 We have sound, I think we're ready to go. So discussion here, the title of the presentation was The Internet's Private Cops, Protecting Your Rights Against Corporate Vigilantes. And the concern, I'm Wendy Seltzer, staff attorney with the Electronic Frontier Foundation. And thanks very much, thrilled to be here. So our concern in this discussion is that you've heard a lot about and will be hearing a lot about the public cops, the government, the law enforcement and the steps that you should take to keep your activities safe from them. And my concern in this presentation is to draw your attention to another set of threats to online activity. And that's the threats from the private law enforcement, the corporations and private actors who are also interested in stifling some of your online speech, in stopping some of your activities and whose activities and enforcement pose threats to the Internet itself because of the way they're trying to crack down on activity. So the early view in the famous words of AFF co-founder John Gilmour, the Internet views censorship as damage and routes around it. The thought was that hackers didn't need to worry about the law because if the law stepped in in one place, the network would move in a different direction and would just evade the law enforcement, avoid the pressures of the East Coast code with the West Coast code, simply beat them by playing a different game. The question that comes up though as we see more and more pressure from Washington to change the law, pressure from companies to crack down on online activity is will the law break the Internet before we manage to route around the bad law? Because even without understanding the technology, we find lawyers and regulators attempting to regulate it and they're dangerous because they don't understand the technology because they regulate to demand the impossible, trying to impose, require for example that we put watermark detectors into every analog to digital converter to stop the threat of digital copyrighted material possibly leaking out onto the Internet. And if they regulate to demand the impossible, then everybody becomes a law breaker and everybody becomes a potential target. So our goal is to understand the law and the technology. If the regulators won't understand the tech, then the technologists have to understand the law and how to work with it in order to change it and in order to protect yourself from the legal threats. So a case that many of you may be aware of in this private enforcement context is the RIA versus Verizon. And funny to be saying to this crowd that we're on Verizon's side in this matter but the recording industry association of America went to court and got the clerk's stamp on some subpoenas demanding the identity from some alleged file sharers on Kaza. Verizon standing up for its users' privacy and anonymity rights in their online activity withheld the names and went to court with a motion to quash the subpoena saying it had a right to keep its subscriber records private and its subscribers more importantly had a right to keep their activities safe from the prying of the recording industry. The DC district court ordered them to reveal the names and although that decision is currently on appeal, the appeals court also ordered Verizon to turn over the names even before the appeal was heard. So we've now since then we've seen a spate of subpoenas from the recording industry to tens of ISPs and hundreds for the identities of hundreds of additional users and the recording industry tells us they're sending these things out at the rate of about 75 a day demanding identities of individual users. And later on this evening at 6 o'clock in the Apollo room EFF is a group of us going to have a session specifically on this RIA versus the people tried to discuss this onslaught on individuals and on file sharing. Sure, do you have a question right now? Yes, very much the ISPs have taken the position that they are just neutral intermediaries and not responsible for what their users are posting and then they have a safe harbor written into the law as part of the Digital Millennium Copyright Act that says that they're not responsible for the content their users are posting or transmitting via the network. But another part of that safe harbor contains this subpoena provision and one of the challenges right now is whether it's even constitutional to allow the recording industry to subpoena information from ISPs without any pending lawsuits. But here the recording industry was saying we're not trying to hold Verizon liable but we need to go through Verizon and the other ISPs to get to the end users information. So part of the story behind this case is that the peer-to-peer services were initially thought to be unstoppable. Napster went down but then people thought well that was because they had a centralized server. Napster itself was the target and once Kazaa and Grokster and other networks came up with decentralized services then it would be harder to go after them and this file sharing, this network activity would always be free. And EFF recently won in the central district of California on behalf of Grokster arguing that the newer peer-to-peer file sharing software manufacturers should not be liable for the content that their users were posting. That because the peer-to-peer software was decentralized and available for use in all sorts of ways that Grokster and the peer-to-peer software manufacturers shouldn't be liable for their users activities but that doesn't solve the problem because the recording industry says fine we can't go after the software companies, we'll find other targets, we'll find the ISPs and we'll find through them the end users. So law enforcement is not just the government but law enforcement is also the private companies who are able to use the mechanisms of government namely the courts to enforce the laws that they say protect them. And the government is then called in as a backup when the corporations go to court demanding enforcement of their legal rights. And the internet architectures facilitate this control even among amid the decentralization there are still choke points, there are still internet service providers and backbone providers and domain name service and places in the network that can be targeted even if you are speaking even if you are participating in what looks like a private forum all of the connections are through private networks the servers are private and there are lots of different places in this network that can be targeted. So we see that while the internet enables more people to publish it also enables more people and corporations to monitor that speech. The bots and enforcement mechanisms that the recording industry uses to search out songs now these are on the public network this is using the peer-to-peer networks the recording industry argues as they were designed to be used similarly corporate copyright holders and trademark holders send out search bots that are accessing public websites in the same manner that a visitor is accessing those websites and in the same manner that a browser whom you would invite in would be accessing them but they're specifically on the lookout for their copyrighted material their trademarks and when they see those they come back with legal claims they claim that because your work is inspired by something that they have a copyright in that it's a copyright infringement or if you've developed the technology that interoperates with a proprietary protocol they may claim that you're circumventing technological protection measures and falling foul of the digital millennium copyright act anti-circumvention provisions we were hearing earlier about ways creative ways to record streaming media we've seen lawsuits where media players that can mimic the so-called secret handshake of a real audio player been sued for circumventing technological measures protecting claimed to protect the copyrighted material that's being streamed and because of the way the safe harbor works in the DMCA when an ISP gets a takedown request it's its strong incentive is to take down the material that's claimed to be infringing a copyright even if there's no copyright infringement and although you as a user if you've posted something have a right to file a counter notification we often see that the process ends with a takedown notice to an ISP material goes down and there's never judicial determination whether there's been a violation of copyright or not we also see claims of trademark infringement because you may be commenting on or criticizing a company's product parodying their logo they may claim that that infringes their trademarks we see claims of trade secret misappropriation frequently from companies claiming that employees have stolen their material and posted it on bulletin boards or disgruntled employees are misappropriating trade secrets or trying to give out inside information we see all sorts of legal claims and the tools that lawyers use in these cases are a fairly basic set they start out with the cease and desist letter a nasty let and nasty gram on fancy letterhead claiming that you've done something that violates the law if you don't respond within some very short period of time ten days then we will pursue all available legal remedies and they'll often spell out in great detail all of the injunctions and statutory damages that they'll seek often these things overstate the law but it's often a cheap way to get material taken down from the net subpoena is a step up from the cease and desist letter that the lawyer as officer of the court still doesn't have to get a judge's signature on the subpoena but does have to bring a few forms to the court clerk get and get those things stamped and issued from the court and those are a formal demand from the court to turn over information going further they can file a lawsuit file a complaint and things get a bit more expensive for both sides at that point but a lawsuit gives for the range of private investigation through various discovery mechanisms and finally private corporations can work in cooperation with federal and state prosecutors if they see something that appears to be a criminal violation they can suggest to the district attorney or federal agent that this this looks like a case ripe for prosecution well there so how can how can we respond well the chilling effects project which is a joint effort of electronic frontier foundation and several law school clinics around the country Harvard Stanford Berkeley it's working to combat the chill that comes from these legal effects that over legal threats that overstate the case trying to help people to understand their legal rights and so that they're not deterred merely by the language in some of these cease and desist letters and so chilling effects chilling effects dot org invites people to submit their cease and desist letters to the chilling effects project and have them analyzed the law students that are various clinics we work with will analyze the cease and desist letters and pull out key phrases from the letters and link those to explanations of the law so somebody who's made a claim of copyright will get a link to explaining what copyright protects and then again to the defenses to a claim of copyright infringement the fair use exceptions and the kinds of activity that might constitute fair use rather than copyright infringement to help the recipients understand that although some lawyer is claiming that there's a copyright infringement going on that's not necessarily the case so we had the story of Dave Zilla dot com who's going to come sue for over this well God's the owners of Godzilla Japanese company Toho unfortunately they're not so good with the Internet and this is the page that you get to when you search for Godzilla but nonetheless they thought that this Dave's illa page was a threat to their online brand and sent to cease and desist letter claiming that that little dragon was an infringement of their trademark demanding that you remove the objectionable imagery and reference to Godzilla from your website to eliminate any likelihood of confusion now likelihood of confusion is the key test for trademark infringement and if you look at that little dragon there's not a whole lot of likelihood of confusion with Godzilla but that's the claim so what can you do you get one of these well one thing submit the letter to chilling effects and then think about how you know how to use the internet far better than some of the companies who are sending these threats so in response to this claim that God that Dave's illa confuses consumers in the public we see a quiz that asks is it Godzilla can you figure out whether whether these things are Godzilla and all sorts of free Dave's illa everybody became the quiz illa and the zilla liberation front and we didn't hear very much more from Toho their nasty gram notwithstanding Dave's illa is still there and the dragon logo remains what else do we see we see sony claiming about their ibo that somebody who called himself ibo pet and developed electronic dances for the ibo was circumventing the copyright protection mechanisms that sony had put in place on this two thousand dollar robots memory stick and he got a cease and desist letter demanding that he remove the programs stop teaching his dog new tricks claimed unauthorized distribution of copyrighted software circumventing the copy protection and so he submitted to chilling effects this is our submission form get a little explanation of what circumvention is and how unfortunately the anti circumvention law is a pretty steep barrier to reverse engineering and although it's supposed to have an exception for reverse engineering for interoperability that hasn't turned worked out so well in practice that hasn't given people protection from these kinds of threats and the threats of lawsuit can be rather frightening but here to an internet protest a show of support for this kind of creative programming was enough to get sony to turn around and realize that you know in order to use these programs at all somebody's got to buy a two thousand dollar piece of hardware from sony it's hard to see how this circumvention is really harming sony's market and swayed by that sony allowed ibopet to put up slightly modified software that made them a little bit more comfortable that it wasn't threatening their intellectual property but still let people do creative things with their hardware so we've got the legit iMut program that's now online and now available meanwhile ibopet is going to law school to learn to read the end user license agreements and there are now all sorts of other all sorts of people who might think to sue over these pages but have wisely decided so far at least that it's not harming them and they'll let it go meanwhile the american kennel club inexplicably decided that the ibokennel club was infringing them are and moreover it ensures a normal lineage for your ibopet but the robots do not produce offspring so there is no lineage to record corporations with no sense of humor don't get very far on the web and ibokennel club still seems to be around as well finally one last example from the chilling effect site another another step we've been able to take is in conjunction with google which as a search engine gets a lot of dmca takedown requests these are claims that by linking to pages that infringe copyright through its search engine google is contributing to the copyright infringement and because the dmca spells out an exception or a category in its safe harbor for information location tools and describes the safe harbor that they can seek if they remove the links from their search engine leaving open the possibility that they could at least be sued for a contributory infringement if they refused to take those links out google thought it was safer when demanded to remove the links from its search engine so our friend the scientologists were among the first to use dmca takedown notices this way they found operation clam bake a site that they've never particularly liked that's critical of scientology that reposts pieces of the scientology doctrines in the context of criticizing scientology and explaining problems they see so scientology sent google a series of dmca takedown notices demanding that google remove links from its search engine results well rather than remove them silently leave people wondering what's happened to the criticism has scientology triumphed overall its critics google decided it needed it wanted to take advantage of the safe harbor it wanted to get this protection from possible liability by removing the links but it didn't want them to disappear completely so it added this link at the bottom of a search page that links over to chilling effects and both explains the dmca policy and gives a link to the dmca complaint and if you click on that link at the bottom of the search results you head over to chilling effects where you see the demand that google remove search results you see why it is that google's results can't be complete and on the attached chart you see the listing of those search results that google was asked to remove well with a few extra steps you can still find them so we hope that this gives people a way to understand what's happening with the dmca and a way to express frustration if you think that google's results are less useful because they're forced to remove results on a mere claim that the material is infringing the complaint shouldn't be with google the complaint should be with congress with your lawmakers who have seen fit to enact this provision into law that makes google think that their only reasonable response is to remove links from their search index so resisting the jail legal threats as we've seen are often used against obnoxious but not illegal activities corporations think often rightly that paying their lawyers for an hour or so of sending off a nasty gram on fancy letterhead will get down 90% of what's bothering them and if they don't go after the 10% that stay up that's still good enough but in order to resist the chill helps both to know the law and as part of the chilling effect site we've got background and frequently asked questions in the various subject areas trademark copyright patent law defamation some of the legality questions around linking and invite you if you get a cease and desist letter or have questions about the law come see what the general background information is and submit the letter to chilling effects and think about this fighting back out of band corporations know their legal remedies but they don't necessarily stop to think about the bad publicity that they can get for making silly legal claims and chilling effects helps to expose that and you who are doing things on the web and on the net can also help to expose the silliness that people are invoking in the name of the law and finally when the law itself is broken we need people to become activists and work to fix the law if copyright law is truly criminalizing the activities of millions of people it's time for those millions of us to go to congress and demand that we get a more sensible copyright law that allows us to do the things that we like so of course EFF has resources on these issues chilling effects has some resources and I always like to like to close with this Judge Kaczynski in the Ninth Circuit in a case brought by Mattel against Aqua for the song Barbie Girl closed by concluding that Barbie Girl was not an infringement of Mattel's trademarks and the parties are advised to chill and of course as chilling effects we advise you not to be chilled at the same time so I'm happy to take questions senator Coleman has just announced that he's interested in doing some investigation into the IAA subpoenas and we strongly support that investigation and will be very interested to and hopeful that he will be able to get more information out of the recording industry than the public has so far about what they're doing and what they're trying to achieve by subpoenaing 75 people a day that's one of the real challenges in this area that the the defendants in a lawsuit don't have in the American system often don't have great remedies against the other side in a copyright suit the successful defendant can win costs and attorney's fees from the other side otherwise and particularly if it's non-commercial activity it's hard to counter sue with some of the traditional interference with business relations or interference with contract it's hard hard to get money back for the harassment that these things are causing another piece of our aim with this project is to get some creative thinking going about what we need to bring these laws back into balance let me just sure what exactly do they require to actually file these for the IAA? well we're going to get into that in more detail later this evening but in short they require a good faith allegation of copyright infringement yeah one of the things we'd like to see out of this in Coleman investigation or others is exactly what they're doing they may be downloading files they may at least be looking at hashes in the case of us sure they clearly weren't unfortunately all they're swearing under penalty of perjury is that they are acting with authorization of the copyright holder all the rest is just stuff they're saying if they're downloading somebody else's copyrighted file and without authorization and I suppose they they could be it's going to be very difficult to get a judge to to find against them because of the whole context in which they're engaging in this activity they will say we need to do this to protect our rights they would probably have a make a fair use claim that they weren't doing it to listen to the song or to get a market replacement for the song but to try to enforce their rights did you have a question there it's very hard to know obviously the things that we don't see on chilling effects and don't see publicized are hard to count and another a part of the Genesis the chilling effects project was our frustration at seeing websites that you'd see one day and the next day you'd see the front page replaced by a cease and desist letter and a few days after that you'd see nothing at all this is at least a way to track the ones who do submit information to our site and to follow up on those stories and in some cases we see people who are able to resist the chill others unfortunately feel that they have to take down at the back part of the problem is in the way that they're doing it that when they're going after user information from the ISP there's no there's been no judicial determination that there's a copyright infringement going on and so on the mere good faith allegation that there's an infringement they can breach any privacy that the user might have thought he had in online activities and unfortunately a lot of the activity underneath may be copyright infringement but there there are people using the networks for other purposes and they shouldn't be subject to having their identities revealed on the mere claim that something unlawful is going on it's an issue of low-hanging fruit right now the ones that are easiest for them to look at and easiest for them to get into will be the ones that they go after first they they seem to be trying a scare tactic where they go make enough noise and bluster to scare people away from using the networks but I get the bigger picture that I'm trying to give though is that it's not enough for us to think well the smart ones among us can just go to the better hidden peer-to-peer networks we should also really be working to change the law so that if there's a better way of addressing the the problems of getting artists paid for the music and getting the music that we want to listen to let's think about how to reform the law to answer those questions yeah we've we've just started up a big let the music play campaign trying to help people to understand the impact of the law trying to we work with organizations like the creative commons that are thinking about creative alternative licensing mechanisms and that show people the kinds of creativity that can flourish when copyright isn't used to lock works up and basically yes trying to show people the range of options that could work better than the system that's locking things up for 95 years they through the courts pacer system they have all been made public to anybody who registers for a password and so far EFF has been taking and as court records they're all public also to anyone who walks into the DC district court so we've been trying to keep up database look up to help people see whether they've been fingered yet right now they're all being filed in the DC district court district of Columbia and a few people so far have challenged that as a court that doesn't have jurisdiction over Boston College or MIT and Boston and at SBC out in California has challenged that as well a lot of those start out as subpoenas to ISPs for user information because a lot of the claims are for postings on bulletin boards a lot of people put information up there thinking that they've got a pseudonym that nobody will trace and so the employer then subpoenas the ISP or the host for the user information and we've been helping some of those users to file John Doe lawsuits to or motions to quash the subpoenas where in fact there's no trade secret and it really appears to be an attempt to harass an employee who's saying something that he's got a lawful right to say some of them some of them do some of them get dropped at the motion to quash stage because the court finds there was really no lawful basis for the subpoena in the first place and even if you found the identity you wouldn't have a reason to go after the person so there's no reason to give up the identity it's an honestly good question it it shows the lack of proportion in a lot of these laws that copyright holders successfully argued to congress that our digital assets are so valuable that without extraordinarily harsh penalties we won't be able to keep them safe congress said sure that sounds reasonable to us and we got the no electronic theft act and we're hearing proposals now to lower the limit to make uploading of a single or offering for upload of a single song a felony and again that's what we need the public to speak out against and to to make that very claim it's ridiculous against this kind of market to be calling this a criminal act i see a couple of people in the back we're going to try and get more of these this discussion going later this evening if you can get back for that we can't ensure we don't know the strategy that they're going to use a lot of it seems to be scare that's a strategic judgment that maybe the corporation or the person demanding removal should be making it they they might be wise not to demand removal if they think that that's just going to make it more interesting it's not really all right one last question and then i'll be headed outside for anyone else well some of the silliest we've seen have come from the company that owns Barney who sends out claims whenever anyone puts up the Barney song with different words or puts devil's horns on the dinosaur we see a lot from Scientology all right thanks very much