 981. That raises procedural problems, however: when the magistrate gets the request for seizure warrant, he or she hears only one side — the prosecutor’s. Without any opposing counsel, the judge is unlikely to learn whether the accused sites are general-purpose search engines or hosting sites for user-posted material, or sites providing or encouraging infringement. (Google, for example, has gotten many complaints from the NFL requesting the removal of links — should their domains be seized too?)

Now I don’t want to judge one way or the other based on limited evidence. Chilling Effects has DMCA takedown demands from several parties demanding that Google remove from its search index pages on some of these sites — complaints that are themselves one-side’s allegation of infringement.

What I’d like to see instead is due process for the accused before domain names are seized and sites disrupted. I’d like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site’s owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity. As Joe Hall has written here, domain names can’t defend themselves.

In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that’s the same resolution ICE seeks by force.)

If seizures must be made on ex parte affidavits, the magistrate judges should feel free to question the affiants and the evidence presented to them and to call upon experts or amici to brief the issues. In their review, magistrates should beware that a misfired seizure can cause irreparable injury to lawfully operating site-operators, innovators, and independent artists using sites for authorized promotion of their own materials.

I’d like to compile a set of public recommendations to the magistrate judges who might be confronted with these search warrants in the future, if ICE’s “Operation In Our Sites” continues. This would include verifying that the alleged infringements are the intended purpose of the domain name use, not merely a small proportion of a lawful general-use site.

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Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

September 21, 2010 by

Last week, The New York Times reported that Russian police were using copyright allegations to raid political dissidents, confiscating the computers of advocacy groups and opposition newspapers “under the pretext of searching for pirated Microsoft software.” Admirably, Microsoft responded the next day with a declaration of license amnesty to all NGOs:

To prevent non-government organizations from falling victim to nefarious actions taken in the guise of anti-piracy enforcement, Microsoft will create a new unilateral software license for NGOs that will ensure they have free, legal copies of our products.

Microsoft’s authorization undercuts any claim that its software is being infringed, but the Russian authorities may well find other popular software to use as pretext to disrupt political opponents.

“Piracy” has become the new tax evasion, an all-purpose charge that can be lobbed against just about anyone. If the charge alone can prompt investigation — and any electronics could harbor infringing copies — it gives authorities great discretion to interfere with dissidents.

That tinge of censorship should raise grave concern here in the United States, where Patrick Leahy and Orrin Hatch, with Senate colleagues, have introduced the “Combating Online Infringement and Counterfeits Act.” (PDF).

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Jailbreaking Copyright's Extended Scope

July 28, 2010 by

A bit late for the rule’s “triennial” cycle, the Librarian of Congress has released the sec 1201(a)(1)(C) exceptions from the DMCA prohibitions on circumventing copyright access controls. For the next three years, people will not be ” circumventing” if they “jailbreak” or unlock their smartphones, remix short portions of motion pictures on DVD (if they are college and university professors or media students, documentary filmmakers, or non-commercial video-makers), research the security of videogames, get balky obsolete dongled programs to work, or make an ebook read-aloud. (I wrote about the hearings more than a year ago, when the movie studios demoed camcording a movie — that didn’t work to stop the exemption.)

Since I’ve criticized the DMCA’s copyright expansion, I was particularly interested in the inter-agency debate over EFF’s proposed jailbreak exemption. Even given the expanded “para-copyright” of anticircumvention, the Register of Copyrights and NTIA disagreed over how far the copyright holder’s monopoly should reach. The Register recommended that jailbreaking be exempted from circumvention liability, while NTIA supported Apple’s opposition to the jailbreak exemption.

According to the Register (PDF), Apple’s “access control [preventing the running of unapproved applications] does not really appear to be protecting any copyright interest.” Apple might have had business reasons for wanting to close its platform, including taking a 30% cut of application sales and curating the iPhone “ecosystem,” those weren’t copyright reasons to bar the modification of 50 bytes of code.

NTIA saw it differently. In November 2009, after receiving preliminary recommendations from Register Peters, Asst. Secretary Larry Strickling wrote (PDF):

NTIA does not support this proposed exemption [for cell phone jailbreaking]…. Proponents argue that jailbreaking will support open communications platforms and the rights of consumers to take maximum advantage of wireless networks and associated hardware and software. Even if permitting cell phone “jailbreaking” could facilitate innovation, better serve consumers, and encourage the market to utilize open platforms, it might just as likely deter innovation by not allowing the developer to recoup its development costs and to be rewarded for its innovation. NTIA shares proponents’ enthusiasm for open platforms, but is concerned that the proper forum for consideration of these public policy questions lies before the expert regulatory agencies, the U.S. Department of Justice and the U.S. Congress.

The debate affects what an end-user buys when purchasing a product with embedded software, and how far copyright law can be leveraged to control that experience and the market. Is it, as Apple would have it, only the right to use the phone in the closed “ecosystem” as dictated by Apple, with only exit (minus termination fees) if you don’t like it there? or is it a building block, around which the user can choose a range of complements from Apple and elsewhere? In the first case, we see the happenstance of software copyright locking together a vertically integrated or curated platform, forcing new entrants to build the whole stack in order to compete. In the second, we see opportunities for distributed innovation that starts at a smaller scale: someone can build an application without Apple’s approval, improving the user’s iPhone without starting from scratch.

NTIA would send these “public policy” questions to Congress or the Department of Justice (antitrust), but the Copyright Office and Librarian of Congress properly handled them here. “[T]he task of this rulemaking is to determine whether the availability and use of access control measures has already diminished or is about to diminish the ability of the public to engage in noninfringing uses of copyrighted works similar or analogous to those that the public had traditionally been able to make prior to the enactment of the DMCA,” the Register says. Pre-DMCA, copyright left room for reverse engineering for interoperability, for end-users and complementors to bust stacks and add value. Post-DMCA, this exemption helps to restore the balance toward noninfringing uses.

In a related vein, economists have been framing research into proprietary strategies for two-sided markets, in which a platform provider is mediating between two sets of users — such as iPhone’s end-users and its app developers. In their profit-maximizing interests, proprietors may want to adjust both price and other aspects of their platforms, for example selecting fewer app developers than a competitive market would support so each earns a scarcity surplus it can pay to Apple. But just because proprietors want a constrained environment does not mean that the law should support them, nor that end-users are better off when the platform-provider maximizes profits. Copyright protects individual works against unauthorized copying; it should not be an instrument of platform maintenance — not even when the platform is or includes a copyrighted work.

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Bilski and the Value of Experimentation

July 15, 2010 by

The Supreme Court’s long-awaited decision in Bilski v. Kappos brought closure to this particular patent prosecution, but not much clarity to the questions surrounding business method patents. The Court upheld the Federal Circuit’s conclusion that the claimed “procedure for instructing buyers and sellers how to protect against the risk of price fluctuations in a discrete section of the economy” was unpatentable, but threw out the “machine-or-transformation” test the lower court had used. In its place, the Court’s majority gave us a set of “clues” which future applicants, Sherlock Holmes-like, must use to discern the boundaries separating patentable processes from unpatentable “abstract ideas.”

The Court missed an opportunity to throw out “business method” patents, where a great many of these abstract ideas are currently claimed, and failed to address the abstraction of many software patents. Instead, Justice Kennedy’s majority seemed to go out of its way to avoid deciding even the questions presented, simultaneously appealing to the new technological demands of the “Information Age”

As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals.

and yet re-ups the uncertainty on the same page:

It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection.

The Court’s opinion dismisses the Federal Circuit’s brighter line test for “machine-or-transformation” in favor of hand-waving standards: a series of “clues,” “tools” and “guideposts” toward the unpatentable “abstract ideas.” While Kennedy notes that “This Age puts the possibility of innovation in the hands of more people,” his opinion leaves all of those people with new burdens of uncertainty — whether they seek patents or reject patent’s exclusivity but risk running into the patents of others. No wonder Justice Stevens, who concurs in the rejection of Bilski’s application but would have thrown business method patents out with it, calls the whole thing “less than pellucid.”

The one thing the meandering makes clear is that while the Supreme Court doesn’t like the Federal Circuit’s test (despite the Federal Circuit’s attempt to derive it from prior Supreme Court precedents), neither do the Supremes want to propose a new test of their own. The decision, like prior patent cases to reach the Supreme Court, points to larger structural problems: the lack of a diverse proving-ground for patent cases.

Since 1982, patent cases, unlike most other cases in our federal system, have all been appealed to one court, United States Court of Appeals for the Federal Circuit. Thus while copyright appeals, for example, are heard in the circuit court for the district in which they originate (one of twelve regional circuits), all patent appeals are funneled to the Federal Circuit. And while its judges may be persuaded by other circuits’ opinions, one circuit is not bound to follow its fellows, and may “split” on legal questions. Consolidation in the Federal Circuit deprives the Supreme Court of such “circuit splits” in patent law. At most, it may have dissents from the Federal Circuit’s panel or en banc decision. If it doesn’t like the test of the Federal Circuit, the Supreme Court has no other appellate court to which to turn.

Circuit splits are good for judicial decisionmaking. They permit experimentation and dialogue around difficult points of law. (The Supreme Court hears fewer than 5% of the cases appealed to it, but is twice as likely to take cases presenting inter-circuit splits.) Like the states in the federal system, multiple circuits provide a “laboratory [to] try novel social and economic experiments.” Diverse judges examining the same law, as presented in differing circumstances, can analyze it from different angles (and differing policy perspectives). The Supreme Court considering an issue ripened by the analysis of several courts is more likely to find a test it can support, less likely to have to craft one from scratch or abjure the task. At the cost of temporary non-uniformity, we may get empirical evidence toward better interpretation.

At a time when “harmonization” is pushed as justification for treaties(and a uniform ratcheting-up of intellectual property regimes), the Bilski opinion suggests again that uniformity is overrated, especially if it’s uniform murk.

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Chilling and Warming Effects

October 9, 2009 by

For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it’s welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren’s lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying “PRL owns all right, title, and interest in the original images that appear in the Advertisements.” Other hosts pull content “expeditiously” when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don’t counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing’s archives, in a pattern the press has nicknamed the “Streisand Effect.”

We use the term “chilling effects” to describe indirect legal restraints, or self-censorship, because most cease-and-desist letters don’t go through the courts. The lawyers (and non-lawyers) sending them rely on the in terrorem effects of threatened legal action, and often succeed in silencing speech for the cost of an e-postage stamp.

Actions like BoingBoing’s use the court of public opinion to counter this squelching. They fight legalese with public outrage (in support of legal analysis), and at the same time, help other readers to understand they have similar rights. Further, they increase the “cost” of sending cease-and-desists, as they make potential claimants consider the publicity risks being made to look foolish, bullying, or worse.

For those curious about the underlying legalities here, the Copyright Act makes clear that fair use, including for the purposes of commentary, criticism, and news reporting, is not an infringement of copyright. See Chilling Effects’ fair use FAQ. Yet the DMCA notice-and-takedown procedure encourages ISPs to respond to complaints with takedown, not investigation and legal balancing. Providers like BoingBoing’s Priority Colo should also get credit for their willingness to back their users’ responses.

As a result of the attention, Ralph Lauren apologized for the image: “After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

May the warming (and proper attention to the health of fashion models) continue!

[cross-posted at Chilling Effects]

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