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The Senate passed a new version of the Music Modernization Act (MMA) as an amendment to another bill this week, a marked improvement over the version passed by the House of Representatives earlier in the year. This version contains a new compromise amendment that could preserve early sound recordings and increase public access to them. Until recently, the MMA (formerly known as the CLASSICS Act) was looking like the major record labels’ latest grab for perpetual control over twentieth-century culture. The House of Representatives passed a bill that would have given the major labels—the copyright holders for most recorded music before 1972—broad new rights in those recordings, ones lasting all the way until 2067. Copyright in these pre-1972 recordings, already set to last far longer than even the grossly extended copyright terms that apply to other creative works, would a) grow to include a new right to control public performances like digital streaming; b) be backed by copyright’s draconian penalty regime; and c) be without many of the user protections and limitations that apply to other works. Fundamentally, Congress should not be adding new rights in works created decades ago. The drafting process was also troubling. It seemed a return to the pattern of decades past, where copyright law was written behind closed doors by representatives from a few industries and then passed by Congress without considering the views of a broader public. Star power, in the form of famous musicians flown to Washington to shake hands with representatives, eased things along. Two things changed the narrative. First, a broad swath of affected groups spoke up and demanded to be heard. Tireless efforts by library groups, music libraries, archives, copyright scholars, entrepreneurs, and music fans made sure that the problems with MMA were made known, even after it sailed to near-unanimous passage in the House. You contacted your Senators to let them know the House bill was unacceptable to you, and that made a big difference. Second, the public found a champion in Senator Ron Wyden, who proposed a better alternative in the ACCESS to Recordings Act. Instead of layering bits of federal copyright law on top of the patchwork of state laws that govern pre-1972 recordings, ACCESS would have brought these recordings completely under federal law, with all of the rights and limitations that apply to other creative works. While that still would have brought them under the long-lasting and otherwise deeply-flawed copyright system we have, at least there would be consistency. Weeks of negotiation led to this week’s compromise. The new “Classics Protection and Access Act” section of MMA clears away most of the varied and uncertain state laws governing pre-1972 recordings, and in their place applies nearly all of federal copyright law. Copyright holders—again, mainly record labels—gain a new digital performance right equivalent to the one that already applies to recent recordings streamed over the Internet or satellite radio. But older recordings will also get the full set of public rights and protections that apply to other creative work. Fair use, the first sale doctrine, and protections for libraries and educators will apply explicitly. That’s important, because many state copyright laws—California’s, for example—don’t contain explicit fair use or first sale defenses. The new bill also brings older recordings into the public domain sooner. Recordings made before 1923 will exit from all copyright protection after a 3-year grace period. Recordings made from 1923 to 1956 will enter the public domain over the next several decades. And recordings from 1957 onward will continue under copyright until 2067, as before. These terms are still ridiculously long—up to 110 years from first publication, which is longer than any other U.S. copyright. But our musical heritage will leave the exclusive control of the major record labels sooner than it would have otherwise. The bill also contains an “orphan works”-style provision that could allow for more use of old recordings even if the rightsholder can’t be found. By filing a notice with the copyright office, anyone can use a pre-1972 recording for non-commercial purposes, after checking first to make sure the recording isn’t in commercial use. The rightsholder then has 90 days to object. And if they do, the potential user can still argue that their use is fair. This provision will be an important testcase for solving the broader orphan works problem. The MMA still has many problems. With the compromise, the bill becomes even more complex, extending to 186 pages. And fundamentally, Congress should not be adding new rights in works created decades ago. Copyright law is about building incentives for new creativity, enriching the public. Adding new rights to old recordings doesn’t create any incentives for new creativity. And copyrights as a whole, including sound recording copyrights, still last for far too long. Still, this compromise gives us reason for hope. Music fans, non-commercial users, and the broader public have a voice—a voice that was heard—in shaping copyright law as long as legislators will listen and act. (function(d, s, id) { var js, fjs = d.getElementsByTagName(s)[0]; if (d.getElementById(id)) {return;} js = d.createElement(s); js.id = id; js.src = "//connect.facebook.net/en_GB/all.js#xfbml=1"; fjs.parentNode.insertBefore(js, fjs); }(document, 'script', 'facebook-jssdk'));{lang: 'en-GB'}
 

Hill-Climbing Our Way to Defeating DRM

What step will you take today?
 

EFF to Court: The First Amendment Protects Criticism of Patent Trolls

EFF has submitted an amicus brief [PDF] to the New Hampshire Supreme Court asking it to affirm a lower court ruling that found criticism of a patent owner was not defamatory. The trial judge hearing the case ruled that “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. Our brief explains that both the First Amendment and the common law of defamation support this ruling. This case began when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a defamation complaint [PDF] in New Hampshire Superior Court. Barcelou claims to have come up with the idea of connecting automated teller machines to the Internet. As the complaint explains, he tried to commercialize this idea but failed. Later, ATL acquired an interest in Barcelou’s patents and began suing banks and credit unions. ATL’s patent litigation did not go well. In one case, the Federal Circuit ruled that some of ATL’s patent claims were invalid and that the defendants did not infringe. ATL’s patents were directed to ATMs connected to the Internet and it was “undisputed” that the defendants’ products “are not connected to the Internet and cannot be accessed over the Internet.” ATL filed a petition asking the U.S. Supreme Court to overturn the Federal Circuit. The Supreme Court denied that petition. Unsurprisingly, ATL’s licensing revenues went down after its defeat in the federal courts. Rather than accept this, ATL and Barcelou filed a defamation suit in New Hampshire state court blaming their critics for ATL’s financial decline. In the New Hampshire litigation, ATL and Barcelou allege that statements referring to them as a “patent troll” are defamatory. They also claim that characterizations of ATL’s litigation campaign as a “shakedown,” “extortion,” or “blackmail” are defamatory. The Superior Court found these statements were the kind of rhetorical hyperbole that is not capable of defamatory meaning and dismissed the complaint. ATL and Barcelou appealed. EFF’s amicus brief [PDF], filed together with ACLU of New Hampshire, explains that Superior Court Judge Brian Tucker got it right. The First Amendment provides wide breathing room for public debate and does not allow defamation actions based solely on the use of harsh language. The common law of defamation draws a distinction between statements of fact and pure opinion or rhetorical hyperbole. A term like “patent troll,” which lacks any settled definition, is classic rhetorical hyperbole. Similarly, using terms like “blackmail” to characterize patent litigation is non-actionable opinion. ATL and Barcelou, like some other critics of the Superior Court’s ruling, spend much of their time arguing that “patent troll” is a pejorative term. This misunderstands the Superior Court’s decision. At one point in his opinion, Judge Tucker noted that some commentators have presented the patent assertion, or troll, business model in a positive light. But the court wasn’t saying that “patent troll” is never used pejoratively or even that the defendants didn’t use it pejoratively. The law reports are filled with cases where harsh, pejorative language is found not capable of defamatory meaning, including “creepazoid attorney,” “pitiable lunatics,” “stupid,” “asshole,” “Director of Butt Licking,” etc. ATL and Barcelou may believe that their conduct as inventors and patent litigants should be praised rather than criticized. They are entitled to hold that view. But their critics are also allowed to express their opinions, even with harsh and fanciful language. Critics of patent owners, like all participants in public debate, may use the “imaginative expression” and “rhetorical hyperbole” which “has traditionally added much to the discourse of our Nation.” Related Cases:  Automated Transactions LLC v. American Bankers Association (function(d, s, id) { var js, fjs = d.getElementsByTagName(s)[0]; if (d.getElementById(id)) {return;} js = d.createElement(s); js.id = id; js.src = "//connect.facebook.net/en_GB/all.js#xfbml=1"; fjs.parentNode.insertBefore(js, fjs); }(document, 'script', 'facebook-jssdk'));{lang: 'en-GB'}
 

Microsoft Clears the Air About Fighting CLOUD Act Abuses

Quickly, Microsoft’s principles are:
 
The Senate Commerce Committee is getting ready to host a much-anticipated hearing on consumer privacy—and consumer privacy groups don’t get a seat at the table. Instead, the Committee is seeking only the testimony of big tech and Internet access corporations: Amazon, Apple, AT&T, Charter Communications, Google, and Twitter. Some of these companies have spent heavily to oppose consumer privacy legislation and have never supported consumer privacy laws. They know policymakers are considering new privacy protections, and are likely to view this hearing as a chance to encourage Congress to adopt the weakest privacy protections possible – and eviscerate stronger state protections at the same time. The upcoming hearing at the Senate Commerce Committee may be the launch pad for this strategy of undoing stronger state laws. It is no coincidence that, in the past week, two leading industry groups (the Chamber of Commerce and the Internet Association) have called for federal preemption of state data privacy laws in exchange for weaker federal protections. For example, laws in California and Illinois require companies to have user consent to certain uses of their personal information (Nevada and Minnesota have these requirements for Internet access providers), while the industry proposals would only require transparency. That means that companies would be allowed to collect information without your permission as long as they tell you they’re doing it. The upcoming hearing at the Senate Commerce Committee may be the launch pad for this strategy of undoing stronger state laws. Since we can’t be there to say this ourselves, we’ll say it here: EFF will oppose any federal legislation that weakens today’s hard-fought privacy protections or destroys the states’ ability to protect their citizens’ personal information. EFF has had a long and continuous battle with some of the testifying companies, such as Google and AT&T, regarding your right to data privacy, and we’re not going to give up now. To be clear, we would look closely at a sensible federal legislation that offers meaningful protections for data privacy. Uniform laws offer predictability, making life easier for smaller companies, nonprofits and others that may struggle to meet the rules of different states. But a uniform law is only a good alternative if it’s actually a good law—not a weak placeholder designed only to block something stronger. The State Consumer Privacy Laws That Big Tech and ISPs Want Congress to Nullify California’s recently passed consumer privacy legislation has some valuable protections as well as room for improvement, but even this modest set of privacy protections is apparently too much for some big tech companies and the ISPs. If Congress passes the industry’s wish list, it won’t just kill the California privacy law. It will also preempt Illinois’ biometric privacy law, which landed Facebook in a class action lawsuit for allegedly collecting facial data without permission. And there’s more: Such a federal law would also block strong state data breach notification laws that forced companies like Equifax to tell us when they compromised the data of 145.5 million Americans. The upcoming one-sided congressional hearing will not yield valuable insights to the Senate Commerce Committee, but rather give the industry a lengthy amount of time to repeat talking points that reinforce their lobbyists’ arguments in hopes of persuading Congress to once again vote against our privacy rights. The state legislators in California and Illinois who passed these laws did what they were supposed to do: protect the privacy of their residents. The absence of these state laws would mean that big companies face fewer consequences for compromising our personal information. This Congress Has a Terrible Record on Protecting Privacy There’s a reason states are taking action: They are filling a void. What did this Congress do when Facebook’s Cambridge Analytica scandal broke, besides hold a hearing? What did it do when Equifax failed to protect the personal data of 145 million Americans, causing lasting damage to their financial security, besides hold a hearing? Absolutely nothing. Despite overwhelming public support for privacy—a resounding 89 percent of Americans support privacy being a legal right and 91 percent believe we have lost control over our privacy—this legislature has taken little real action. In fact, when this Congress has taken action on privacy hazards, whether from the government or from corporations, it has pro-actively stripped us of our privacy protections. When companies like AT&T, Verizon, and Comcast wanted to get away from strong federal broadband privacy regulations, Congress took the dramatic step of repealing those privacy protections. When the NSA requested an expansion of its warrantless surveillance program, Congress readily agreed. Given this track record, Internet users should wonder whether the upcoming Senate Commerce hearing is just a prelude to yet another rollback of privacy protections. If so, policymakers can expect to hear the voices they excluded loud and clear in opposition. 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More Bay Area Jurisdictions Adopt Civilian Control of Police Spy Tech

This week, two California jurisdictions joined the growing movement to subject government surveillance technology to democratic transparency and civilian control. Each culminated a local process spearheaded by concerned residents who campaigned for years. First, on Monday, the City of Palo Alto voted 8-1 to adopt an ordinance to “Establish Criteria and Procedures for Protecting Personal Privacy When Considering the Acquisition and Use of Surveillance Technologies, and Provide for Ongoing Monitoring and Reporting.” Like a handful of similar ordinances adopted across the Bay Area over the past two years, it includes several requirements. The new ordinance requires any proposed acquisition of surveillance technology to go through a public process. First, law enforcement must announce the proposal publicly, provide a formal analysis supporting the rationale, and also document potential impacts on privacy. Then, there is an opportunity for public comment to inform a transform, public vote by local elected officials. Only with their approval may the proposal proceed. We are disappointed that the Palo Alto measure lacks a provision through which the public can enforce its protections. Instead, it empowers only Council members to hold law enforcement accountable if they violate the ordinance’s process requirements. This weakness aside, the adoption of the measure is an important step forward in the expansion of civilian oversight across the Bay Area, California, and beyond. Three days later, the Board of Bay Area Rapid Transit (BART) voted unanimously to adopt a similar measure. This comes on the heels of a controversial proposed BART face surveillance program that lacked any public process. It also follows the activation of automated license plate readers (ALPRs) at a BART station without the Board’s prior approval, and the transfer of the resulting ALPR data to a regional fusion center, where it was accessible to U.S. Immigration and Customs Enforcement (ICE). Thus, the new oversight ordinance reflects a dramatic turn for BART. Like the Palo Alto ordinance, the one adopted by BART is flawed in some respects. It includes a potentially dangerous exception for law enforcement to conduct a “trial” period use of unapproved spy tech for up to 60 days at a single station. We hope the limited duration for a trial suggests that it will not become a back door to permanence. The BART Board will need to actively ensure that potential trials remain truly temporary. In June 2016, the first local surveillance oversight measure in the nation was adopted in Santa Clara County, the heart of Silicon Valley. These laws also have been adopted in Berkeley, Davis, and Oakland. By subjecting any proposed surveillance technology to a public process, these laws not only ensure community control over whether police acquire these tools. They also force into the open the increasingly common domestic use of powerful spy tech designed for use in foreign battlefields, which has proceeded largely in secret, despite being the subject of explicit warnings by the last U.S. President to command a wartime army. Each of these measures was spearheaded by local community organizations, including Oakland Privacy, a member of the Electronic Frontier Alliance. Oakland Privacy was formed during the Occupy movement in response to a proposed Domain Awareness Center, and continues to champion civilian oversight across Oakland and beyond. It was joined in Palo Alto by the Peninsula Peace and Justice Center, another group in the Alliance. (function(d, s, id) { var js, fjs = d.getElementsByTagName(s)[0]; if (d.getElementById(id)) {return;} js = d.createElement(s); js.id = id; js.src = "//connect.facebook.net/en_GB/all.js#xfbml=1"; fjs.parentNode.insertBefore(js, fjs); }(document, 'script', 'facebook-jssdk'));{lang: 'en-GB'}
 

EFF Helps Launch Anti-SLAPP Task Force ‘Protect the Protest’

Countless Americans are hit with these lawsuits every year.