The folks at American University have found another group of folks who need some clarity around copyright law and fair use, producing a “best practices” guide for online video producers.

This is yet another in a series of projects designed to empower specific kinds of content creators to make meaningful use of the right to make fair use of copyrighted works. Earlier groups that have benefited from this ongoing project include documentary filmmakers and media literacy educators.

This best practices movement is the work of dozens of high-quality people, but it has been led by Peter Jaszi (AU Law Professor and Director of the Glushko-Samuelson Intellectual Property Law Clinic) and Patricia Aufderheide (AU Professor of Communication and Director of the Center for Social Media).

Thanks to Public Knowledge for the link.

Senator John McCain faces two major political problems surrounding the issue of retroactive immunity for telecommunications firms that complied with the Bush administration’s warrantless (and thus, illegal) wiretapping program. Both point to larger weaknesses in the McCain campaign.

First, McCain has been consistently inconsistent on whether he thinks companies should be let off the hook retroactively. Declan McCullagh has a great post summarizing McCain’s shifting positions on telecom immunity (just the latest of McCain’s flip-flops).

In 2005, McCain wanted the lawsuits to go forward. Now, he’s parroting the Bush administration party line: unconditional immunity.

In a second, related problem for McCain, the EFF has broken the story that the McCain campaign staff includes several prominent telecom lobbyists.

These reveal deeper weaknesses in the campaign. First is McCain’s need to corral the far right wing of his party. At the start of the campaign, the neocons in particular were worried by the senator’s perceived moderate stances on national security issues, including torture.

The telecom immunity switch (much like his switch on torture) shows how McCain now wants to have it both ways. He has ditched a formerly strong principled stand because he dares not cross Bush and create an impression of non-zealotry on national security.

Including lobbyists in his campaign staff–despite having sponsored legislation that would ban exactly that practice–shows him flip-flopping on campaign ethics for another reason: without ignoring campaign laws and legislative proposals, even those bearing his name, McCain cannot compete with Obama’s massive resources.

Thanks to amazing grassroots support from small donors, Obama has raised approximately $593 bazillion dollars to McCain’s $85.07. The senior senator from Arizona thus needs all the free help he can get. (I wonder if he’d take me on as his debate coach.)

McCain has even larger problems on the breaking-the-rules-he-wrote front. With only 2 commissioners serving, the Federal Elections Commission lacks a quorum and is thus technically unable to release him from the public campaign financing system to which he earlier agreed.

With his nomination all but sewn up in February, McCain’s new fundraising power led him to conclude that he could unilaterally change his mind, opting out of the public financing system without FEC approval. Republican FEC Chairman David M. Mason sent McCain a stern letter disabusing him of this notion, a fact that has been underplayed in much of the media reporting on the issue.

Thanks to Senate gridlock, the FEC still has just two commissioners, and McCain is still bound by the $54m spending cap to which he agreed. Nonetheless, FEC data state that he has already spent $66.5m and will almost certainly spend tens of millions more before the Republican convention.

Thus, having telecom lobbyists run his campaign is really part and parcel with McCain’s broader campaign ethics problem. He is violating the campaign laws and proposals that were to be his strongest marker of integrity.

Likewise, his change of heart on telecom immunity is part-and-parcel with his overall rightward dive away from the constitutional rule of law.

P.S. This is probably the most partisan piece in ShoutingLoudly history, but I think it’s still 100% within our blog’s tradition of putting constitutional principles before national-security-flavored scare tactics.

[Modified from earlier version, in which I'd described a "$50m fundraising cap". The limit is $54, and this Washington Post article correctly describes it as a spending limit.]

In a study of copyright holders’ automated tools for generating DMCA takedown notices, University of Washington researchers successfully demonstrate that these automated methods are hardly sound evidence of actual infringement.

For the study, “Tracking the Trackers,” the researchers framed several innocent IP addresses, making it look like they were using BitTorrent to trade copyrighted content.

A more sophisticated investigation on the part of the copyright cops (read: trying to download the files) would have found that there was no infringement on these IP addresses. Yet these spoofs yielded actual takedown notices–threatening letters from industry lawyers to the university-as-ISP.

Several of the takedown notices identified IP addresses used by university printers.

We still know little about actual data collection methods, but the study is a real wake-up call. In the words of Ed Felten (my source), it shows that “takedowns [are] based on inconclusive evidence.” The study’s authors conclude that deliberate, malicious spoofing is not necessary to generate false positives; real people may be hit by this scattershot method of generating accusations.

This is particularly problematic considering the severe effects that sometimes result from just one takedown notice. End users may lose computing privileges and face other disciplinary problems, especially at colleges.

PS The study’s lead author, Michael Piatek, is also involved in some other really interesting projects.

Art Brodsky at Public Knowledge has a great post today assailing the Washington Post’s weekend editorial opposing mandated network neutrality.

The line-by-line refutation is solid, but about halfway through, Brodsky points out that the Post has a big finger in the ISP pie. Through subsidiary Cable ONE, the Post made over $600m in 2007, much of it from the company’s 340,000 cable modem subscribers.

Sadly, the paper fails to disclose this fact in the editorial.

The mobile phone industry’s practice of ramped-up Early Termination Fees (ETF) have been a source of concern to consumers and regulators for years. Now, the Federal Communications Commission may make a Faustian bargain to limit the amount and conditions under which customers are charged.

Many consumers, consumer groups, and legislators are outraged by the practice. Cell providers claim the fees are tied to the cost of discounted cell phones, but providers’ business practices–demanding contracts even when customers provide phones, extending contracts every time customers switch service plans–suggest the real intent is to discourage customers from switching providers.

Customers have gotten together and filed a number of class action lawsuits, and members of Congress and state legislators have offered a number of bills. Faced with this legal onslaught, the providers surely came to realize they would do better dealing with an FCC that will remain friendly at least until 2009.

Thus, Verizon Wireless has proposed that the FCC usurp jurisdiction, void pending lawsuits, and force the rest of the industry to adopt something remarkably close to Verizon’s current business model: 30 day trial period, ETFs pro-rated over the course of the contract, and no contract extensions for changing one’s service plan.

Customers who’ve sued are outraged; part of the proposal is that past fees could not be refunded.

Read more at Wired News.

It’s really an AP story, and it masks the venue-shopping perniciousness with a cheery headline and opening. Prospectively, the policy change would be a positive development, but when the industry proposes it, you know something funky is about to go down.

In addition to cutting a few zillion-dollar lawsuits off at the knees, Verizon is desperate to avoid state or federal legislation on the issue. The FCC is a much friendlier venue, and any regulation passed there is likely much better for the industry. Even if the rules are the same, there’s no reason the FCC can’t just undo or modify this restriction in the future.

On a personal note, I just switched to T-Mobile, and they’re pretty ruthless with extending contracts for any service change (thus imposing ETFs for leaving, even after you’ve done your time), so I’m hoping I don’t have to change plans any time soon. But at least I got a BlackBerry Curve (MASSIVE Flash warning) out of the deal. So far, I am in LOVE with this phone.

I got it at LetsTalk.com, where I paid $49.99 for the phone, and I still get the T-Mobile $100 mail-in rebate. Even after the $35 activation, T-Mobile will have paid me $15 to take a Curve and a 2-year contract. My wife (who, of course, also had to get a new contract) also got a nice new phone.

My wife and I have wanted to get on the same carrier for awhile (she’s been with TMo for years), and we had both fulfilled our contracts when she lost her paleolithic handset last week.

It was Verizon’s demand for a contract that kept us from switching her to them and not vice versa. Having picked up an old Blackberry on eBay so that I could add the data plan, I had 2 VZ phones free and clear.

All we wanted was to activate a line for my wife with my old phone. Verizon wouldn’t do it without a 1 year contract.

Which brings me back to the story: Yeah, sure, contracts and ETFs are only necessary to pay for subsidized cell phones…

In a post on Threat Level discussing the scary legal precedent set by the Lori Drew prosecution, EFF civil liberties director Jennifer Granick says she would want to talk to Drew.

I doubt Granick supports Drew’s behavior, but the EFF is all about preserving our online freedoms, and the interpretations pushed by prosecutors to make their case are highly problematic. In a nutshell, here’s their argument:

1. It is against MySpace terms of service (ToS) to post false information, impersonate another person, or solicit personal information from a minor.

2. By breaching these ToS, Drew was engaged in unauthorized access to MySpace computers.

3. Unauthorized access to computers is a violation of federal law–the same law used against those who crack into companies’ servers to steal data, deface websites, etc.

Using the law in this way sets a terrible precedent. It would make me a felon every time I use BugMeNot.com to log into a mandatory-registration website with ToS demanding accurate information. From the post:

By way of example, Granick notes that some terms-of-use contracts prohibit users from making negative comments about the company. “If you write on a blog something disparaging about that company, are you in violation of criminal law?”

Other contracts have prohibited visitors to a website from linking to that site. …

[Andrea Matwyshyn, law professor at the University of Pennsylvania's Wharton Business School,] says she understands the impulse, but is concerned that if successfully prosecuted the case could set a bad precedent for turning breach-of-contract civil cases into criminal ones.

“Terms of use have been progressively getting more Draconian and restrictive,” she notes. “So as these provisions get drafted and users agree to them, we may find ourselves in a situation where a company that drafts one may try to leverage this kind of case law to take a breach-of-contract action and turn it into a computer-intrusion [case].”

The EFF has hardly made a commitment to defend Drew, but Granick definitely left the door open.

When asked if this is the kind of case Granick would want to litigate, she said, “If [Drew] calls me I’d be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it’s dangerously flawed for other cases. I think it’s scary and it’s wrong and something should be done about it.”

If I were Drew, I’d call right now. With a lynch mob federal prosecutor at her door, she needs all the friends she can get.

(For the record, we at ShoutingLoudly do not support adults engaging in psychologically devious online behavior with minor children. Anger at this behavior and sympathy for the victim’s family, however, need not be coextensive with willingness to disregard the dangers of bad case law.)

Art Brodsky of Public Knowledge has a great post discussing the two House bills that would mandate network neutrality–or at least discourage broadband discrimination.

In the Judiciary Committee, Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) introduced HR 5994, the “Internet Freedom and Nondiscrimination Act of 2008” (pdf). It authorizes the Department of Justice, under antitrust law, to require all broadband services to be offered on neutral, nondiscriminatory terms.

In the Commerce Committee, Reps Ed Markey (D-MA) and Chip Pickering (R-MS) are pushing HR 5353, the “Internet Freedom Preservation Act of 2008.” This is a far weaker act. It gives the FCC something of a hook on which to hang an argument for net neutrality regulations, declaring that it is US policy that the internet shall remain open and neutral. But it does so under Title I authority, which (to radically oversimplify) means the FCC’s hook is not very strong.

Instead of a strong regulatory regime, the bill mandates an FCC study and report to Congress. In debate, we referred to this strategy as a “studies counterplan.” Don’t do anything, just study the problem further.

In competitive debate and in Congress, “study the problem” is not the strongest rhetorical position, and it’s an even more tepid first move (in debate, a studies counterplan is a strategy for the team that’s assigned to defend the status quo). But even a weak regulatory hook (the first part of the bill) might be enough to discourage Comcast-like monkey business.

In the political world, the bill might also serve a noble purpose as a trial balloon. If its backers (including myself) can’t even get vague statutory authority and a studies counterplan passed, maybe we need to think about another strategy.

In any case, Art is right: it would be best to pass both bills and provide both FCC and DoJ with enforcement authority. It’s an area regulated by the FCC on a day-to-day basis, but it was the DoJ that broke up Ma Bell.

Thanks to a recent 9th Circuit ruling, US v. Arnold, customs agents at the US border are free to rummage through the data on your electronic gadgets such as cell phones and laptops.

EFF has this advice on how to preserve your digital privacy–including encryption, encrypted internet connections, and (if you live in the right state/district) contacting your elected representatives.

Yesterday, a federal district court ruled that merely making copyrighted works available online does not constitute infringement.

The case, Atlantic v. Howell, is yet another battle in the RIAA’s legal war on music traders. Here is the heart of EFF’s summary of yesterday’s ruling:

In its order, the court delivers the most decisive rejection yet of the recording industry’s “making available” theory of infringement (i.e., if someone could have downloaded it from you, you’ve violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that “[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords.” The court goes on to conclude that downloads by the recording industry’s own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

The defendants, Mr. and Mrs. Howell, are currently without counsel (as someone who grew up watching Gilligan’s Island reruns, I find this ironic), but the EFF are trying to help them find a lawyer.

The next step is likely a bench trial–neither side wanted a jury trial. Until last October, I would have thought this to be a mistake on the Howells’ part; surely a jury of one’s peers would be more sympathetic to the average person than most federal judges. But the Howells probably know that a jury in a similar case handed Jammie Thomas a bill for $222,000, a substantial rebuttal to the assumption that the jury would feel sympathy or apply modest penalties.

I’m stoked by Damian Kulash’s New York Times opinion calling for mandated network neutrality. It’s a far more accessible, engaging piece than almost anything written on the subject, and he makes a compelling case. Kudos to him.

P.S. On a personal note, it’s been a metric year since I blogged, and for good reason. Life is crazy now, not least because my wife Tina Collins just got a 2 year fellowship at (ahem) HARVARD! So as I finish up my dissertation (still expecting to wrap it up this summer), we’re gearing up to move (her and probably me) to Cambridge. While I’m still actively applying for tenure-track jobs across the country, I’m also looking at postdocs and other work around Boston.

Expect more rage-against-the-machine blogitude once I’m resettled.