Executive Director to speak at UC Irvine School of Law Entertainment and Technology law Symposium

New Media Rights Executive Director Art Neill will be speaking at the March 28 UC Irvine School of Law Entertainment and Technology Law Symposium.  Art will be on a panel of experts regarding the FCC's recent decision to implement Open Internet rules by reclassifying broadband under Title II.

You can find more information here.  Here's some of the details.

Bridging a Troubled Stream: Confronting Legal Issues at the Nexus of Entertainment and Technology

Saturday, March 28, 2015, 9:00 a.m.–4:30 p.m.
EDU 1111, UC Irvine School of Law (map)

This symposium will examine current legal issues at the nexus of entertainment and technology in a rapidly changing digital frontier. The internet has given the public unprecedented access to digital information, and it has forced the entertainment industry to come to terms with the reality that it no longer retains the control over the distribution of its wares that it once did.

Experts from the legal, technological, business, media, entertainment, and government sectors will all come together at this symposium to discuss the consequences of legal decisions on access to entertainment in the internet age. The panelists at this symposium will explore questions that directly affect the way consumers access entertainment, how artists and entertainers create content, and the future landscape of entertainment and information distribution.

This conference will feature three panels and a keynote speaker with networking breaks between the panels and thereafter. Each panel will have roughly three speakers and one moderator, allowing for ample time for each panelist to speak.

Panel Topics
Remote & Cloud-Based Television Services Post-Aereo
ASCAP/BMI Consent Decrees in the Age of Digital Distribution
The FCC’s Vote on Net Neutrality: Implications, Predictions, and Perspectives

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Domain names aren't protected by trademarks and other myths

At New Media Rights we often get questions about domain names and trademarks. Many of these questions are the result of some deeply held myths about the use of trademarks in domain names. In this blog we’ll explore & debunk some of these key myths.


Myth: Domain names can’t be protected by trademark law.
Truth: Domains containing trademarks can be protected by trademark law.

This is one of the biggest myths related to trademarks and domain names, and is a byproduct of the complicated history of the protection of domain names. In the early days of the internet, it was a common practice for individuals to buy up top level domains (like .com or .org) of existing trademarked brands or slight misspellings of those brands. Not only was it an easy way to bring in advertising revenue, but many individuals were successful in selling those domains back to major brands at a hefty profit. Some also used it as a way to disrupt a competitors business.  Understandably, this made owners of major brands very upset. To these brands it seemed wrong that someone could profit off a domain using their trademark. But in the early 90’s it wasn’t exactly clear how trademark law or the law in general could be used to stop this behavior.


As a result a number of laws were passed to remedy the situation, the most prominent of which is the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d). This law essentially prohibits buying a URL with the bad faith intent to profit off someone else’s trademark.  For example buying cocacola.exposed with the hope of selling the domain to coke to make a profit would be an example of cybersquatting not permitted under the act.


In addition to the ACPA, The Uniform Domain-Name Dispute-Resolution Policy (UDRP) run by ICANN is another out of court arbitration process that can be used to resolve disputes about cybersquatting. Although not identical, the standard’s for what Cybersquatting is in a UDRP action is very similar.


Myth: Domain names are protected by copyright law.
Truth: Domain names are not protected by copyright law for more information on why check out our copyright FAQ "Is a domain name subject to copyright law?"


Myth: There are absolutely no circumstances where you can use a company’s trademark in a domain
Truth: There are a few, relatively narrow, exceptions that could allow you to use someone else’s trademark in your domain.

 

  • First Amendment: Using the trademark in the domain of another company to parody, satirize or otherwise express opinions about a company will likely be protected by the first amendment.  Taking the example used above let say you wanted to buy cocacola.exposed but instead of selling it, you wanted to develop a website that discussed the potential health risks related to drinking coca-cola and other drinks produced by the company. That use would likely be protected under the first amendment particularly if the website was also non-commercial.
  • Descriptive: The descriptive use defense comes into play when using a trademark for its plain English meaning.  For example registering Marlins.com for a site all about fishing for marlins would be using the word marlin for its plain English meaning.  Although the Miami Marlins have a trademark on “Miami Marlins”, trademark descriptive use would allow for the registration and use of Marlins on a site all about the fish.
  • Nominative Use: The Nominative use defense comes into play when: (1)The product or service being identified can’t be readily identified without its trademark; (2)The usage of the trademark is limited to what is needed to identify it; and (3)No sponsorship is implied by using the mark. Because meeting all of these factors in a URL is challenging this defense comes up less often but is still possible. For example, let’s say a shoe shop at the URL www.shoes4u.com had a page where they listed all of the Nike shoes they have for sale located at www.shoes4u.com/Nike. Provided there was nothing on the page itself implying Nike’s endorsement  this would likely be considered normative use because Nike shoes cannot be identified without their trademark , the use is limited to what is necessary to identify the shoes as Nike shoes and no sponsorship is implied by using Nike.

Trademark law and cybersquatting are complicated issues and best discussed on a case-by-case basis. If someone has stolen your domain name, someone has accused you of misusing their trademark in your domain name, or you’re unsure whether or not you’re cybersquatting please consider reaching out to an attorney for assistance.

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Staff attorney to speak on "Ethics and Laws in Border Reporting" panel hosted by The National Association of Hispanic Journalists San Diego/Tijuana chapter

The National Association of Hispanic Journalists San Diego/Tijuana chapter has put together an exciting panel, including our own Staff Attorney Teri Karobonik, which will cover ethical and legal issues related to border reporting. The panel will also discuss what border stories we need to start telling focusing on case studies from the panelists and end with a Q&A.

The panel will take place Saturday March 21, 2015 from 11a.m.- 1p.m.  in U-T San Diego's 3rd floor Meeting Room.  Click here for more information.

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Basics of Copyright & Trademarks for Entrepreneurs: Free Workshop Feb. 26, 2015 @ Ansir Center San Diego

Want to learn more about the basics of Copyright, Trademark, and how they affect your startup or small business? Join Executive Director Art Neill on 2/26 at 5:30pm for 4th Thurs @ Ansir Innovation Center to learn how to avoid key startup ending mistakes with your brand, IP, and other creative assets.

You can RSVP and learn more:http://www.meetup.com/AnsirSD/events/220094205/

This free workshop is open to the public and we want to thank the San Diego Economic Development Department, whose support made this workshop possible.

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Déjà vu: Viacom removes Jonathan McIntosh's Daily Show remix with 2nd abusive DMCA takedown notice

Recently, (and just in time for Fair Use Week 2015)remix artist Jonathan McIntosh ( a New Media Rights client and Advisory Board member) has been facing off with Viacom. Viacom sent a second abusive DMCA takedown to the same video, despite withdrawing a DMCA takedown back in 2013.  With our help, Jonathan is appealing the takedown and working to restore the video. The incident highlights the many abusive DMCA and copyright related takedowns New Media Rights has seen over the years, often from large media companies like Viacom. 

Here's Jonathan's story in his own words (link to original and coverage on Techdirt):

On February 3rd 2015 my remix video entitled "Too Many Dicks on the Daily Show" was removed from YouTube via a bogus takedown from Viacom claiming copyright infringement.

The remix is a transformative work critical of the gender disparities on The Daily Show and constitutes a fair use of copyrighted visual material as provided for in section 107 of the US copyright law.

This is the second time Viacom has abused the DMCA takedown process to prevent this particular fair use video from being seen. It's especially ironic considering each episode of The Daily Show relies on the fair use doctrine in order to satirically comment on mainstream news broadcasts. I am currently appealing this latest takedown with the help of my attorneys from New Media Rights.

Back in August 2013, after nearly 2 years on YouTube, my remix was also removed without warning by Viacom claiming infringement for "visual content" from The Daily Show. I immediately informed my attorneys at New Media Rights who in turn contacted Viacom to inquire about the takedown. Quickly thereafter I received an automated message from YouTube stating that Viacom had rescinded their copyright infringement claim. Viacom provided no other information or explanation but the video was again viewable on YouTube and so I assumed the matter had been resolved. Roughly a year and a half later I find myself dealing with the same exact situation.

As I explained in my original blog post, the video is presented as an episode of The Daily Show with Jon Stewart which is interrupted by a remixed critique of the show's gender imbalance and "boys' locker room" comedy stylings. The remix was created with clips borrowed from over 100 episodes of The Daily Show combined with a portion of the Flight of the Conchords song "Too Many Dicks on the Dance Floor" in order to subvert both sources.

Made in 2011, the video was meant to highlight the lack of women in on-screen or leading creative roles on The Daily Show over its 17-year run. At the time only 3 of the 12 regular correspondents/contributors on The Daily Show were women. Only 2 of the 16 writers were women and the numbers have not improved much in the 4 years since I published the critique (although Jessica Williams is a brilliant addition to the cast).On both occasions Viacom has abused the DMCA takedown system to remove my video, which has resulted in an unjust strike placed against my YouTube account. On both occasions I've been temporarily locked out of my channel and forced to attend YouTube's copyright school and pass a test on fair use. This is particularly patronizing since just over a year ago YouTube invited me to their space in Los Angeles to give a lecture on transformative storytelling and to specifically highlight the fair use questions that arise when remixing video footage for the purposes of political parody.

I should also note that YouTube currently features another one of my remix videos as an example of fair use video on their official page explaining the fair use doctrine to their user base.

Again, I'm in the process of trying to get my video back online. For now you can watch it over at the Internet Archive.

One last note: New Media Rights has offered me invaluable advice and guidance throughout these battles. They are a small, non-profit, two-lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can, please consider donating to them here.

 

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Draft Mission Page

Mission Statement

New Media Rights is an independently funded non-profit program of California Western School of Law 501(c)(3), that provides critical, preventative, one-to-one legal services to creators, entrepreneurs and internet users whose projects require specialized internet, intellectual property, privacy, media, and communications law expertise.You can read more about the types of services we provide, and see examples of the types of clients we work with, by visiting our New Media Rights Legal Services page. To request legal assitance please use our contact form.

In addition to direct, one-to-one legal services, New Media Rights turns what we learn into hundreds of freely available video and written legal education guides.  New Media Rights also turns what we learn into policy work before the Copyright Office and the FCC, to ensure that new regulations reflect the current needs of creators and small entrepreneurs.

Finally, through our partnership with California Western School of Law, New Media Rights trains the next generation of attorneys in cutting edge areas of the law, with an emphasis on the public interest to ensure the next generation of lawyers can help the next generation of creators and entrepreneurs thrive.

We want to thank those who make our services possible, particularly our individual donors, California Western School of Law, and the City of San Diego Economic Development Department.  If you'd like to support New Media Rights as well, check out our page here for a list of ways to get involved.

Testimonials

Testimonials of some of our clients
  • "Without New Media Rights, my latest film would have been in jeopardy.  Instead, it won a standing ovation at the Venice Film Festival, and at IDFA (International Documentary Festival Amsterdam), and is designated a New York Times CRITICS' PICK.  It has also qualified for Oscar® consideration.  

    But back when my team and I were obscure and struggling, I couldn't afford society prices for counsel, and needed an attorney's opinion on many fronts.  My documentary is a research/educational/study "essay film," in which several world-class experts deconstruct and analyze various images from all variety of media.  Fair Use allows us to include these short clips throughout the film.  Getting opinions on Fair Use, creating legal documents, obtaining last minute advice on strategy or bargaining situations, whenever I needed complex help or simple assistance, NMR was there for me."  

  • We're thrilled to announce that one of our clients, the Dark Mod Team at Broken Glass Studios, recently launched the standalone version of their wildly popular open source game, the Dark Mod! Here's is a testimonial from the Dark Mod Team about how New Media Rights helped them launch their game. The Dark Mod is a completely open source, free to download and play game created by hundreds of dedicated volunteers all over the world, and bills itself as "Stealth Gaming in a Gothic Steampunk World."

    It's an example of the best kind of collaborative creativity the internet enables, bringing to together, artists, designers, and programmers from across the planet to create something for the public.  Here's a quote from the Dark Mod

    "In our case, they went into significantly more detail in gathering all the information and aspects of our specific issues, doing hard research on all the legal issues potentially raised, and then packaging it all into a weighty brief that not only answered our most pressing questions, but also was written in a practical way we could actually use as working developers.

    NMR is in the business of assisting digital artists in getting their creations to the world in the right way. There are so many complex issues out there, that by itself the simple desire to do things legally and properly isn't enough. We need guidance. And as my original searches confirmed, I couldn't find any other group that was even looking at the questions we needed answered except NMR, to say nothing of a group willing to offer free assistance in meeting our goals, to say nothing of going to the great lengths NMR went to do it. NMR did all of these things."

    Click here to read their full story of how New Media Rights helped the Dark Mod.

  • Rick Bowman is a San Diego, California based filmmaker, and a client of New Media Rights.  Rick runs a small production company, Backyard Green Films.  He creates documentaries on topics near and dear to his heart, and recently completed a documentary on musician Herschel Sizemore, a pioneer of Mandolin playing and legend in the Bluegrass world.  The documentary has been well received with some great reviews, and is now available via Amazon and screening at film festivals around the country.
     
    When you create a film that includes music, you inevitably run into complicated music licensing laws.  New Media Rights provided critical legal services to make sure this film became a reality.
  • Media Literacy Project is an Albuquerque, New Mexico based nonprofit.  Through education and grassroots campaigns, Media Literacy Project works to help people become “critical media consumers and engaged media justice advocates who deconstruct media, inform media policy, and create media that reflect their lived experience.”

    Sometimes government or corporate interests don’t appreciate their criticism.  Recently, New Media Rights stepped in and helped ensure they were not unfairly silenced.

  • Huy Ly is an entrepreneur and the head of software and web development company Meijun, based in San Diego, California. Here, Huy shares his firsthand experience as a client of New Media Rights. Huy's testimonial highlights the difference legal services can make for tech startups & entrepreneurs early in the process of launching a new service or technology.  Huy calls New Media Rights an "indispensable asset to our development agency, demonstrating reliability, courtesy and professionalism."

  • Buffy vs Edward unfairly removed

    A new year brings new battles for independent creators to share their work.

    Pop-culture hacker and remix artist Jonathan McIntosh (RebelliousPixels.com) explains in this post how New Media Rights is fighting for him in his battle with Lionsgate over the copyright takedown of his well known Buffy vs. Edward remix video.

    New Media Rights is proud to be helping Jonathan fight this battle with Lionsgate over his video.  Asserting the right to make fair use of content simply shouldn't be this hard.

    It is part of a bigger picture development in the world of online video.

    His story, 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. 

    Read the full story to learn more.

    Remember New Media Rights is a non-profit project doing this work on a shoe string budget, so if you support this work please donate now so we can keep advocating for creators like Jonathan!

     

  • San Diego CityBeat, San Diego's alternative newsweekly, published a great cover story this past week about our work at New Media Rights.

    It also has an amazing Street-Fighteresque illustration of a Geek punching a copyright troll. Check it out!

    Read the whole story here!

  • Susan Myrland, an internet user, ran in trouble when an unscrupulous advertising company recreated an old personal website of Susan's without permission, and then incorporated spam advertisements on the site. New Media Rights helped Susan respond to the abuse of her personal information and fix the damage this created, here's how.

  • Michael Colin is a independent documentary filmmaker.  Documentary films often reuse content that already exists, and if that content isn't in the public domain, or licensed, filmmakers sometimes need to rely on fair use under copyright law.  New Media Rights helped Michael analyze the Fair Use issues in his film.  Here's his testimonial of how we helped him.

  • New Media Rights' help is available to local San Diego filmmakers as well as media creators across the country. Maricar Camaya is a San Diego filmmaker interested in international gender and sexuality issues. Maricar briefly discusses how New Media Rights helped him:

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Unpublished

New Mission Statement Block

New Media Rights is an independently funded non-profit program of California Western School of Law 501(c)(3), that provides critical, preventative, one-to-one legal services to creators, entrepreneurs and internet users whose projects require specialized internet, privacy, media, and communications law expertise you can read more about the types of services we provide. For examples of the types of clients we work with, visit our detailed New Media Rights Legal Services page, to request legal assitance please use our contact form.

In addition to direct, one-to-one legal services, New Media Rights turns what we learn into hundreds of freely available video and written legal education guides.  New Media Rights also turns what we learn into policy work before the Copyright Office and the FCC, to ensure that new regulations reflect the current needs of creators and small entrepreneurs.

We want to thank those who make our services possible, particularly our individual donors, California Western School of Law, and the City of San Diego Economic Development Department.  If you'd like to suport New Media Rights as well, check out our page here for a list of ways to get involved.

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February Newsletter -- Getting results: FCC now considering proposal that would actually protect the Open Internet.

In this months newsletter:

The FCC's proposal to reclassify the Internet under Title II is a big win for the Open Internet!
Recently, FCC Chairman Tom Wheeler proposed reclassifation of the internet as a Title II communications service.  If adopted February 26, the proposal would give the FCC the legal authority it needs to preserve and protect the Open Internet. Executive Director Art Neill sat down with KPBS to discuss why the Federal Communication Commission's new Open Internet rules are necessary to ensure a free and open internet




For more on the Net Neutrality debate and what it means for you, check out our latest blog post on Net Neutrality here.
 


New Media Rights files critical comments in anti-circumvention proceedings to protect internet users and creators' rights.
New Media Rights has filed comments with the Copyright Office supporting four specific exemptions to the Digital Millennium Copyright Act’s anti-circumvention provisions that will protect both internet users and creators' rights under fair use. Exemptions are argued every 3 years, and ensure that accessing copyrighted material for purposes of fair use don't needlessly violate federal law.

Similar to our 2009 and 2012 comments to the Copyright Office, these comments offer direct evidence supporting the right of internet users and video creators to circumvent technological protection measures to a) allow individuals to take control of the apps and services they use on their mobile devices, and b) allow creators, internet users, and filmmakers to reuse video content for fair use purposes.  Thanks to our legal intern California Western School of Law 2L Pat McManus for his assistance in preparing these comments. You can read more here.


NMR in the news


Upcoming events

"Print Me a Song: Emerging Issues in 3D Printing and Copyright Law"Staff Attorney, Teri Karobonik, will be giving a presentation to the San Diego Sports and Entertainment Lawyers February 26 at 6pm about emerging issues in copyright. In addition to covering some of the basics she’ll cover emerging issues in 3D printing like singing printers, fan works and even #LeftShark . More info here.

“Copyright, Trademark, and Branding IP”Executive Director Art Neill will be giving a presentation from February 26 at 5:30 (yes the same day as the event above), on the basics of Copyright and Trademark that tech entrepreneurs need to know.  This is a free event, targeted at entrepreneurs and creators and if you’re interested in attending, you can find more info here.
 


All the best,

Art Neill, Teri Karobonik, and the New Media Rights team

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Why the FCC's proposal to reclassify the Internet under Title II is a big win for the Open Internet

Updated February 26, 2015

After a decade of debate, the 3-2 vote February 26, 2015 at the Federal Communications Commission to reclassify the Internet under Title is a win for the consumers, creators, and innovators that rely on the create and share their ideas. We'll continue to be involved in working to preserve the open Internet, but today is a great moment to say congratulations to the millions of individuals and organizations who made this possible.  You can see our post analyzing the impact of implementing Title II below.

Analysis

Recently, FCC Chairman Tom Wheeler proposed reclassifation of the internet as a Title II communications service.  The move gives the FCC the legal authority it needs to preserve and protect and preserve the Open Internet.

This is a good thing.  Here's a TV interview we did explaining what's going on.

KUSI News - San Diego, CA

You can also listen to a more in depth interview here.

Without this reclassification we face the trade-off of improved profits for already hugely profitable companies, in exchange for the internet as we know it. This trade-off is unacceptable to the creators and consumers we serve.

The nature of the internet as an open, accessible network has allowed individuals and businesses to create technologies and services that have transformed our world.  It also has allowed individuals and organizations to speak and communicate with audiences in unprecedented ways. 

What this is, how we got here

Last year right around this time we were in the wake of a big court decision against the FCC, Verizon v FCC.  The result of that decision was that the FCC had little if any authority to ensure that the internet remains a level playing field, and make sure consumers can continue to access content and services of their choice.  It paved the way for potential cableization of the internet, where you might have different tiers of content, rather than a simple platform where anyone and everyone could compete. You might have fast lanes, and preferred services, and slowly but surely the internet we know would disappear, in favor of providing a bit more profit to already very profitable Cable and Wireless companies.

What are the key provisions?

The key provisions of the Title II reclassification proposal help to avoid Internet Access Providers abusing their position as Gatekeepers. Here's a fact sheet the FCC recently released on the proposal.  While we're awaiting the precise language of the proposal, here's our take on the proposal from what's been released so far.

No blocking - broadband providers can't block access to to legal content, applications, services, and nonharmful devices
No Throttling - broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
No Paid Prioritization: broadband providers may not favor some lawful Internet traffic overother lawful traffic in exchange for consideration – in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.

Avoids Pay to Play - where established services can simply keep out competitors by paying for fast lanes to consumers.
Transparency - says broadband providers need to be transparent about their practices

Extends all of this to Wireless - This is big, and also exceedinly reasonable.  55%+ web traffic is wireless now, and previous rules created a dual structure where cable / fiber was treated differently than mobile broadband.

ONE BIG CAVEAT  - Broadband providers can engage in reasonable network management.  This makes sense, the specifics of what is reasonable will likely be sorted out through proceedings at the FCC and in court.  This is medium specific, so what's acceptable in terms of network management for fiber, cable, wireless, are different.  However, the FCC seems to aim to keep this exception narrow, because broadband providers must truly be acting for reasonable network management reasons, NOT for commercial reasons.   

Key outstanding questions

1. How this will apply to zero rating situations, such as T-mobile's badly named "music freedom" program?  Zero rating is where broadband providers can exempt preferred services from data caps.  We think this will violate the new rules, but it is an issue that is front and center with the new rules.

2. Potential revamping of Title II?  The FCC's fact sheet does reference a potential rework or modernization of Title II. Reclassification could lose its teeth if any of these changes include diminishing Title II's grant of authority to the FCC to ensure net neutrality.

Going forward

Large broadband providers will resist reclassfication, but the public overwhelmingly supports the principles of net neutrality that reclassification enables the FCC to protect.  It is as important as ever for internet users and organizations to stay vigilant, and make themselves heard, to ensure the FCC preserves the Open Internet 

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The Internet is counting on you Senator Wyden

On January 27, 2015, New Media Rights, along with 6 other organizations and 7,550 concerned Internet users, signed a letter calling on Senator Wyden for his assistance opposing the renewal of “Fast Track" authority [also known as Trade Promotion Authority or TPA].

Particularly, this letter urges Sen. Wyden to stand up to the recently proposed Fast Track bill.  If this bill passed and Fast Track were renewed, Congress would lose its power over trade policy. That power would go directly into the hands of the White House. This would deny Congress the opportunity to review and amend treaties negotiated entirely in secret like the Trans-Pacific Partnership (TPP) agreement and the Trans-Atlantic Trade and Investment Partnership (TTIP).This lack of meaningful review could lead to more extreme regulations which threaten Internet freedom and many of the efforts to reform Intellectual property law in the US. 

As a Ranking Member of the Senate Finance Committee Sen. Wyden has significant influence on the future of FastTrack. And as a long-time defender of digital rights and outspoken critic of the TTP, it is critical Sen. Wyden knows that once again we need his support. The letter concludes:

Users urge you to stand strong and oppose any new version of trade authority that does not include these critical guarantees of transparency, inclusiveness and accountability…


We are counting on you, as a pioneer in the digital rights movement, to oppose any TPA bill that does not truly address these troubling procedural issues.


Please do not support TPA. The Internet is counting on you.


The coalition of 7 public interest groups signing onto the letter include: Creative Commons, Electronic Frontier Foundation, Internet Archive, Knowledge Ecology International New Media Rights, Open Media International, Public Knowledge. The full text of the letter is attached to this post.

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Publicletter-Wyden-TPA-EFF-fnl.pdf138.04 KB

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