Community Organizing Around Takedowns

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Jim Moore has reposted, on Google Video (heh), the “offending” work that prompted the nastygram from Viacom today. It’s hard to imagine what might have prompted the take-down. As JZ asks in the comments from an earlier post, what can we surmise about the tactic in getting to 100,000 take-downs? Was some bot scanning for keywords in titles, say “Redbones”?

Perhaps we can get to the bottom of it by aggregating other misfires from in this massive take-down push. At TopTenSources (please see my disclosures), here’s a page where you can add a link to your video or enter comment about the take-downs, as well as an e-mail address — youtube.viacom@gmail.com — to which you can send word of your taken-down video. Is Jim’s video the only one that shouldn’t have been flagged? Or are there others out there — possibly with no offending content, or possibly where a fair use defense might apply?

How Many Jim Moores Are Out There? Viacom's Cease and Desist Letters … for Home Videos?

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Jim Moore has received a cease and desist letter from Viacom for a home video that he shot. (I love Jim, but the video’s pretty bad. Highly unlikely to be affecting any market that Viacom cares about, among other things.) The DMCA’s Section 512 has a provision that allows for counter-notification for people, like Jim, who believe that their works that do not infringe copyright have been taken down without cause. Of course, there might be *something* in a home video that is infringing someone else’s rights; perhaps; but no court is making this decision. It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury. I have to say that I don’t blame YouTube for complying quickly with the demand, as the law makes them more or less blameless if they do so, even if that policy hurts their users.

The operative question related to this 100,000 c&d day: How many Jim Moores are out there?

And take a look at the page where the video used to be. The take-down notice results in language that reads: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission.” Really? Watch the video for yourself. It sure looks like that assertion is untrue.

Viacom should recall what happened to Diebold when they over-reached on copyright. The DMCA can also provide for damages back to the legitimate copyright holder when someone’s cease-and-desist letter falsely accuses them. The relevant language reads:

“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices “knowingly.” I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?

Comparing early Obama, Clinton, Edwards web presences

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With a year and a half to go in the ’08 cycle, the idea of presidential candidates using the Internet is big news today, apparently. Eugene Robinson has a clever column today in the Washington Post, in which he compares the web sites of Clinton, Edwards, and Obama. I think he got it mostly right; his column is definitely worth the read. Over the course of the campaign, it will be interesting to see if these same attributes continue to define the web sites, or if strategies shift over time. A second question is whether these differences reflect substantive or tactical differences in the candidates or the campaigns at large. And, most important, whether these differences have any impact on who becomes president.

Mobile Identity Workshop and Berkman West Reception

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Later this week, the Berkman Center heads west to San Francisco.  We’re hosting an unconference on Mobile Identity, led by fellows Doc Searls, John Clippinger, Mary Rundle, Urs Gasser and others.  It’s free and open, but you should sign up if you’d like to come, as space is limited.  CNet is kindly hosting us.  We’re also planning an informal reception for Berkman Center alums and friends; let one of us know if you’ll be in San Francisco on Friday night and we’ll ping you an invite.

Internships at the Berkman Center

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Apply to come work with us this summer as an intern in at the Berkman Center for Internet & Society at Harvard Law School in Cambridge, MA.  Applications are due on Feb. 15; the process is here.  College and graduate (including law, business, etc.) students interested in law, technology, politics, communications, new media, and so forth are encouraged to apply.  The work is meaningful and the experience is fun.  We’d love to hear from you.

Interoperability and Innovation Research

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Today, the Berkman Center joins Urs Gasser and all our friends from the University of St. Gallen in hosting a workshop on interoperability and innovation, in Weissbad, Switzerland. We are in the company of an interesting, eclectic group of technologists, academics, and NGOs leaders. The briefing papers are online.

This workshop is one in a series of such small-group conversations intended both to foster discussion and to inform our own work in this area of interoperability and its relationship to innovation in the field that we study. This is among the hardest, most complex topics that I’ve ever taken up in a serious way.

As with many of the other interesting topics in our field, interop makes clear the difficulty of truly understanding what is going on without having 1) skill in a variety of disciplines, or, absent a super-person who has all these skills in one mind, an interdisciplinary group of people who can bring these skills to bear together; 2) knowledge of multiple factual settings; and 3) perspectives from different places and cultures. While we’ve committed to a transatlantic dialogue on this topic, we realize that even in so doing we are still ignoring the vast majority of the world, where people no doubt also have something to say about interop. This need for breadth and depth is at once fascinating and painful.

In addition to calling for an interdisciplinary and international group of researchers or research inputs, there is no way to talk about interop in a purely abstract way: interop makes sense conceptually online in the context of a set of facts. We’ve decided, for starters, to focus on digital media (DRM interop in the music space in particular); digital identity; and a third primary case (which may be e-Communications, web services, and office applications). One of our goals in this research is to integrate our previous work on digital media, digital ID, and web 2.0 and so forth into this cross-cutting topic of interop.

Another thing is quite clear, as stated most plainly and eloquently by Prof. Francois Leveque of the Ecole des Mines: we need to acknowledge what we do not know, and we really do not know — empirically — to what extent interop has an impact on innovation. A major thrust of our work is to try to establish models of analysis that might help, in varying factual circumstances, in the absence of empirical data as to the costs and benefits of a certain regulatory decision.

This research effort is supported primarily by a gift from Microsoft (as always in our work with corporate sponsors, this gift is unrestricted and mixed with other such unrestricted funds, as well as our core funding from various sources, to mitigate the risk that we are influenced in our work by virtue of sponsorship). We have been blessed by our partners in industry, including many at Microsoft from the Legal and Corporate Affairs group, led by Annemarie Levins on this project, by their willingness to share with us an in-depth view of their work across a range of areas on interop. We’ve also been supported by the input from technologists at IBM and Intel in this event, and many other firms, through our interviewing process. We’d love to hear from other industry, and non-industry, players with an interest in this field.

Companies, NGOs, Investors, Techies, Academics Step Up on Censorship, Surveillance Issues

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This press release is actually big news. Google, Microsoft, Yahoo!, and Vodafone have been working very hard — alongside academics and NGOs — to produce a set of common principles guiding company behavior when faced with laws, regulations and policies that interfere with the achievement of human rights. There is an enormous amount of work to be done, but the process is headed in exactly the right direction, with leadership from BSR (Dunstan Hope & Aron Cramer), CDT (Leslie Harris), and many other good people. The companies should be applauded for taking this big, public step forward, as should the NGOs, academics, shareholders groups, and others who are committed to working shoulder-to-shoulder with them to get it right. Michael Samway of Yahoo! has a fine blog post on the topic here. Rebecca MacKinoon, always all over this issue, weighs in, too.

I am firmly of the view that this problem — of multinational corporations being required, as a matter of law or otherwise, to carry out censorship and surveillance at the behest of states — would best be solved by concerted action of the sort announced today, rather than through legislation as a first pass. One example of such proposed legislation is the Global Online Freedom Act of 2006 (as described here by RMack), which has recently been reintroduced by Rep. Smith. GOFA has noble ends, but is not the best means. The proposed bill would make it nearly impossible for US technology firms to compete in markets like China. If an industry code of conduct were to emerge that has real bite to it, and where NGOs and investors and academics are on hand to ensure that signatory companies live up to it, the results could be far better. And over time, it might well make sense to redact the global industry agreement into law or a treaty to ensure that it is enforceable, evolves over time, and has true public oversight.

For our part, we at the Berkman Center have been proud to have worked with our colleagues on the OpenNet Initiative, as well as the University of California-Berkeley (Xiao Qiang, Deirdre Mulligan, Roxanna Altholz), the University of St. Gallen (Urs Gasser), and the Oxford Internet Institute (JZ!), among others, as participants in earlier iterations of this process, which we called the OpenNet Consensus. Friendly funders from the Open Society Institute (Vera Franz) and the MacArthur Foundation (John Bracken) have stepped up, early on, to support various NGO/academic players in this subject matter area, such as the ONI and the ONC.

The initial participants in this now-public next phase of the process include:

# Berkman Center for Internet & Society at Harvard Law School
# Boston Common Asset Management
# Business for Social Responsibility (Facilitator)
# Calvert Group
# Center for Democracy and Technology (Facilitator)
# Committee to Protect Journalists
# Domini Social Investments LLC
# Electronic Frontier Foundation
# Enterprise Privacy Group
# F&C Asset Management
# Google, Inc.
# Human Rights First
# Human Rights in China
# Human Rights Watch
# International Business Leaders Forum
# International Council on Human Rights Policy
# Microsoft
# Reporters Without Borders
# Trillium Asset Management
# United Nations Special Representative to the Secretary-General on business & human rights (Observer status)
# University of California, Berkeley School of Law-Boalt Hall
# Vodafone
# Yahoo! Inc.

New Pew survey on Internet & Politics

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Lee Rainie and John Horrigan have released the latest in their series of insightful reports about the impact of Internet use on politics. This report (covered by Frank Davies of the Merc) examines political activity and information access online during the 2006 campaign cycle. Good news for those focusing on digital natives and their use of the Internet for politics: young people, especially those with broadband, seem more likely to go online for political information and to get involved. (Congrats and thanks, Lee and John!)