NMR to speak on free speech & copyright law at the Alliance for Community Media Conference May 30 in San Francisco

New Media Rights Executive Director Art Neill will be speaking on a panel at the Alliance for Community Media Annual Conference on May 30, 2013 in San Francisco, CA.

The topic of the panel will be "Free Speech vs. Copyright: An Intersection or a Collision."

The panel will be an opportunity to give positive support to artists, showing them the ways the law can actually empower their creativity, how to avoid legal disputes in the first place, and how to move forward if you do face legal threats.

The conference takes place from May 29-31 at the Westin St. Francis in downtown San Francisco.

Here's a description of the panel:

Free Speech vs. Copyright: An Intersection or a Collision?

How does community media’s promotion of the First Amendment sit with the standards we adopt for copyright? Can we respect Intellectual Property, Intellectual Freedom and Internet Protocols all at the same time? We’ll discuss the parameters and limits for what we can show on TV and online, where we can source content from, and how concepts such as Fair Use, Free Speech, and Creative Commons relate to community media. We’ll offer suggestions to both producers and programmers for realizing the full possibilities of freedom of expression and consider what restrictions one should adhere to.

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Is Youtube refusing to honor DMCA counter-notices?

Unfortunately, New Media Rights has seen evidence in recent months that suggests that some large media companies have been able to override legitimate appeals and disputes by users regarding content takedowns.  Our guest blog below from Patrick McKay of the Fair Use and Youtube watchdog FairUseTube.org, explains the problem in more depth.

We're monitoring the issue closely and trying to gather additional information to help address this issue, so feel free to contact us with additional information you may have regarding DMCA counternotices that fail restore disputed content on Youtube. Regardless, this is a reminder of one of the often ignored secrets about the DMCA safe harbors that protect websites like Youtube - that service providers may choose to honor takedown notices from copyright holders and not to honor counternotices from users.  The practice may be legal, but the consequences on the range of expression on services like Youtube is significant.  
 
Under the default law, Youtube might still be liable to the user, but even then the remedies a user could obtain from Youtube may be small, and Youtube attempts to try to further cover themselves in their terms of use as follows.
 
"If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content maybe replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion."
 
That's why its important for us as users to keep a close eye on what Youtube is doing and place consumer pressure on Youtube to actually "not be evil" in terms of providing fair process for videos to appeal takedowns. It's also a reminder that the more Youtube's revenue model includes large media company content partners, the more influence those companies can have over the content we can access online.
 

Youtube refusing to honor DMCA Counter-notices

 

by Patrick McKay

Last October, YouTube announced some much needed reforms to its Content ID copyright dispute process. Bowing to growing public pressure, YouTube ended the practice of allowing copyright claimants to unilaterally deny disputes, leaving users with no further recourse to have non-infringing videos restored.

YouTube established a new “appeals” process, which once again gave users whose videos are blocked by Content ID recourse to the DMCA counter-notice process if the copyright owner insists on rejecting their dispute. At the end of the process, the user’s video would be restored unless the copyright claimant actually filed a lawsuit seeking an injunction to keep it offline. No longer.

YouTube refuses to honor counter-notices for “contractual reasons”

For months I have been trying to discover why many users have been receiving responses to DMCA counter-notices stating, “It appears that you do not have the necessary rights to post the content on YouTube. Therefore, we regretfully cannot honor this counter-notification.” I even got in touch with a YouTube product manager who promised to look into the situation for me, though he has not yet provided me with any answers. While I initially suspected some kind of technical glitch, it now appears that something far more nefarious is going on.

 

I have recently discovered evidence that YouTube has contracts with certain copyright holders (including Universal Music Group – UMG) to refuse to honor DMCA counter-notices sent in response to their copyright takedowns—essentially giving them the power to take down any video they wish, even if it does not infringe their copyright in any way.

It is interesting to note that a little over a year ago when UMG infamously took down the “Megaupload Song” video with a completely bogus copyright claim, UMG claimed it had unspecified “contractual rights” to do so even if it did not infringe its copyrights. At the time however, YouTube explicitly denied having a contract with UMG that gave them the right to take down videos on which they had no legitimate copyright claim, stating, “Our partners do not have the right to take down videos from YouTube unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists…”

It appears things have changed. Consider the following:

Last week I was contacted by a YouTube user named John (YouTube username: WernerVonWallenrod), who mainly posts reviews of old vinyl records. He uploaded a roughly 7 minute videoreviewing an old Eric B. & Rakim record from the 1980s, 90% of which consists of him standing in his kitchen talking about the record. The video includes a couple clips of him playing short (<1 minute) segments of the record while filming the record player.

Because the video uses only short, low-quality segments of a few songs on the record for purposes of critical commentary and review, the video almost certainly qualifies as a textbook example of fair use. Nevertheless, UMG had the video taken down with a DMCA notice. Believing his video to be fair use, John sent a properly filed DMCA counter-notice in response. A few days later, he received this email from YouTube (emphasis added):

Hi there,

Thank you for your counter-notification. The complainant has reaffirmed the information in its DMCA notification. YouTube has a contractual obligation to this specific copyright owner that prevents us from reinstating videos in such circumstances. Therefore, we regretfully cannot honor this counter-notification.

You may learn more about this here:

http://support.google.com/youtube/bin/answer.py?hl=en&answer=3045545

We unfortunately are unable to assist further in this matter. You may wish to contact the complainant directly at youtube@umusic.com.

 Regards,

 Linda

The YouTube Team

This message is extremely disturbing for multiple reasons. It appears that YouTube is saying it essentially has a contract with UMG to ignore DMCA counter-notices sent against its copyright claims, so that even if the copyright takedown has no legal basis, YouTube must nevertheless refuse to restore the video if UMG “reaffirms” the information in its DMCA notice. The help page referenced in the email providers further details (emphasis added): 

Videos removed or blocked due to YouTube's contractual obligations

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.

YouTube will inform you if this is the case for one of your videos, and will provide you with contact information for the complainant whenever possible so you can discuss the matter directly.

So the user is stuck. Their video could be fair use, in the public domain, or contain no UMG content whatsoever, but as long as UMG “reaffirms” their takedown notice (which based on previous experience I’m guessing they will always do), YouTube will refuse to restore the video. YouTube and UMG (and possibly other copyright holders) have made a contractual end-run around the DMCA notice and counter-notice process, giving certain preferred copyright holders a free pass to take down any video on YouTube they wish with impunity, having been guaranteed that their takedowns will be immune from counter-notices.

No recourse for user

In such cases about the only thing the user can do is attempt to contact the copyright claimant using the information provided by YouTube, and attempt to convince them to retract their copyright claim (probably a futile endeavor). In John’s case, he emailed the provided youtube@umusic.com address to inquire about this situation, and interestingly enough, even though the email is on a UMG-owned domain, he received a response not from UMG but from YouTube, stating:

For the reasons explained before, we regretfully cannot honor this counter-notification. However, your account will not be penalized and your strike has been resolved.

YouTube was kind enough to remove the copyright strike on his account, though only after he contacted them, not after they initially refused to restore his video.

YouTube’s liability limited

 

It should be noted that YouTube has no legal obligation under the DMCA to restore videos upon receiving a counter-notice. The DMCA is only a safe-harbor which sites may follow to be immune from liability, and is not in itself mandatory. In order to be immune from liability for users’ copyright infringement, YouTube must take down videos upon request. Likewise, in order to be immune from liability to the user for taking down the video, YouTube must restore the video within 14 business days of receiving a counter-notice, unless it first receives notice that the copyright holder, “has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.”

Here, YouTube takes down videos upon receipt of a takedown notice, but it is refusing to restore them after receiving a counter-notice, even though no lawsuit has been filed seeking an injunction. This means in theory, YouTube is liable to the user for taking down the video. However, YouTube has been careful to immunize itself against liability for this through its Terms of Service, which state:

If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content maybe replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion.

So even though the law makes YouTube potentially liable for refusing to honor a counter-notice, YouTube’s Terms of Service (which you have to agree to in order to use the site) override this, giving it the right to refuse to restore a video at its sole discretion.

About the only legal remedy the user could possibly pursue would be to sue Universal Music for misrepresentation under section 512(f) of the DMCA, along with seeking a declaratory judgment that the video is not infringing and an injunction against UMG continuing to assert a copyright claim over it. This, of course, is not feasible for the average YouTube user.

Conclusion

While YouTube has no actual legal obligation to restore videos after receiving DMCA counter-notices, YouTube is clearly violating the spirit of the DMCA. The DMCA is quite clear in its intent that the end result of the copyright dispute process on a user-generated content site should be that if the user insists their content is not infringing, it should be kept online unless the copyright holder sues for an injunction to have it taken down. This necessarily requires a court ruling that the material is infringing.

YouTube and UMG have taken the intent of the DMCA and turned it on its head. Now instead of the copyright holder having to sue to keep the material offline, the only way a user can have his video restored is to sue the copyright claimant for a declaration that the video is not infringing and to secure an injunction forcing the copyright claimant to withdraw its copyright claim.

Before posting this article, I sent emails to YouTube’s press contact, Annie Baxter (whom I have corresponded with in the past), and to a YouTube product manager I met at a conference in February, seeking comment on this situation. Neither has sent me any response.

Plenty of questions remain. Is UMG the only entertainment company YouTube has this type of agreement with, or are there others? What are the conditions of these agreements? Does YouTube have any policies or procedures in place to protect users, or has it essentially given these companies a carte blanche to take down any video they wish with impunity?

For now, it is difficult to understate how badly YouTube has screwed over its users here. Instead of standing up for users’ free speech rights, YouTube has sold them out to big entertainment companies, who now have the power to take down any video they wish by bogus assertions of copyright, with absolutely no accountability.

For all Google’s “don’t be evil” mantra, it appears that the depths to which Google is willing to sink to kowtow to the major record labels at the expense of its users’ rights truly knows no bounds.

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New Media Rights appointed to FCC Consumer Advisory Committee

New Media Rights' consumer and internet user advocacy efforts were recognized this week with the appointment of to the Federal Communications Commission’s (FCC) Consumer Advisory Committee. The FCC committee works to serve the interests of consumers by soliciting their input during the regulatory process and working to improve consumer access to modern communications services.

New Media Rights, which often takes part in regulatory proceedings at the FCC and U.S. Copyright Office, looks forward to bringing our internet user, consumer-first approach to the Committee.

New Media Rights Founder/Executive Editor Art Neill

“Our appointment to the FCC’s Consumer Advisory Committee gives us a place where we can share the concerns of internet users and consumers directly with regulators,” said Neill. “Good public policy starts with actually knowing what’s happening on the ground. New Media Rights focuses its efforts on helping a variety of consumers and creators often left out of conversations about public policy that affects them.”

New Media Rights recently defended San Francisco artist Jonathan McIntosh in a copyright dispute with Lionsgate Entertainment over the unlawful takedown of McIntosh’s popular “Buffy vs. Edward: Twilight Remixed” video. The program also offers copyright, licensing, and trademark expertise to internet users and independent creators, and advises consumers on how protect their privacy.

In addition to providing a much-needed voice for consumers on the FCC committee, we're excited about the hands-on training opportunities our appointment will create for California Western students interested in practicing internet and media law.

“The Committee tackles a variety of subjects, from broadband internet accessibility to improving consumers’ interaction with the FCC,” said Neill. “Through this work, New Media Rights legal interns will have an opportunity to be exposed to the regulatory and policy side of the one-to-one work they’re doing with NMR.”

To learn more about how you can support New Media Rights’ mission, click here.

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New Media Rights to speak on webcast DMCA panel hosted by NAMAC and the Daily Dot

 

New Media Rights will be speaking on a live webcast panel March 27 about the DMCA and its impact on artists and creators.  You can watch it at the link below  The panel is hosted by The National Alliance for Media Arts and Culture  and The Daily Dot and will be held in a Google Hangout live at 12pm Pacific, 3pm Eastern March 27.  Specifically, we'll discuss the DMCA and the various ways its safe harbor and anti-circumvention provisions affect creators directly.

Check out the full details here.

 

Interacting with the Digital Millennium Copyright Act (DMCA)

An InterActs Live Google Hangout
Hosted by NAMAC and The Daily Dot

Wednesday March 27 at 3 PM EST/ 12 PM PST

Watch the conversation live right here!

Join the conversation on Twitter via hashtag #InterActs

If you've ever gotten a takedown notice on your YouTube account, had your DVD player or other software tell you that the movie you're trying to watch is rights-restricted, been the victim of a false copyright claim, or tried to watch Buffy v. Edward but couldn't find it or found it littered with ads, then you know how confusing and frustrating the concerns regarding the Digital Millennium Copyright Act (DMCA) can be.

According to the Electronic Frontier Foundation, the DMCA contains two main clauses that have been most at issue in creative practice:

"The 'anti-circumvention' provisions (sections 1201 et seq. of the Copyright Act) bar circumvention of access controls and technical protection measures. The 'safe harbor' provisions (section 512) protect service providers who meet certain conditions from monetary damages for the infringing activities of their users and other third parties on the net.

Join The Daily Dot and NAMAC in our next InterActs panel, for a lively and interdisciplinary conversation with creators, fans, educators, and tech and legal experts, to discuss how these two clauses of the DMCA are being used (or misused) by copyright holders and impacting (or threatening) creators' fair use of copyrighted material. In this engaging round table, we'll discuss the victories and challenges in protecting fair use and extending DMCA exemptions across media arts disciplines, and get to know the community that is staunchly and successfully protecting creators' rights.

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Google Deletes "PS Gay Car" - Help get it back online

New Media Rights recently hit a dead-end in an attempt to resolved what seemingly should be a routine issue: a band of hobbyist musicians, Fortress of Attitude, had a Youtube video that got misflagged by an automated Youtube takedown system. They were unfairly accused of violating Youtube's terms of service. Below, Pat Stango of Fortress of Attitude describes the 3+ month process of attempting to get his video human-reviewed and reinstated. Like our work with Jonathan McIntosh, Pat's story highlights area where Youtube's technology, support, and legal department can improve its practices.

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Hello people of the internet,

My name is Pat Stango, and I’m a member of New York City-based comedy group/ rock band “Fortress of Attitude.”  Don’t worry, we're not here to plug our upcoming shows or sell you some band merchandise. (Though we DO still have a few hundred T-shirts with our name spelled wrong, if anyone is interested.) Instead we need to let you know about a very difficult situation we’re going through with YouTube/Google regarding a music video being taken down unfairly. WAIT! Don’t leave yet. This situation could totally happen to you too.

On Nov 17, 2012, we uploaded our newest Fortress of Attitude video to YouTube, entitled “PS Gay Car.” You can view a (lo-resolution) version of the video here at Funny or Die.

We wrote the song several years ago, using the exact words of a mean note we found on our car one day and turning it into a rocking tune. Eventually we self-produced this music video, and after lots of hard work came away with something very fun with a pro-gay message. The “PS Gay Car” video caught on quickly, and was featured on several popular websites:

Thanks in large part to that media attention, the video gained 39,800 views in its first month on Youtube! 

And then a month later YouTube took down the video. Oh boy.

 

 

We received one form email from YouTube on December 19th, 2012, stating that the video was in Violation of TOU #4 Section H. Basically, they said that we had used some sort of outside service to gain fake or robot views, thereby violating their terms of service.

 

 

So, note up front: we 100% did not engage in any activity of that sort. First of all, our group policy is that robots are scary and will someday enslave us all, and therefore we do not engage in any activities involving robots—especially activities such as artificially inflating YouTube views.

Secondly it is very clear why the video had gotten its views. Popular websites posted the video, thereby putting it in front of their readerships, and it was spread around. As a group we did nothing more than email the link out to our mailing list, post it on our Facebook pages, and send it to these media outlets. Trying to create artificial views for our work is not something we would do, and it also seems like WAY too much work.

So obviously there was some sort of accounting mistake on YouTube’s part. And hey, they’re responsible for monitoring millions (billions?) of videos per day, so I get it: MISTAKES HAPPEN. They flagged our video incorrectly. Surely, I assumed, I could contact Youtube, explain the mistake, and they would put our video right back up.

 

 

Flash forward four months later, and that has certainly not been the case.

After receiving the initial email I searched for a way to contact YouTube/Google and it turns out, there really isn’t any way to do so. The closest I could find was the “Send Feedback” function on their site, but that elicited no response. Google has absolutely no protocol in place for users to plead their case.

Luckily, we then found the fine folks over at the New Media Rights, and after becoming emotionally moved by our case (I imagine they cried quite a bit), they agreed to contact Google’s legal department on our behalf for free.

Although they told me that YouTube very rarely reinstates videos in situations like mine, after I saw the well-reasoned email they wrote on my behalf, I was hopeful. New Media Rights spent a few pages explaining our case and showing why Google had obviously made some sort of mistake.

In response they got this:

 

 

On the downside, it was a form letter. On the upside, they actually got a response. Undaunted, New Media Rights kept responding and following up.  After a week of Youtube sending the same form letter, Youtube sent this on February 19th:

 

 

Progress! At least it wasn’t the same form letter anymore. And their response made it seem a real person was finally reading these emails. New Media Rights kept going, and I was hopeful...

 

To Youtube Legal:

This email is in response to the form letter received by support on February 19th in regards to Youtube user FortressOf Attitude. I hope this clarifies some issues. Is there anyone who can specifically attend to the points in our emails?

You are ultimately responsible for your traffic, so fully research any service that promises to promote or curate your YouTube channel.

No-one curated or promoted the video or the channel. It has already been in 100% control of Pat Stango (the user who runs the FortressOf Attitude account). 

YouTube cannot audit or certify specific 3rd party programs to verify that they comply with our policy. 

No non-organic promotion techniques were used. There is nothing to verify or certify.

If we determine that suspicious actions are being done by a specific entity, they risk being blocked from our service and accessing our APIs, and having any related accounts suspended.

The major point of our initial email is that Youtube's algorithm for determining suspicious actions, for whatever reason, made a mistake and flagged the video, P.S. Gay Car <http://www.youtube.com/watch?v=gOnnoTiX05w> inappropriately for a Section H violation. It has never been promoted or curated by a third party. No views have been falsified.

Again, Youtube has a legal obligation to enforce its terms fairly and accurately, so we're asking you to human review this error and fix it. 

As I said before, although this may not be of huge importance to YouTube, this is important to Pat to be resolved. The Section H violation email he received, explained that if a terms violation were to happen again, Youtube would delete their entire account. Since this first terms violation was a false flag, you can understand how this may be scary to a group that has spent time and money contributing to the Youtube community. They are afraid that if Youtube makes another "mistake" their account could be deleted at any moment.

Please human review my previous emails or the original emails with the extra explanatory details of this situation. I look forward to clearing up this situation amicably. You may contact me at support@newmediarights.org, via my cell phone at XXX-XXX-XXXX, or by replying to this email.

…until Youtube responded with this on March 7th.

 


Wait? What “reasons” were “previously stated?” We investigated further:

Hi legal,

While we appreciate that this letter was not a form reply, and we acknowledge YouTube's interest in keeping it's system clear of robot-generated views, I want to make it clear that there were no "reasons" stated for not restoring the content, only conclusions.

Our claim is that the video in question was falsely flagged due to a mistake with the Section H takedown algorithm. We assert that there was no service involved in promoting the Youtube channel or video. You reason (copied below) doesn't respond to this at all.

You are ultimately responsible for your traffic, so fully research any service that promises to promote or curate your YouTube channel.

Instead, it just suggests again that there was a service involved hired by Pat to artificially inflate the view counts of his videos.

We simply want a reporting of why this was flagged when there were no activities that violated the terms of service going on. A simple human review of the video's traffic sources will probably show very quickly that all of the traffic generated to the video was appropriate.

And that was over a week ago. That email on March 7th was the last thing we’ve heard from Google.

So despite New Media Rights’ persistence and best efforts for more than a month, so far they have received nothing more than automatically generated form responses that do not address any of the specifics of our situation. Which leads to two conclusions:

  1. Google has no human employees. They are all ROBOTS.
  2. We’re not going to be able to get this video reinstalled (and our good names cleared) without the help of the public.

So you might be asking yourself: “What’s the big deal about getting this silly video case resolved? Why should I spend my time on this instead of, I dunno, helping poor children in Africa?” To that we say, yes, if you need to choose between publicizing our unfair situation with Google OR helping to feed a poor child, definitely do the latter. But you can probably do both!

There are a few reasons why this case is so important to us. Firstly we are basically hobbyists, and we spent a great deal of time, effort, and our own money in making this project. All the actors in the video were paid, as was the owner of the car. As silly as it seems, the moderate success of that video was very important to our fledgling comedy group. View counts are an important tool in pitching media agencies, trying to land touring gigs, etc.

Even more importantly, YouTube's initial email also told us that if this were to happen again, they would delete our entire account. This is frankly terrifying, because that account contains several years of our work (videos, views, subscribers, etc) and since this first violation was obviously a mistake on YouTube's part, that theoretical second violation (and account deletion) could come at any moment through no fault of ours at all.

Basically, ours is a case showcasing how YouTube can delete the work and the accounts of their users on a whim, without any chance for users to plead their case. (Hell, without any chance to interact with a live human at the company.) Frankly, we think it’s crazy for a business, with millions of users and customers around the world, to act in this manner and to be so unreachable.

We’ve been told there are a lot of other people that also got mistakenly caught in this Section H filter on the same day. We feel bad for those people because they’ve had to pay lawyers $100s an hour only to get those same form responses from Youtube’s legal department. At least we found lawyers who would help with this for free.

And aside from all that, “PS Gay Car” is an extremely positive, fun video with a very pro-gay rights message, and it’s terrible that viewers don’t have the option to enjoy and spread it around on YouTube.

Therefore we ask you, oh nameless faceless readers of this rambling letter, to help bring this issue to a wider attention. Tell Youtube that you don’t think it’s right for them to delete their users’ work in such an unfair manner. SPECIFICALLY tell them you want “PS Gay Car” to be reinstated immediately. Tweet and Facebook this post! (We’ll be tweeting @Google and using the hashtag #PSGayCar on tweets about this.) And then, if someday “PS Gay Car” does get rightfully reinstated, please like the video and share with your friends. (If you want to.)

Sincerely,

Pat Stango, Gregg Zehentner, Scott Barkan, Clayton Gumbert

Fortress of Attitude • FortressOfAttitude.com

 

PS. New Media Rights put a lot of work into trying to get our video back up for free and even helped share the story with the press. They’re a great organization, and it would be awesome if you could support them by donating a few bucks so they can help other people like us in the future. 
 

 

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The Copyright Alert System and a meeting the Mayor of San Diego! - March 2013 Newsletter

New Media Rights Homepage - logo

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In this issue:

  • Understanding the Copyright System
  • New website content and educational guides
  • A meeting with the Mayor
  • Upcoming Events
  • Job opening: Staff Attorney Fellow


Understanding the Copyright Alert System:
Last week, a number of the major internet service providers in the United States, including AT&T, Verizon, Comcast, and Time Warner, began implementing the "Copyright Alert System." The system allows content providers like large media companies (i.e. Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA] ) to police your Internet Service Providers's networks for copyright infringement. This means they monitor Internet traffic, and when potential copyright infringement is identified, the copyright holder will send your IP address so that the ISP will notify you. From there, the ISP will engage in a series of escalating warnings and actions with internet subscribers intended to discourage digital "piracy."

You can read our new FAQ to learn more about how the new system may affect you as an Internet user, and how to ensure that the system isn't abused.


New website content and guides

We've been working on the NMR website by updating content and adding new educational guides.  We base our work on guides on input we get from you, our community, and the clients we serve, about the practical questions that creators and internet users need answered..

Our new FAQ about student's First Amendment speech rights in public high school. It includes topics like whether students can be censored for their speech on campus or off campus

We work so hard on helping folks that its hard to keep up with telling you about all the things we've accomplished.  To remedy this, we've updated our "About Us" page with a timeline of our accomplishments

We've also added a press page so you can keep up with our mentions in the media quickly and easily.
 

Meeting with the Mayor

On Friday, March 8, New Media Rights and tech startups from Ansir Innovation Center were invited to meet with San Diego Mayor Bob Filner to discuss the needs of startup tech companies here in San Diego. Art Neill represented New Media Rights, and shared the work we're doing with Mayor Filner. The group as a whole discussed the need to find ways for startups to better interface with the city, as well as various ways the City could foster its local startup community.


Upcoming Events

Meet with NMR at March Mingle in San Diego, CA on Wednesday, March 13th
New Media Rights will be at this year's March Mingle IX on March 13, 2013 from 7:00PM – 9:00PM. The event will be at ScaleMatrix at 5775 Kearney Villa Road, San Diego, CA 92123

Since 2004, March Mingle has brought together 100's of people each year from the San Diego tech community for a night of networking, food, drinks, and relaxation. Organized by the folks at San Diego Tech Scene, March Mingle brings together developers of all flavors together for San Diego’s annual “Technology Woodstock” or “Ultimate Geek Happy Hour.”  Hosted at a local venue and conducted without sales or technical presentations, you are invited to talk shop, trade war stories, and munch on finger food while enjoying the evening with San Diego’s finest technologists. Plus, there's a raffle with prizes.

A full list of all of the San Diego tech groups invited to participate can be found on the event's official site: marchmingle.com
 

The American Association of Law Schools Transactional Clinical Conference on April 5-6 in Austin, TX

New Media Rights' Art Neill will be speaking on the closing plenary panel at the AALS Transactional Clinical Conference in Austin, TX.  The conference is a great place for folks that work with law students in transactional clinics across the country to come together an learn from one another.

The National Conference for Media Reform, April 5-7 in Denver, CO

NCMR is a bi-annual conference attended by thousands of folks in media reform field, and is taking place in Denver, CO this year.  Visit their site for more info 
 

Job Opening: Staff Attorney Fellow

We're excited to announce we have a new position opening at New Media Rights as of today for a Staff Attorney Fellow!

Please share this information with any attorneys or recent law school graduates that have a passion for public interest and internet law.  This is a paid position.  The position is open immediately and we are accepting applications only until March 22nd.

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Job Opening: Staff Attorney Fellow

We're excited to announce we have a new position opening at New Media Rights as of today for a Staff Attorney Fellow.

Please share this information with any attorneys or recent law school graduates that have a passion for public interest and internet law.  This is a paid position.  The position is open immediately and we are accepting applications only until March 22nd.
 
Here's the details:
 

This is a long-term, full time, temporary position that may last up to one-year.

New Media Rights, a program of California Western School of Law, is seeking an individual who, under the direct supervision of the New Media Rights ExecutiveDirector, will supervise and manage student legal clerks while providing transactional and preventative legal services in the fields of intellectual property, media, and cyberlaw. The individual should have a J.D., be a member of the California bar or have immediate plans to take the California Bar, and have an interest in IP, media, entertainment, and communications law.  The ideal candidate will also have strong computer skills as well as a basic operating knowledge of marketing and public relations, website and database management, and non-legal project management.

 
The Staff Attorney Fellow would 
(1) Supervise students in providing one-to-one legal assistance to individuals, draft educational guides, and draft public policy comments to regulatory bodies on Intellectual Property, media, and communications law related issues. 
(2) Speak in the community to consumers and creators about digital and internet rights related issues. 
(3) Assist in meeting the objectives of any grant awards as well as draft and submit grant applications. 
(4) Strategize and execute NMR's social media and web presence. This includes managing NMR’s contact database, and social media profiles.
(5) Manage NMR's intake process and determine which cases are worth pursuing.
 
Qualifications:
 
● J.D. and bar passage or immediate plans to take the California Bar required
● Prior experience with transactional work in one or more of the following legal areas: intellectual property, cyberlaw, entertainment, media & communications law is preferred.  Litigation experience in these areas of law is also preferred.
● Legal or non-legal supervisory experience preferred. 
● Ideal candidates have additional non-legal skills that will assist with the administration of the Project. These may include: fundraising, marketing, design, website management, or video production. 
● Must be comfortable working independently with minimal instruction 
● Occasional evening and weekend hours necessary.
● Basic operating knowledge of Windows and Excel is required; and, must be highly proficient in Word, Google Apps, Facebook, Twitter, and website management.
 
How to Apply:

Interested individuals should provide 1) a cover letter describing their interest in and qualifications for the position, and salary requirements, 2) a resume, and 3) a legal and non-legal writing sample to: Art Neill, Executive Director of New Media Rights, at support@newmediarights.org by March 22nd, 2013. The search will continue until the position is filled.

 

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Internet User's Guide to the Copyright Alert System "Six-strike" policy - FAQ

Just this week, a number of the major internet service providers in the United States, including AT&T, Verizon, and Time Warner, began implementing the "Copyright Alert System."

 

What is the Copyright Alert System?

The system is an anti-piracy approach where your Internet Service Provider allows content partners, typically large media companies (i.e. Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA] ) to police the ISP's networks for copyright infringement. This means they monitor Internet traffic, and when potential copyright infringement is identified, the copyright holder will send your IP address to the ISP and request that the ISP notify you. The ISP will engage in a series of escalating warnings and actions with internet subscribers intended to discourage digital "piracy."

 

Does my Internet Service Provider have to participate in this system?

No.  This is not a requirement based on any law. Instead, it's an agreement that the large Internet Service Providers have voluntarily chosen to participate in. The existing law, specifically the Digital Millenium Copyright Act, already protects intermediaries like Internet Service Providers from liability and says they do not have to police their networks for copyright infringment. Nonetheless, ISP's have decided to participate in this program. 

 

If it's not required, why would ISP's monitor and police internet traffic?

There's a few reasons, but primarily because 1) many ISP's like Comcast and Time Warner are also large copyright holders and 2) despite the protections of the DMCA, ISP's want to make sure to avoid lawsuits from large media companies.

 

How does the "Copyright Alert System" work?

The policy may vary a bit from ISP to ISP, so you should keep an eye out on your email since some ISPs will be sending notice to internet subscribers about their policy.  You can see the approach some of the specific ISP's are saying by visting this post on Mashable.

In general though, the first time that ISPs find that your account has been used to download allegedly illegal materials from peer-to-peer networks, you will like receive an notification by email probably telling you you're doing something illegal, and providing basic "education" on copyright law. The second offense typically will be either a) another email notification that requires you to acknowledge receipt, or b) an educational call from your ISP.

The system continues to escalate on each notice.

The third and fourth warnings will likely require you to watch a video and confirm you've viewed it before getting online.  It may also be a simple redirect from certain web sites to an educational video.

For the fifth and final sixth warnings, ISPs range fairly significantly on their approaches.  Approaches range from throttling your bandwidth, to temporary suspension of internet access, to redirection to a new landing page, to a personal instructional phone call with an ISP representative.

 

What doesn't the Copyright Alert System do?

As of now, it does not appear that the Copyright Alert System will be used to get ISPs to provide your personal information to large media companies.  Large media companies should still need a subpoena or court order for that.

It appears the system is focused on tracking public Bittorrent trackers.  Lifehacker has suggestions about anonymizing Bittorrent traffic or making use of virtual private networks

 

Are there any problem's with the Copyright Alert system?

We think so.  The system highlights the uncomfortably close connection between ISP's and lage media companies, which are often one in the same.  It shows the kind of control that large media companies can exert over the internet.  

ISP's have no responsibility to do large media company's copyright policing for them, but they've chosen to get into that business anyway.

In addition, as with all anti-piracy systems, there are bound to be legal or fair uses of content that are misidentified as infringement.  

We'll be keeping a close eye on how the system is implemented by the various ISP's, and will be looking to make sure the new system respects legal, fair uses of content.

 

What if I receive a notice from the Copyright Alert System?

If you have questions about the notice you received, you can contact New Media Rights for an explanation or to help you get your ISP to remove the strike.

 

More information: Here's just a few articles on the new Copyright Alert System

http://www.forbes.com/sites/kashmirhill/2013/02/25/copyright-alert-system/

http://www.technologyreview.com/view/511841/the-six-strikes-copyright-alert-system-is-toothless/

http://lifehacker.com/5986961/the-copyright-alert-system-how-the-new-six-strikes-anti+piracy-program-works

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Our 2012 accomplishments, and what we're working on in 2013

A summary of New Media Rights in 2012


New Media Rights continued its non-profit work providing free and dramatically reduced cost one-to-one legal services in Internet, intellectual property, media, and technology law. We renewed our mission to stand up to internet censorship and those who use legal processes to bullies independent creators and average internet users.

 

How New Media Rights grew in 2012

 

  1. We assisted 400 tech & media law inquiries (copyright, free speech, media, and internet law matters) with free or reduced cost legal services while utilizing an annual budget of less than $150,000.
  2. An example of one of the issues we worked on in 2012, New Media Rights helped reinstate the popular Buffy vs. Edward video after it improperly monetized and then taken down by YouTube’s Content ID system.
  3. We released over 13 hours of educational video that has been cumulatively viewed more than 100,000 times including a series of videos explaining copyright law and LAGD, a series that features advice from established developers on how to avoid legal problems in the industry.  
  4. LAGD got #1 spot on Reddit games. We put together a fundraiser to support this work and these videos where we raised more than $4,000.
  5. We worked with the EFF in the recent DMCA “anti-circumvention” proceeding and provided the direct evidence needed to secure important exemptions for smartphone users and independent creators.
  6. We provided more than 15 workshops in California to independent creators and Internet users.
  7. We educated 5-6 law students per semester [Fall, Summer, and Spring] in public interest internet law issues
  8. By providing specific stories to the Copyright Office, we helped protect users’ rights to jailbreak or root their mobile phones and the rights of video creators on YouTube. We partnered with other organizations like EFF to ensure these rights were protected for another 3 years.

 

Looking Forward

 

While we are able to accomplish so much with a small staff of two full-time employees along with a few interns, volunteers, and fellows, we have high hopes for what we are able to achieve in 2013.

  1. Helping over 400+ individuals around the world with internet-specific legal matters, especially with unjustified takedowns prompted by YouTube’s Content ID system.
  2. Sponsoring and organizing more than 10 workshops and community events throughout the San Diego region and throughout the United States about digital rights. For example, in 2013, New Media Rights was a sponsor of San Diego’s Start Up Weekend.
  3. Working on policy initiatives to reform copyright law in a way that helps the Internet continue to be a thriving force of information and distribution for users and independent creators. This includes commenting on the direction of the proposed “copyright small claims court.”
  4. Considering litigation on behalf of Internet users and creators to correct abuses committed by legal bullies.

 

Significant events of 2012

 

  • May 17 - NMR testifies before the Copyright Office in support of Jailbreaking and Video fair use exemptions to DMCA.
  • July 1st - Partnered with California Western School of Law. This partnership was beneficial because the school provides administrative support, so 100% of all donations now go directly to program and core work.
  • October 30 - Copyright Office announces two DMCA exemptions advocated for by NMR are granted. NMR attended and testified at the Office's May hearings in Los Angeles.
  • November 12 - Launched educational video series for independent game developers (LAGD), which includes over 13 hours of free, openly licensed video content.
  • November 16 - New Media Rights sponsors local innovation event - Startup Weekend San Diego
  • November 21 - Indiegogo fundraiser launched to expand our services for game developers. More than $4,000 raised.
  • November 26-27 - NMR testifies at Copyright Office hearing in Los Angeles on potential copyright small claims court. Our input was recently covered on The Register and Techdirt.

Significant press in 2012


You can see all of our recent press on our press page.

  • Cover of San Diego Citybeat – Dave Maass details New Media Rights’ fight to defend the rights of bloggers, musicians, filmmakers and programmers.
  • Joystiq – Joystiq editor Jessica Conditt explains the free legal services New Media Rights provides to independent developers.
  • Techdirt – NMR Executive Director Art Neill explains how a small claims court for copyright infringements may seem appealing, but could actually hurt independent creators more than help them.
  • Comics Bulletin – Shaun Spalding, attorney for NMR, answers questions about General Partnerships.
  • Penny Arcade – Shaun Spalding provides advice to independent developers are starting a new studio.
  • Ars Technica – Remix video artist Jonathan McIntosh details how New Media Rights helped him reinstate his remix video

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How we defeated Lionsgate's unfair takedown of Buffy v Edward, and our next battle

As you may have heard, New Media Rights recently assisted pop-culture hacker and remix artist Jonathan McIntosh (RebelliousPixels.com) in his battle with Lionsgate over the improper copyright takedown of his well known Buffy vs. Edward: Twilight Remixed video.
 
Jonathan's story is most interesting, because Jonathan had recently shown the Copyright Office the video in a hearing about copyright exemptions last May where New Media Rights was advocating for your right to reuse video under fair use. In one of its findings, the Office praised the video as an example of innovative fair use that copyright exemptions are there to protect. 
 
Jonathan's battle, and our experience working with folks one-to-one suggests there are large media companies that intend to blindly monetize every reuse of content, even if it means steamrolling fair use and the freedom of speech. 
 
Due to Jonathan's compelling post, and supporting coverage from ARS Technica and people like Mike Masnick of Techdirt, we were able to resolve his issues, and now Jonathan's Buffy Versus Edward: Twilight Remixed is back on Youtube, viewable without ads.  Forbes also covered this victory.
 
How we can keep this work going

First of all, we want to thank all of our new donors from our November crowd-funding campaign as well as those who donated in January who help continue to fund this type of work. 

Between new donors and new newsletter recipients, this email welcomes nearly 250 new people to the NMR community in the last two months alone!

Despite a recent temporary groundswell of support from individuals, what we do is still not sustainable in the long term without institutional grantors.
 
Right now, we're in search of foundation partners and institutional donors to support this work going forward. Defending independent creators and consumers against bogus legal threats is unfortunately a growing problem that has outstripped our ability to handle many of the people requesting our assistance. If you have any leads for foundations or institutional donors interested in supporting and expanding this work, please send them our way.
 
The recent story about Jonathan McIntosh's case is just the tip of the iceberg. We've assisted over 300 people in the last 12 months with issues, most of whom we cannot discuss due to confidentiality, but all of whom have stories just as compelling as his.
 
Moving forward - Youtube's Terms of Service, paragraph 4, Section H
 
We're about to embark on another Youtube related issue: getting some of the filmmakers, non-profits, journalists, and activists whose videos have been taken down recently due to Youtube's automated "Terms of Use Section H" violation takedowns who actually did not violate those terms of use. 
 
This issue affected most likely thousands of Youtube users who were caught in the automated filter taking down their videos and closing their accounts, but did not violate Youtube's terms of use with bots or automated views. Over a dozen reputable cases of this came to us in December alone. 
 
I encourage you to connect with New Media Rights on Twitter, Facebook, and Youtube to stay up to date with that issue.
 
Thanks again for being part of the New Media Rights community, and keep an eye out as our future battles against for independent creators develop.

All the best,

Art Neill, Shaun Spalding, and the entire team at New Media Rights

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