Twitter, DMCA Take-downs & the Prior Restraint of First Amendment Speech
Last week, the big news in DMCA takedowns was the sweeping removal of Hitler parody videos . Earlier this year, it was Google suddenly wiping out six separate music blogs . Today, it’s the removal of a tweet . While this might not seem like a big deal on the surface, it leads to some much bigger questions about free speech, what content should fall under a proper DMCA take-down and whether or not the DMCA is a legal method of applying censorship by any content owner. Sponsor Here’s the story as told by TechDirt: The story involves a music blogger named JP, who runs the appropriately named JP’s blog . Not surprisingly, JP also has a Twitter account , where he mostly seems to post links to his blog posts. One such post was about the leak of the new album by The National. That post includes a link to Amazon where people can purchase the new album… and also a link to a download of one song (in MP3 format) from the album. According to JP’s blog post on the subject, Twitter sent him a message last Thursday “in response to a DMCA take-down notice”. The email, he writes, read as follows: jp917, Apr 22 03:10 pm (PDT): Hello, The following material has been removed from your account in response to a DMCA take-down notice: Tweet: http://twitter.com/jp917/statuses/12499491144 – New Post: Leaked: The National – High Violet http://jpsblog.net/2010/04/20/leaked-the-national-high-violet/ JP denies posting any link to the leaked album in his tweeted blog post, saying that he will not bother filing a counterclaim to the take-down. He also links to an article in Plagiarism Today from a year ago that alleges that Twitter’s handling of DMCA take-downs and counterclaims is problematic and that “there is clearly an organization issue here and that’s leading to confusion.” While last weeks’ take-downs of parody videos may have been “overbroad take-downs of legal content” , as the Electronic Frontier Foundation asserted, this sort take-down may go an extra step, beyond constitutionally protected First Amendment speech. With the YouTube take-downs, at least there was copyrighted content present, although it may have been used according to the law in the end. In this case, according to JP, there was neither pirated content nor a link to any DMCA-violating content. While TechDirt argues that “specifically, nothing in the tweet itself is infringing — which means that the DMCA take-down for the tweet is bogus, and a violation of the DMCA itself”, we spoke with David Sohn, senior policy council with the Center for Democracy & Technology , who said that the question might not be so cut and dry. Section 5.12D of the DMCA relates to cases involving “information location tools” and “links”. “One possibility here is that Twitter has gotten a take-down notice that might not stand up as a totally valid take-down notice,” said Sohn. On Sohn’s advice, we asked Wendy Seltzer, founder of ChillingEffects.org , what this all meant and she explained that the burden of proof lies with the person creating the content and not the platform. All the platform, in this case Twitter, needs to know is that the complaint me be valid and that, by removing the offending content, they cover themselves legally in the eyes of the DMCA. Whether or not section 5.12 D of the DMCA actually applies doesn’t really matter. The introduction to her recent paper, “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment” (.pdf), speaks clearly to the problem we saw when first reading this story: Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the “safe harbors” of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech. The problem with the current format of the DMCA, especially in the case of something like a communication platform such as Twitter, is that a DMCA take-down notice becomes an extremely effective means of silencing information for a legally mandated period of 10 days. In essence, it provides those who wish to silence a voice a quick and legal means of enacting what is called a ” prior restraint “, something clearly prohibited in First Amendment law. “When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas,” writes Seltzer in the paper. Twitter offered this response: “Twitter regularly receives DMCA takedown notices. We strive to balance the interests of our users and copyright holders by reviewing each notice. After determining whether the notice is compliant with the law, we also consider other factors such as whether the notice is abusive to our users, or fails to take fair use into consideration. You can read more about our DMCA process here: http://help.twitter.com/entries/15795-copyright-and-dmca-policy “We are always working to improve our transparency. Users are notified immediately when content has been removed from their account. In this situation, we responded to a request to remove a Tweet containing a link to download content from an unreleased album. After reexamining our decision, we believe this was the correct first step. If the affected user believes we have made a mistake or that the notice is in error, the appropriate thing for the user to do is file a counter-claim. “We believe that the reasoning of the DMCA claim and its origin should be transparent to both the affected user and other interested parties. We are working on further steps to improve access to this information.” So, our next logical question here is: Since this post includes the email from Twitter, which includes that original link to a blog post that supposedly linked to infringing content, can it too be removed according to the guidelines of the DMCA? Discuss
How to "Like" Anything on the Web (Safely)
Worried about Facebook “like” fraud? You should be. Thanks to Facebook’s overly simple implementation of the new Facebook Like Button , anyone can post a “Like This” button on their website pointing to any URL of their choosing. In other words, users can be tricked into liking websites they’re not even on . You can bet that enterprising spammers have already figured out how to use this technology for their own nefarious purposes. If you want a safer solution, there’s a new Facebook “like” bookmarklet you can use instead. Sponsor The bookmarklet was created by Kyle Bragger , formerly the CTO of Cork’d , a social networking site for wine lovers, and now working on his own project, Forrst , an invite-only community for developers and designers. Not only does using the bookmarklet he created protect you from “like fraud” as described here , it’s also a handy way to like anything on the Internet – even if there’s no “like” button available on that page. How to Use the Facebook Like Bookmarklet To use the bookmarklet, just drag this link to your bookmarks bar in your web browser: Like-o-matic . Once there, you can click it anytime you’re on a page or website you like. Like ReadWriteWeb , for example? Click the button. Although there’s no “Facebook Like Button” for the website as a whole (you can, however, find us on Facebook ), you’ll be given the opportunity to “like” ReadWriteWeb. After clicking the bookmarklet once, you’ll see a message appear at the top of the screen: “Be the first of your friends to like this.” Click the button with the thumbs up on it and it will register your like on Facebook and post it to your News Feed. That’s all there is to it. By using the bookmarklet instead of the like buttons on the websites themselves, you can be sure that your Facebook “like” will be pointing to the real thing. Plus, it allows you to “like” anything you want – even a site that isn’t using Facebook buttons. Nice! Discuss
Two-Thirds of iPhone Users Now Use Location-Based Services at Least Once a Week
While services like Gowalla and Foursquare still haven’t become household names outside of the early adopter market yet, the technology behind these apps is now solidly mainstream. According to a new survey by the Mobile Marketing Association (MMA), about two thirds of iPhone owners now user location services at least once a week. Taking all cell phone users into account, 22% of adults between 25 and 34 use location services at least once a week, mostly to locate nearby points of interests, shops and services. Sponsor Focus: Location-Based Apps and Advertising The survey also asked users how likely they are to take action on location-based advertising on their mobile devices. According to the MMA, about half of those users who noticed ads in location-based apps took some action. On the other hand, only about 37% of respondents who noticed ads while sending or receiving text messages took any action based on these commercial messages. For those we noticed ads while browsing the web, this number was only 28% (which still seems rather high to us). Given that most people use location-based apps when they are already looking for a certain store or product, it makes sense that these users are more likely to respond to ads than people who are just browsing the web. Are Users Really Willing to Let Apps Track Them Passively in Return for Discounts? “Consumers are interested in allowing their phone to automatically share their location in exchange for perks, such as free use of mobile applications and mobile coupons.” Interestingly, the MMA survey also notes that “consumers are interested in allowing their phone to automatically share their location in exchange for perks, such as free use of mobile applications and mobile coupons.” While mobile coupons and other perks are definitely interesting to consumers, passive location services that track consumers in return for discounts have never really been tested in the wild. These services may sound good on paper, but the privacy implications of using these apps are hard to neglect and it remains to be seen if users are actually willing to give up their privacy in return for a 10% discount at Crate and Barrel. Chances are that we will see more of these passive tracking services once the iPhone 4 operating system arrives later this year. The current generation of the iPhone’s operating system doesn’t allow apps to run in the background and track your location, but this will be possible in the next version of the iPhone OS. Discuss
One Approach to Growth: Build Your Own Cloud with vCenter in the Middle
Today, we got the chance to sit down with Aprimo, an on-demand marketing automation company that has built their software business around scaling their own cloud infrastructure with VMware vCenter . Aprimo has optimized its offerings to scale with customer growth and leverage best-in-class hardware to match innovation in the software layers it develops. In this discussion, we found less need for discussing private vs. public cloud. Instead, we found more focus on performance and speed-to-market as key drivers for moving a virtualization strategy into personal cloud infrastructure reality. Sponsor The story of Aprimo starts with virtualization – and has led to the company defining the boundaries of its cloud offering and product architecture around the benefits of scaling resources on demand. Aprimo uses a Microsoft .Net three-tier architecture with MSSQL in the back-end. All of the three tiers (front-end, business logic, database) run in virtual containers that are monitored with vCenter. Performance is the question that Aprimo studied when bringing vendors on board. The company has relationships with 3Com, Cisco, and HP for the three key parts of the technology stack. vCenter joins these offerings together and offers the company quick response to new customer requests. Like many business, marketing can come in waves and this architecture is designed to scale around the unknown and to be agile enough to support the marketing calendar. Here is a diagram showing the core services VMware vCenter is focused on: We had the chance to explore the customer experience of build-your-own-cloud with John Gilmartin, Director of Product Marketing at VMware. We asked him if VMware sells clouds, or if instead its tool build clouds. What we found is that it is a bit of both. Like a data center itself, or a complex application, building your own cloud can be a multi-faceted event. Customers are using vCenter as a building block to manage the resources and enabling automation around business processes. By thinking of automation as the line in the sand between virtualization and cloud, we can easily see how connecting business processes focuses on the best place in harnessing on-demand resources for business benefit. Some of the areas of focus we the Aprimo team took on as the company to optimize its virtual resources into its cloud. Design and optimization of resource pools Database tier optimization and support new dynamic customer scaling Designing for performance with vendor evaluations Leveraging best practices from VMware on tuning and finding bottlenecks Processes for spinning up new users automatically across all resources Out of these focus areas, we found database scaling the most interesting to consider. It seems clear that as build-your-own-clouds grow, database performance, concurrency, and process integration are ripe for further optimization. What we learned from Aprimo and VMware vCenter is that launching a cloud infrastructure is a combination of virtualizing computing resources and designing the automation of the right business and technical processes. Reaching the stage of an effective cloud depends on how the team thinks about connecting software, sales, and infrastructure together as a process. Making a commitment to your own cloud can bring a company together – from sales manager to developer. This join can position an organization to win customers and grow the business due to an increase in the end to end agility of the organization. Is your business ready to cook up a cloud recipe of your own? Discuss
Budding AR Developer? Put Your Creativity to Use and Win $5,000
If you’ve been following our posts about augmented reality (AR) in the last few months, you’ve noticed that we speak often about practicality and its importance for the proliferation of the technology. Sure, gimmicky applications can be fun and new, but it’s my opinion that the more practical and useful an AR application is, the better suited it is to help push AR toward mainstream acceptance. With that being said, AR developers should be aware of a contest being hosted by metaio , the makers of the junaio iPhone app and mobile AR platform, which will reward creativity and practicality in AR. Sponsor The company says over 200 developers have flocked to the platform since opening up junaio’s API to the public, and to reward them, they are giving $5,000 to the developer who makes the best use of it. Developers can sign up on junaio’s website where they can follow instructions on how to get started creating a “channel” for their AR content. The company is encouraging as much creativity and practicality as possible in order to stand out against the crowd of simple POI locators. “The creative potential of junaio is vast: AR Mashups, multiplayer games or scavenger hunts, interactive, indoor and outdoor exhibitions, tours with animated 3D characters, eduainment right on the spot and location independent gaming,” the company expressed in press release. “It is up to the developer to challenge his imagination and become as much creative as he wants to.” On June 16, the top five channels with the most subscribers will become finalists in the contest, and the winner will ultimately be chosen by a panel of AR and IT aficionados, including Robert Scoble , Thomas Carpenter of Games Alfresco , and Dr. Christian Geiger, professor and mixed reality researcher at Düsseldorf University. I will also be participating on the judges panel, and am very excited to see the innovative AR channels that could come from this contest. I am also thrilled that metaio and junaio are pushing the creative side of the contest. It is much easier for gimmicky AR applications to become popular, but these kinds of applications don’t benefit AR as much as actual useful implementations. The subscriber threshold will merely be used to shorten the list of applications that will be considered for the prize, but that doesn’t mean the most popular one will win. For more information on the contest and on the junaio platform, check out their website , or if you happen to be in Germany, stop by at AR DevCamp in Berlin this Friday. There will be free sessions available for developers to learn the capabilities of the API and will provide a jumping-off point for those new to the platform. Discuss