This is the third in a series of posts about the proposed Google Book Search settlement.

Now that we've described the proposed settlement agreement's biggest potential upside for the public—expanded online access to books, particularly out-of-print books—that benefit must be weighed against the potential down-sides. On that score, the settlement's potential impact on competition in the online book market has loomed large. Critics of the settlement have emphasized two principal dangers:

1. The potential for a Google monopoly over orphan and unclaimed books.
2. The potential for monopolistic pricing of the Institutional Subscription Database, particularly for higher education.

The revised Settlement 2.0 made little or no effort to address these concerns, leaving it to Congress or antitrust authorities to fix later.

A Google Monopoly on Orphan & Unclaimed Books?

At the heart of the proposed settlement is a bargain that lets Google (and only Google) leapfrog the problem of "unclaimed works"—books whose copyright owners cannot be found or whose owners can't be bothered to fill out paperwork for a small payment disbursed by the Registry (consider how many "class action" notices you've tossed in the trash unread). Thanks to the magic of the class action process, the settlement solves this problem by resolving the copyright claims of these otherwise unreachable copyright owners and designating all of their works by default as available for "Display Uses" by Google. In other words, so long as no one steps forward to claim these books, Google (and only Google) has a license to make them available in all the ways the settlement allows.

Many who filed objections to the proposed settlement, including the Department of Justice, Microsoft, Amazon.com, the Internet Archive, and Public Knowledge, among others, argued that this could create a de facto Google monopoly over online use of these unclaimed works. And while the revised Settlement 2.0 creates an "Unclaimed Works Fiduciary" (UWF) to act as a guardian on behalf of owners of unclaimed works, neither the UWF nor the Registry has the power to grant a similar license to any other entity that might want to make the same kinds of uses that Google will be entitled to make under the settlement.

Nobody likes this "only-for-Google" aspect of the settlement—in fact, Google has said that it would support orphan works legislation that would empower the Registry to make the same deal (or even a better deal) with others who want to use these unclaimed works. (Where the claimed books are concerned, in contrast, the Registry will likely ask the rightsholders to appoint it to license companies other than Google. But that still leaves all the unclaimed books out.) The settlement agreement even has a provision that makes it clear that the UWF can license others "to the extent permitted by applicable law"—what amounts to an "insert orphan works legislation here" invitation.

But absent some legislative supplement to the revised Settlement 2.0, it still seems that any other company would have to scan these books, get sued, and hope for a class action settlement. That, of course, is the kind of barrier to entry that any monopolist would envy.

This raises a worthy question: if legislation is necessary to fix the competition problem posed by the settlement, then why do we need a class action settlement in the first place? Why not solve what seems like a quintessentially legislative problem with legislation, instead? (As Amazon points out, that's exactly what was done when music publishers brought a class action against the first digital audio tape (DAT) recorders).

Here's where realpolitik enters the equation. Google correctly points out that Congress has been working on orphan works legislation for years, to no avail. And none of the legislative proposals came close to the comprehensive solution embodied in the proposed settlement. So the question boils down to a political one: do you believe that approval of Settlement 2.0 will make orphan works legislation more likely, or less likely? Without a crystal ball, it's hard to know.

Monopoly Pricing of the Institutional Subscription Database?

One of the commercial services that Google is authorized to provide under the proposed settlement is the "Institutional Subscription Database" (aka "ISD"), which will provide "all-you-can-eat" access to the corpus of scanned books. The chief customers for the ISD are likely to be universities (the same folks who are providing Google with the books to be scanned), for whom instant digital access to every word in every book in Google's collection is likely to be very compelling.

The big question is whether, over time, the ISD will become the one database that no university can do without, and the one database with no market substitute (again, because Google will be the only company who can provide a comprehensive corpus without fear of copyright liability, for the reasons explained above). This, of course, is a recipe for monopolistic price gouging, as a group of academic authors led by Prof. Pam Samuelson have pointed out. Over time, universities could face spiraling prices as Google and the Registry conspire to maximize their revenues on the ISD product.

Google and its supporters respond by pointing out that the settlement requires that pricing for the ISD be set with regard to "two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education." The settlement goes on to promise that Google and the BRR "will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties, the scope of Books available, the quality of the scan and the features offered as part of the Institutional Subscription."

But Google's own people have reportedly admitted that there might not be any "similar products and services" to the ISD. And the settlement does not give ISD subscribers the right to go to court to enforce these "objectives" and "parameters." Instead, Google has entered into "side agreements" with some of its major library partners (U. of Michigan, U. of Wisconsin—both of which will be receiving subsidies from Google for their ISD fees) that allow only those institutions to challenge pricing, and only under certain circumstances. So what we are left with is a "trust us" from Google, the Registry, and their biggest library partners.

Of course, the chances of this coming to pass are hard to know in advance. As we have pointed out, if many large publishers pull their books out of the ISD database, then perhaps the ISD service won't become indispensable to universities after all. So, ironically, the more successful the ISD proves to be, the more of a danger its pricing mechanism might prove to be for higher education.

Fixing the Competition Problem

Just because the proposed Book Search settlement isn't good for competition doesn't mean it's illegal. There is a robust debate going on (see, e.g., articles by Picker, Elhauge, Fraser, Lemley, and Picker again) about whether the proposed settlement might violate antitrust laws, and the Antitrust Division of the Department of Justice will doubtless continue its investigation.

But we shouldn't be satisfied with antitrust law here. This is not just a simple market transaction between commercial entities. Google is building an enormously important public resource, a task it can only undertake with the blessing of a federal court. The public deserves a solution that is not "barely legal," but that instead encourages real, robust competition. As written, without some modification or legislative adjunct, Settlement 2.0 does not do that.

In the UK, the Labour administration's impatience to pass its "Digital Economy" agenda risks throwing balanced, deliberate reform of copyright law utterly out of the window. With no warning or consultation, the draft Digital Economy bill now includes a provision granting the Secretary of State — currently Lord Peter Mandelson — the power to make statutory instruments that can re-write Britain's Copyright, Design and Patents Act with almost no Parliamentary debate.

Once the Digital Economy Bill is passed by Parliament, the Secretary of State could use sweeping powers to effect wide-ranging changes to the copyright system to swiftly meet the needs of one set of interest holders:

The Secretary of State may by order amend Part 1 [of the Copyright, Designs and Patents Act] or this Part for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur.

This would grant those who lobby for more draconian copyright enforcement to bypass the normal democratic process, and fast-track any veto on new Internet technologies that concerns them.

The only way to stop constant ratcheting up of punishments and restrictions on innovation is to ensure that such broad powers are never granted. Call your MP now, and tell him or her that no Secretary of State should be able to rewrite copyright law on a whim.

All MPs can be contacted via the House of Commons switchboard at:
+44 (0)20 7219 3000

"I'm calling to state my opposition to Lord Mandelson's proposals to change our copyright law to benefit a few industries, and his attempts to make wide-ranging changes through secondary legislation. Please make it clear to the government that in its current form, its Digital Economy bill and any related statutory instruments affecting copyright law will damage the digital economy, not build it." (Add your own comments.)

After your call, let the UK's Open Rights Group know what your MP said here.

EFF Deeplinks: A Pirate Finder General for the UK?

Copyright law involves a delicate balance, made all the more fragile by the number of people who now find their every day actions affected by it. Some people benefit, others find ordinary behaviors made illegal. Reforming copyright in the face of new technology is a vital process, but it needs to be performed carefully, with all affected parties considered in the debate.

In the UK, the Labour administration's impatience to pass its "Digital Economy" agenda, risks throwing that balance utterly out the window.

In less than 12 hours' time, the draft Digital Economy Bill will be released. It will apparently include a provision granting the Secretary of State &mdash currently Lord Peter Mandelson &mdash the power to make statutory instruments that can re-write Britain's Copyright, Designs and Patents Act with the minimum of Parliamentary debate,.

Secondary legislation has been used in a sweeping manner before in the UK. After the UK's RIPA surveillance act was passed with promises that it would only be used for serious crime, secondary legislation was subsequently proposed that expanded its snooping powers to dozens of government bodies, including the Post Office and the Food Standards Agency.

Using secondary legislation as part of the Digital Economy Bill is far more dangerous. This bill would grant the Secretary of State sweeping powers to mess with the very fundamentals of the UK copyright system law, ignoring the voices of UK citizens to meet the needs of one set of interest holders:

In a letter to Harriet Harman, the committee leader who would be responsible for granting such powers, Mandelson says he is "writing to seek your urgent agreement" to changes to the 1988 Copyright, Designs and Patents Act "for the purposes of facilitating prevention or reduction of online copyright infringement".

Once the Digital Economy Bill is passed by Parliament, the Secretary of State could effect wide-ranging changes to the copyright system very swiftly. To give an example of why Mandelson feels it necessary to arbitrarily transform the law, in this same letter, he expressed his concern over the recent emergence of "cyberlockers" as a threat to the media industries.

"Cyberlocker" is the entertainment industry's name for services like Amazon's S3, Dropbox, Apple's MobileMe iDisk, Ubuntu One, or YouSendIt that allow you to easily upload, synchronise and share files with friends. Businesses and individuals use these services every day to collaborate with colleagues and pass on files like family photos or large work documents. In Britain, this entire large, useful Net market innovation could be regulated out of existence without even a vote. And if you think that is not likely to happen, consider that the entertainment industry successfully lobbied the US Trade Representative to include an obligation on the South Korean government to target the same sector (“webhard services”) in the US-Korea Free Trade Agreement (see the third side letter).

If Mandelson is specifically seeking the power to capriciously wipe out entire fledgling industries that depend on our current copyright law, imagine what other instruments from the grab-bag of recent rightsholder demands might also be candidates for statutory instrument action. Throttling or blocking P2P? Creating joint investigation teams of police and IP owners? Filtering all Net traffic through music-infringement-filters? All of these are entertainment industry promoted proposals which judges or politicians have previously considered.

Once granted this power for these reasons the meddling would never stop. After all, this is the government that said:

If [illegal filesharing] is a massive problem we could turn on a fast, powerful response... If there is a little problem we can be more proportionate. How draconian we are will be a matter for the secretary of state to decide at the time."

The only way to stop constant ratcheting up of punishments and restrictions on innovation is to ensure that such broad powers are never granted. If you're in the UK, call your MP now and tell him or her that no Secretary of State should be able to rewrite copyright law on a whim.

Patenting podcasting? You've got to be kidding. Yet a company called Volomedia just got the Patent Office to grant them such exclusive rights.

EFF and the law firm of Howrey, LLP aren’t willing to just sit by and watch. This patent could threaten the vibrant community of podcasters and millions of podcast listeners. We want to put a stop to it, but we need your help.

The Volomedia patent covers "a method for providing episodic media." It's a ridiculously broad patent, covering something that many folks have been doing for many years. Worse, it could create a whole new layer of ongoing costs for podcasters and their listeners. Right now, just about anyone can create their own on-demand talk radio program, earning an audience on the strength of their ideas. But more costs and hassle means that podcasting could go the way of mainstream radio -- with only the big guys able to afford an audience. And we'd have a bogus patent to blame.

In order to bust this patent, we are looking for additional "prior art" -- or evidence that the podcasting methods described in the patent were already in use before November 19, 2003. In particular, we're looking for written descriptions of methods that allow a user to download pre-programmed episodic media like audio files or video files from a remote publisher, with the download occurring after the user subscribes to the episodes, and with the user continuing to automatically receive new episodes. You can read the entire prior art request here, and if you have something that could help, please send it to podcasting_priorart@eff.org or fill out the form on our Volomedia page.

EFF's Patent-Busting Project has taken on ten of the worst free-speech and innovation crushing software patents approved by the U.S. Patent and Trademark Office. Eight of the ten have had a bite taken out of them so far, with two busted entirely, one narrowed, four reexams granted by the Patent office, and another one invalidated by the courts. We weren't looking to add to our list of the "worst of the worst," but this one was so bad we had to add it as a special bonus offender, and we can't wait to shoot it down. As Renee DuBord Brown of Howrey said, "Overbroad patents deter innovation. Congress specifically authorized the reexamination process to correct such errors, and we are looking forward to working with EFF on this reexam."

The ACTA juggernaut continues to roll ahead, despite public indignation about an agreement supposedly about counterfeiting that has turned into a regime for global Internet regulation. The Office of the United States Trade Representative (USTR) has already announced that the next round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations will take place in January — with the aim of concluding the deal "as soon as possible in 2010."

For the rest of us, with access to only leaks and whispers of what ACTA is about, there are many troubling questions. How can such a radical proposal legally be kept so secret from the millions of Net users and companies whose rights and freedoms stand to be affected? Who decides what becomes the law of the land and by what influence? Where is the public oversight for an agreement that would set the legal rules for the knowledge economy? And what can be done to fix this runaway process?

We wrestle with these questions in an essay on “The Impact of ACTA on the Knowledge Economy”(PDF here) in the Yale Journal of International Law Online. We explain how ACTA got this far, in this form, and propose four mechanisms for USTR transparency reforms, that will give the public a voice in ACTA, if U.S. citizens — and their elected officials — speak loudly and quickly enough.

In brief, the ACTA process has been deliberately more secretive than customary practices in international decision-making bodies to evade the debates about intellectual property (IP) at established multilateral institutions. The Office of the USTR has chosen to negotiate ACTA as a sole executive agreement. Because of a loophole in democratic accountability on sole executive agreements, the Office of the USTR can sign off on an IP Enforcement agenda without any formal congressional involvement at all. But the negotiations do not have to be secret, and the sole executive agreement process does have mechanisms for oversight: they have not been used in ACTA, but can and should be.

read more

We're excited to share the news that our friends at the ACLU of Northern California have just launched their dotRights privacy campaign, an impressive effort to spread the word about how online services collect and share reams of personal information about internet users. The entertaining and informative dotRights introductory video summarizes the issue, covering how companies can collect data about you and share that information with data brokers and the government, and how the laws meant to protect the privacy of your internet activities are woefully outdated. The dotRights site also has more detailed content on a range of privacy issues related to webmail, search engines, social networks and more, while giving activists a variety of ways to take action on those issues.

Learn more from the ACLU of Northern California's blog post about the launch, and visit dotrights.org to check out the campaign!

This is the second in a series of posts about the proposed Google Book Search settlement.

The Potential Upside: Enhanced Public Access

From the public's point of view, unprecedented public access to books is the chief benefit promised by the revised proposed settlement (aka Settlement 2.0) of the Google Book Search litigation. That's the "upside" against which all the possible "down-sides" will be measured. And when it comes to enhancing public access, the proposed settlement holds great promise. Whether that promise will actually come to pass, however, is harder to predict.

Here's what we know about Google's book scanning efforts so far [revised in light of updated numbers sent by Google Nov. 19]:

• Google has already scanned more than 12 million books (for comparison, U.S. libraries hold an estimated 42 million titles total).
• Roughly 50% are in languages other than English, with more than 100 languages represented. (In the revised settlement proposal, however, the parties have tried to exclude most books published in countries other than the US, UK, Australia, or Canada, so some non-English language books may now be excluded.)
• 2 million are clearly in the public domain (i.e., published pre-1923, government works, etc).
• 2 million have been scanned with the explicit permission of copyright owners as part of Google's partner program.
• That leaves ~7 million scanned volumes that are potentially the subject of the copyright lawsuits and the proposed settlement (given the low rate of copyright renewals for works published between 1923-1963, it is likely that a substantial portion of these 7 million volumes may actually be in the public domain, in which case they would fall outside the settlement).

So how much access will the public have to the scanned books that fall within the scope of the settlement (that's the ~7m already scanned, as well as millions more Google will be scanning in the future)? The answer will vary based on their copyright status, what services Google implements, and the expressed wishes of copyright owners:

Out-of-print, in-copyright books: For these books—principally out-of-print books published after 1923—the settlement envisions Google providing access through four principal mechanisms:

• "Preview Uses" (show up to 20% of the book, for free, in response to search queries);
• "Consumer Purchase" (permanent, full-text, online access on a book-by-book basis for a fee);
• "Institutional Subscription" ("all-you-can-eat" full-text online access on a blanket basis through an institution); and
• "Public Access Service" (at least one free public terminal for public libraries).

All of these "Display Uses" will be enabled by default under the settlement agreement for out-of-print, in-copyright books. This is just a default, however; copyright owners are entitled to change the default by electing to "Remove" or "Exclude" their books from any or all of the Display Uses. Of course, where unclaimed works (books whose copyright owners cannot be located or have not bothered to sign up with the Registry) are concerned, the default will effectively be the rule, which is a good thing for public access to these works.

In-print, in-copyright books: By default "Display Uses" will not be permitted for these books. In other words, if Google scans these books, they will go into the database corpus, but will not be available for Preview, Consumer Purchase, or Institutional Subscription, unless the copyright owner chooses to enable one or more of those uses. In short, no public access unless the copyright owner chooses to allow it.

Google Partner Program books: Under the settlement, copyright owners of both in-print and out-of-print books can elect to pull their books out of Google's database corpus, choosing instead to negotiate a different deal in the Google Partner program, which gives the copyright owner more flexibility to define exactly how the book can be accessed. Some observers anticipate that many, perhaps most, major publishers will take this option and remove their works from the products and services described in the settlement.

The Potential: Unprecedented Online Access

Taken together, these features mean that the Google Books project could potentially provide Americans (and only Americans, as the settlement only authorizes Google to offer Display Uses of in-copyright books to U.S. Internet users) with unprecedented instant access to a large collection of books that previously were available only in research university libraries. In particular, like the Internet before it, Google Books could make specialized resources available to people who otherwise might never be able to access them (see, e.g., Google's agreements to digitize U. of Wisconsin's Native American collection and U. of Texas' Benson Latin American collection).

In addition to enabling search and reading, the products and services envisioned by the settlement could also unleash innovative, transformative new uses for the information inside these books. For example, the availability of all these readily citable books could radically expand and transform Wikipedia, which places a premium on citations to neutral sources to validate edits to its pages. Once every Wikipedian can do full-text searches against the research collections of major university libraries, Wikipedia should see a huge expansion of cited contributions.

The proposed settlement also offers the promise of unprecedented access for the visually impaired. The proposed settlement commits Google to offering screen enlargement, read-aloud, and Braille displays ("Accommodated Service") for the Institutional Subscription product. As the National Federation for the Blind and a coalition of other disability rights groups have pointed out, this will make a "historically unprecedented" number of books accessible to the visually impaired.

In addition, under the terms of the settlement, Google may make two copies of the scanned books database ("Research Corpus") available through university libraries for "nonconsumptive" research (i.e., you can use it to develop your new OCR algorithms, but not to extract and compile every paragraph that mentions zombies to create a "Zombies Through The Ages" book). Although use of the Research Corpus will be subject to a number of restrictions that have drawn fire from academics, the creation of such "Research Corpus" would nevertheless be an important step forward for access. Programmatic access to a large database of books is likely to open new avenues of scholarly inquiry and unleash new innovations, including better search algorithms, optical character recognition techniques, automated language translation breakthrus, and other uses that we haven't yet imagined.

The Uncertainty: Empty Promises, Empty Shelves?

But the promise of what the settlement might accomplish is no guarantee of ultimate results.

First, under the settlement copyright owners can pull their books (see Section 3.5, "Right to Remove or Exclude") out of all the products and services envisioned by the settlement, including full-text search and limited "snippet view" access. This is essentially the "take the money and run" option—the copyright owner collects a per-book payment from Google for books already scanned, but then the public gets no online access to these books unless and until the copyright owners negotiate new deals with Google or other online providers. This effectively gives copyright owners a unilateral right to trump fair use, essentially "unpublishing" their books online. Some observers expect that most major publishers will opt to "take the money and run" for both their in-print and out-of-print titles, leaving gaping holes on the virtual shelves of Google Books. If this takes place, then the settlement would only foster access to orphan and unclaimed works. Still good, but far short of full access to every book in the University of Michigan library.

Second, Google is not required to offer all the products and services envisioned in the settlement. The settlement only compels Google to offer the following within 5 years (see Sections 3.7(a), 7.2(e)(i), 7.2(g)(ii)(1)):

• Consumer Purchase (not clear what percentage of the scanned books must be made available)
• Institutional Subscription for Higher Education, including Accommodated Service (for at least 85% of books scanned)
• Public Access Service (for at least 85% of books scanned)
• free search services (including Snippet View and Preview, for at least 85% of books scanned)
• Library links that will help you find a library with hard copy (for at least 85% of books scanned)

Notably absent from this list is the Research Corpus described above (in side agreements with its library partners, however, Google has made monetary commitments toward building the Research Corpus). And if Google never gets more than 85% of eligible books online, that would represent still more gaps on the virtual shelves.

Third, the public gets only the kinds of access that Google makes available, only through interfaces that Google chooses to expose. And while this level of access is certainly preferable to no access at all, the "One Interface to Rule Them All" approach is likely to impede innovation, which ultimately means less access. It would be preferable if others had access to the underlying book scans, just as Google had access to the World Wide Web when it built its own search engine. (Google will protest that it spent the money to make the scans, and it's unfair to allow competitors to free-ride on its scanning investment. We already posted our answer to that objection.)

And Don't Forget the Down-Sides

So while the settlement does offer the exciting promise for drastically increasing public access to books, it is hard to predict whether that promise will be fulfilled. And even if the promise of access were fulfilled, there are other down-sides to the settlement, which we will take up in our next posts.

This is the first in a series of posts evaluating the proposed Google Book Search settlement.

When it announced its Book Search project in 2004, Google set for itself an inspiring and noble goal. In the words of Google CEO Eric Schmidt, "Imagine yourself at your computer and, in less than a second, searching the full text of every book ever written." What started as a dream of universal book search, however, has become something much broader: a class action lawsuit and proposed settlement that hopes to let Americans read, as well as search, millions of books online.

The fate of that more ambitious plan is now before a court in New York. In the face of opposition from many quarters (including EFF and the U.S. Department of Justice), Google and class representatives for authors and publishers recently revised the proposed settlement (aka "Settlement 2.0", 300-page PDF redline posted here). The court is expected to decide whether to approve the revised settlement sometime in the first half of 2010.

Advocates on both sides have had their say, both in court and elsewhere. In a series of posts, we will be evaluating Settlement 2.0 from a variety of angles intended to illuminate whether it is a good deal for the public, including its impact on access, competition, privacy, censorship, innovation, and fair use. Is Settlement 2.0 the best we can do? The most we can reasonably expect? Not good enough? How does it measure up against our aspirations the future of online digital libraries?

Here's a preview of the overall contours of the debate. The chief benefit of the proposed settlement is the increased public access to books (particularly out-of-print books) that it makes possible. Against this important benefit must be balanced concerns about possible detrimental effects on privacy, competition, innovation, and fair use. Complicating the overall analysis are the requirements and limitations of class action litigation, as well as the inherent difficulty in predicting how copyright owners and readers will respond to the new Google products and services contemplated in the proposed settlement.

In the meantime, if you want to keep track of the latest breaking news regarding the proposed settlement, we recommend Prof. James Grimmelmann's blog, The Laboratorium, as well as The Public Index, which includes a handy, linkable, annotatable copy of the entire proposed settlement agreement. For the latest from Google about Google Books, we recommend the Google Book Search blog and Google Public Policy blog.

Late Friday night the parties to the Google Book Search class action submitted a revised settlement agreement to the federal court in New York that is hearing the case.

Unfortunately, the parties did not add any reader privacy protections. The only nominal change was that they formally confirmed a position they had long taken privately that information will not be freely shared between Google and the Registry. Our partners at the ACLU of Northern California have a blog post describing the changes we, and the authors we represent, have demanded and continuing the call for readers everywhere to let Google CEO Eric Schmidt know that reader privacy should not be left behind as books move into the digital age.

The parties also asked for truncated notice and a rushed schedule with objections and opt-outs due on January 28, 2010 and a final fairness hearing on February 18, 2010. We'll be posting more about the revised settlement and the procedures going forward.

UPDATE: Macworld reports that Apple has changed its mind and approved the "Bobble Rep" app, which is now available in the App Store.

Apple's ridiculous iPhone app approval process has hit a new low, with rejections for “ridiculing public figures" and using Apple's own APIs to access Apple icons. These are just the latest reasons why the U.S. Copyright Office should approve EFF's effort to legalize jailbreaking of the iPhone—customers and developers shouldn't need Apple's approval before using the software they want.

In a cautionary tale for both artists and developers, illustrator Tom Richmond blogged about Apple's pointless rejection of "Bobble Rep," a great civic-engagement app designed to help users connect with their senators and representatives. Using a ZIP code or the iPhone's GPS, users can can get contact information for their members of Congress. But there's style as well as substance to the app, as Richmond – a noted caricature artist – drew portraits of all 544 members of Congress, giving the app a neat, cartoony flavor. (For novelty's sake, you can flick the lawmaker's head to make it bobble.)

So why did Apple reject Bobble Rep?
...because it contains content that ridicules public figures and is in violation of Section 3.3.14 from the iPhone Developer Program License Agreement which states: "Applications may be rejected if they contain content or materials of any kind (text, graphics, images, photographs, sounds, etc.) that in Apple's reasonable judgement may be found objectionable, for example, materials that may be considered obscene, pornographic, or defamatory." [Emphasis added.]

First of all, the caricatures are no more scandalous than what you might get for paying a street artist to sketch your face. But even beyond aesthetic quibbles about whether or not John McCain's forehead is drawn as “cartoonishly huge" or “insultingly huge," how is this any of Apple's business? This episode demonstrates once again how Apple is stifling the iPhone platform and alienating would-be partners by deciding to keep the gate, paternalistically levying arbitrary judgments about what users can handle. For whatever reason, Apple allows apps that fart, but disallows apps that help you get in touch with elected officials.

It's this kind of arbitrary censorship that led the noted software developer Rogue Amoeba to leave the iPhone platform today. CEO Paul Kafasis describes the tortuous saga Rogue Amoeba went through to fix a bug in their product "Airfoil Speakers Touch" while being stymied by an unresponsive Apple at every turn. The app is cool -- it allows you to forward audio from one computer to your iPhone. As part of the app's function, it shows a picture of the computer where the audio is coming from -- a helpful visual cue that lets the user know how and if the application is working.

But later, when Rogue Amoeba found a bug, coded a fix, and resubmitted the application to Apple for approval, Apple rejected the new version because the app shows a picture of the computer sending the audio (like a picture of an iMac, or a Macbook Pro) and an icon for the application from the sending computer (like a Safari icon). Apple cited their policies, claiming:
You may not use the Apple Logo or any other Apple-owned graphic symbol, logo, or icon on or in connection with web sites, products, packaging, manuals, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Apple, such as a reseller agreement.

Mind you, Apple had already approved the first version of Airfoil Speakers Touch. And the pictures and icons are supplied by the transmitting computer using Apple's own APIs. Crazy!

And Facebook's iPhone developer, Joe Hewitt, recently dropped the iPhone project, saying, "My decision to stop iPhone development has had everything to do with Apple's policies. [...] I am very concerned that they are setting a horrible precedent for other software platforms, and soon gatekeepers will start infesting the lives of every software developer."

Of course, like any retailer, Apple can choose what it wants to carry in its own App Store. But if Apple doesn't carry an app you want, you shouldn't be locked in to the App Store as your only source for software. “Jailbreaking" allows consumers to use their phones however they like, and for developers to sell whatever they produce. These episodes highlight why it's important that the Copyright Office grant EFF's request for a DMCA exemption for "jailbreaking" iPhones and other handsets. There's no reason that Apple should be the sole source of applications for the iPhone (any more than it's the sole source of apps for Macintosh computers), and a DMCA exemption would go a long way toward letting competition, rather than Apple's “approval," decide which apps users want.

We spend a lot of our time at EFF trying to spot new proposals in copyright across the world, and understanding whether they're good or bad for civil liberties. We're not the only ones: our understanding depends on the work of hundreds of researchers worldwide who are constantly sifting through new drafts and consolidating older reforms in hundreds of nations.

It's a global effort, and that's why we're happy to announce our involvement in a truly global project: Copyright Watch. Working with academics, libraries and copyright monitors from across the world, Copyright Watch brings together the most recent copies of laws from as many countries as we could find. And with that global team, we'll be tracking new proposals, consultations, and freshly passed regulations: finding the promising changes, and highlighting the spectacularly bad ideas hopefully before they can take hold.

A single country's copyright law can be truly byzantine (the United States' seems to be the longest at around 130,000 words, although we're pretty sure Afghanistan has the shortest, lacking as it does any copyright regulations at all). And right now, every one of the 184 countries in Copyright Watch's database is struggling to reform their regulations to fit the difficulties and opportunities of the digital age.

It's a real challenge to map all of these laws, and all of these changes. But it's vital that we do so. Every shift in any of those countries might spread: whether it's for good or ill, maximalist or reforming. Lawmakers eagerly look for track records in other nations, or are obliged to adopt another's bad laws through treaty or trade agreement. Japan decides to model their new law's exceptions on the United State's broad fair use principles; politicians see France's three strikes laws, and decide to import them wholesale. We're hoping Copyright Watch will give the public as powerful a tool for monitoring the global copyright outlook as any private interest.

San Francisco - The Electronic Frontier Foundation (EFF), Electronic Information for Libraries (eIFL.net), and other international copyright experts joined together today to launch Copyright Watch -- a public website created to centralize resources on national copyright laws at www.copyright-watch.org.

"Copyright laws are changing across the world, and it's hard to keep track of these changes, even for those whose daily work is affected by them," said Teresa Hackett, Program Manager at eIFL.net. "A law that is passed in one nation can quickly be taken up by others, bilateral trade agreements, regional policy initiatives, or international treaties. With Copyright Watch, people can learn about the similarities and differences in national copyright laws, and they can use that information to more easily spot patterns and emerging trends."

Copyright Watch is the first comprehensive and up-to-date online repository of national copyright laws. To find links to national and regional copyright laws, users can choose a continent or search using a country name. The site will be updated over time to include proposed amendments to laws, as well as commentary and context from national copyright experts. Copyright Watch will help document how legislators around the world are coping with the challenges of new technology and new business models.

"Balanced and well-calibrated copyright laws are extremely important in our global information society," said Gwen Hinze, International Policy Director at EFF. "Small shifts in the balance between the rights of copyright owners and the limitations and exceptions relied on by those who use copyrighted content can destroy or enable business models, criminalize or liberate free expression and everyday behavior, and support the development of new technologies that facilitate access to knowledge for all the world's citizens. We hope that Copyright Watch will encourage comparative research and help to highlight more and less flexible copyright regimes."

"Details of copyright law used to be important only for a few people in creative industries," added Danny O'Brien, International Outreach Coordinator at EFF. "But now, with the growth of the Internet and other digital tools, we are all authors, publishers, and sharers of copyrighted works. Copyright Watch was created so citizens of the world can share and compare information about their countries' laws."

Funding to create Copyright Watch was generously provided by the Open Society Institute.

Copyright Watch:
http://www.copyright-watch.org

Contacts:

Gwen Hinze
International Policy Director
Electronic Frontier Foundation
gwen@eff.org

Danny O'Brien
International Outreach Coordinator
Electronic Frontier Foundation
danny@eff.org

As we watch Congress wrangle with much-needed reforms to the PATRIOT Act -- particularly attempts to address the misuse of National Security Letters -- it's clear that there are important voices missing from the fray. One notable void stems from the empty Privacy and Civil Liberties Oversight Board (PCLOB). Alongside a coalition of civil liberties groups, EFF yesterday called on President Obama to prioritize the nomination of board members so that the PCLOB can contribute to ongoing debates over government surveillance, cybersecurity, and more.

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If you're a student or researcher who is passionate about improving technology policy and you're interested in working with EFF, consider applying for the Google Policy Fellowship — a 10-week, summer program that gives students the chance to work alongside a public interest organization on topics of Internet and technology policy.

Marcel Leonardi, last year's Google Policy Fellow at EFF, was a pleasure to work with and enjoyed his experience with us: "It was a complete privilege to work with such smart, passionate and fun people; to be able to participate in important debates with several organizations, and to do research with full academic freedom. I am proud of being a Google Policy Fellow."

Much like how Google's "Summer of Code" project aims to develop and promote open source projects, Google is hoping that these policy fellowships will advance debate on key policy issues affecting the public. Fellows will receive a stipend of $7,000 for 10 weeks during the summer of 2010 (June to August). Applications are due by midnight on Monday, December 28, 2009. Students who are accepted into the program will be notified by Friday, February 12th, 2010. For more information, read the FAQ, learn more about EFF's focus areas and check out the application.

San Francisco, CA - Today the Electronic Frontier Foundation (EFF) posted thousands of pages of records detailing behind-the-scenes negotiations between government agencies and Congress about providing immunity for telecoms involved in illegal government surveillance.

The documents include drafts of legislation and communications between Congress and the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) about amendments to the Foreign Intelligence Surveillance Act (FISA). They were released as a result of litigation that started back in 2007, when Congress first debated granting immunity to the telecommunications companies for taking part in massive, unchecked surveillance of Americans' telephone and Internet communications. EFF used the Freedom of Information Act (FOIA) to request information about communications between the DOJ, ODNI, Congress, and telecom lobbyists.

"The government has finally given up its battle to hide this information from the public and has released a significant portion of the records we've been fighting for," said EFF Staff Attorney Marcia Hofmann. "We hope that these files include some answers about what happened when the DOJ and ODNI pushed Congress to pass the law getting telecoms off the hook for their role in illegal government surveillance."

The government has said it will continue to try to block the release of additional documents, including communications within the Executive Branch and records reflecting the identities of telecoms involved in lobbying for immunity. The government's appeal will be heard before the 9th U.S. Circuit Court of Appeals in January 2010.

"This case isn't over yet -- there's still more information about the extensive lobbying campaign by the telecoms that helped them get immunity last year," said EFF Senior Staff Attorney Kurt Opsahl. "The government continues to hide important documents from the public."

FOIA Release: Draft legislation to amend FISA:
http://www.eff.org/fn/directory/4800/360

FOIA Release: Correspondence about amending FISA, bill summaries, and other documents:
http://www.eff.org/fn/directory/4800/359

For more on this case:
http://www.eff.org/issues/foia/cases/C-07-05278

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) and Davis Wright Tremaine, LLP, will defend the Yes Men and other activists in a lawsuit filed against them by the U.S. Chamber of Commerce over political criticism of the Chamber's stance on climate change legislation.

In mid-October, the activists staged a "press conference" in which the Chamber of Commerce ostensibly reversed its position and promised to stop lobbying against strong climate change legislation -- a stance that has caused numerous Chamber members to leave the organization. As has been widely reported, before the press conference was even completed, a Chamber of Commerce representative rushed into the room and revealed that the Chamber's position on climate change legislation had not in fact changed.

"The action was a brilliant piece of political theater, but it had a serious purpose: calling attention to the Chamber's political activities," said EFF Senior Staff Attorney Corynne McSherry. "This is core political speech, protected by the First Amendment. We're very pleased that Davis Wright Tremaine -- with its long, successful history of protecting free speech rights of Americans -- has joined us in helping these activists battle a transparent attempt at censorship."

"U.S. courts have recognized that political parody lies at the heart of the First Amendment," said Davis Wright Tremaine LLP partner Bruce Johnson. "Even if the party parodied refuses to giggle--or even panics and sues--free speech will ultimately triumph. We look forward to a prompt dismissal of this case and a reaffirmation of the rights of all Americans to poke fun at the pompous and powerful."

The Chamber has pulled out all the stops in its effort to silence the activists. First, it sent an improper copyright takedown notice to the Yes Men's upstream provider, demanding that a parody website posted in support of the action be removed immediately and resulting in the temporary shutdown of not only the spoof site but hundreds of other sites hosted by May First/People Link. Next, the Chamber filed suit against the activists in federal court, claiming among other things the activism infringed their trademarks.

"Trademark rights do not encompass the right to silence criticism," said EFF Senior Staff Attorney Matt Zimmerman. "It is our hope that the Chamber will rethink its lawsuit and take a position more consistent with its past support of First Amendment rights."

A response to the Chamber's complaint is due later this month in the U.S. District Court for District of Columbia.

For more on this case:
http://www.eff.org/cases/chamber-commerce-v-servin

Contacts:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

In 1990, Bavarian actor Walter Sedlmayr was brutally murdered. Two of his business associates were convicted, imprisoned for the crime, and recently paroled. Who killed Sedlmayr? Its a matter of public record, but if one of the men and his German law firm gets their way, Wikipedia (and EFF) will not be allowed to tell you. A few days ago, the online encyclopedia received a cease and desist letter from one of the convicts—represented by the aptly named German law firm Stopp and Stopp—demanding that the perpetrator's name be taken off of the Sedlmayr article page.

At issue is an apparent conflict between the U.S. First Amendment—which protects truthful speech—and German law—which seeks to protect the name and likenesses of private persons from unwanted publicity. Sedlmayr's murderer became a public figure when he and his accomplice were tried for brutally killing the well-known actor, and contemporary newspapers published his identity at that time. Fifteen years later, according to his attorneys, German law views the killer as a private citizen again. So, his lawyers have sued the German language Wikipedia, and threatened the English language version with the same, if they fail to censor the Sedlmayr article. They've also gone after an Austrian ISP that had published the names, and it looks like that case may head to the European Court of Justice. Perhaps Germany wants to make it easier for defendants to reintegrate into society, and publicizing a man's past crimes interferes with the effort. After all, "he who controls the past, controls the future". But this slogan from Orwell's Ministry of Truth is anathema under U.S. law, which takes it as an article of faith that people must be allowed to publish truthful information about historical events.

A foreign power should not be able to censor publications in the United States, regardless of whether doing so suits the country's domestic law. The current dispute is reminiscent of LICRA v. Yahoo!, in which a French court ordered the American company to prevent access to its Nazi memorabilia auctions by French residents, then fined the company for failing to do so. Yahoo! sought and obtained a ruling in the U.S. that imposing the French law on the company would violate the First Amendment. (The opinion was subsequently overturned for lack of personal jurisdiction over the French entities).

At stake is the integrity of history itself. If all publications have to abide by the censorship laws of any and every jurisdiction just because they are accessible over the global internet, then we will not be able to believe what we read, whether about Falun Gong (censored by China), the Thai king (censored under lèse majesté) or German murders. Wikipedia appears ready to fight for write once, read anywhere history, and EFF will be watching this fight closely.

Oh, and by the way, the convicts were Wolfgang Werlé and his half-brother Manfred Lauber.

Last week saw the latest round of secret negotiations on ACTA, on criminal enforcement of IP, enforcement in the digital environment, and, according to one of the few public documents on the negotiations, ACTA's own "transparency". It's hard to imagine a more controversial set of IP topics -- and underlying them all is the distinct lack of transparency attached to the entire process. It's been a sore point throughout the trade agreement's long history, with pressure from the European Parliament, the Canadian delegation, and public interest groups (including EFF) in the United States to make the agreement more accountable.

We're asking the Obama Administration directly to open up the process -- but your elected officials also have a part to play. Write to your Senators now, and tell them to rein in ACTA.

Meanwhile, in the continuing absence of any true openness, reporters and analysts have had to rely on leaks and hints from the countries involved. Here's a round-up of what we know from ACTA-watchers around the world:

• The story so far: Michael Geist's timeline from October 2007 to March 2009.

• The full text of the leaked European Commission briefing memo, including a note that the content is sensitive "due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet 'freedom' on the other)".

• Reactions from EFF, Canada, Australia, New Zealand, and across the blogs.

• Open letters to Obama administration demanding transparency, signed by EFF, and joined with individuals and groups from Lawrence Lessig to the Medical Library Association.

Can the U.S. government secretly subpoena the IP address of every visitor to a political website? No, but that didn't stop it from trying.

In a report released today, EFF Senior Staff Attorney Kevin Bankston tells the story of a bogus federal subpoena issued to independent news site Indymedia.us, and how the site fought back with EFF’s help. Declan McCullagh at CBSNews.com also has the story.

The report describes how, earlier this year, U.S. attorneys issued a federal grand jury subpoena to Indymedia.us administrator Kristina Clair demanding “all IP traffic to and from www.indymedia.us" for a particular date, potentially identifying every person who visited any news story on the Indymedia site. As the report explains, this overbroad demand for internet records not only violated federal privacy law but also violated Clair’s First Amendment rights, by ordering her not to disclose the existence of the subpoena without a U.S. attorney’s permission.

Because Indymedia follows EFF’s Best Practices for Online Service Providers and does not keep historical IP logs, there was no information for Indymedia to hand over, and the government withdrew the subpoena. However, as the report describes, that wasn’t the end of the tale: Ms. Clair wanted EFF to be able to tell the story of the subpoena and shine a light on the government’s illegal demand, yet the subpoena ordered silence. Under pressure from EFF, the government admitted that the subpoena’s gag order had no legal basis, and ultimately chose not to go to court to try to force Ms. Clair’s silence despite earlier threats to do so.

This story is an an important example of how government abuses breed in secrecy, and an argument for Congress to step in and require meaningful reporting about how the government uses its surveillance authorities. How often does the government attempt such illegal fishing expeditions through internet data? How many online service providers have received similarly bogus demands, and handed over how much data, violating how many internet users’ privacy? How many of those subpoena recipients have been intimidated into silence by unconstitutional gag orders?

We don’t know. And until Congress exerts stronger oversight, we can’t know, except in those occasional instances where a brave online service provider steps up, pushes back, and tells the world. We encourage other online service providers to follow the example of Indymedia.us and Kristina Clair by standing up for their users' rights when the government secretly overreaches. If you're an ISP, a web host, an email provider, an app developer, a Web 2.0 start-up or any other kind of online service provider and you receive a government demand for your users' data, please call a lawyer. If you don't have a lawyer, call EFF.

Despite the Obama administration's policy of openness, the Anti-Counterfeiting Trade Agreement (ACTA) still remains shrouded in secrecy. Although no text has been officially released, leaked negotiation texts reveal that ACTA will include provisions regulating the global Internet — provisions that could trample protections for Net users and the sites they use.

ACTA is currently being privately negotiated between the US, the EU, Switzerland, Japan, South Korea, Australia, Canada, Mexico, New Zealand, Morocco and Singapore, outside of existing multilateral treaty-making bodies. These countries intend for ACTA to create new international standards for IP enforcement above those in existing international treaties.

The agreement is on a fast track. Negotiators want to complete negotiations and finalize details in 2010. In the US, ACTA is being negotiated as an Executive Agreement, and, therefore, it will not go through the usual congressional process that applies to international treaties and other free trade agreements.

The most recent round of negotiations that took place from 4-6 November in Seoul, South Korea, focused on enforcement in the digital environment, based on text drafted by US negotiators. Although that text hasn’t been officially released for public comment, a leaked memo confirms that ACTA will include many things that have been sought by major copyright industry lobbyists for many years. ACTA will require countries' laws to impose legal liability on Internet intermediaries, such as ISPs and websites that host user-generated content, like YouTube and weblogs. To avoid such liability, intermediaries will have to adopt Three Strikes Internet disconnection policies, and countries signing ACTA will have to adopt laws banning the circumvention of copyright owners’ technological protection measures, modeled on the US Digital Millennium Copyright Act. US copyright industry lobbyists have also pressed for provisions requiring Internet intermediaries to monitor Internet communications for potential copyright infringing material – something Internet Intermediaries are expressly not required to do under US law.

These policies threaten citizens’ freedom of expression, privacy and due process rights. They also endanger future Internet innovation.

Despite its significant impact on the global Internet and on the rights of citizens across the globe, ACTA continues to be negotiated behind closed doors. Increased transparency is needed to ensure that ACTA includes balanced policies that meet the needs of all stakeholders in the information economy – particularly citizens and technologists – and not just the demands of the entertainment industry.

Congress can and should do more. At a time when the competitiveness of the US economy is at stake, open debate about real changes to global technology policy is too important to ignore. Instead of making the public rely on Freedom of Information Act lawsuits and leaked documents, Congress can tell the USTR to open up the ACTA process to true oversight and deliberation and demand that negotiators keep to the original agenda of fighting counterfeit fake products

ACTA has been compromised by secrecy and privileged access for industry lobbyists. Tell Congress to open it up, or demand an alternative.