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With the increasing shift from analog to digital, some elections officials are unsurprisingly chomping at the bit to move toward Internet-based voting.  My weekly technology law column (Toronto Star version, homepage version) notes that last year, Elections Canada officials mused about the possibility of online voting trials, noting the potential benefits of increasing voter participation, particularly among younger demographics.

More recently, the province of Alberta opened the door to incorporating new technologies into their voting processes as part of an electoral reform package.  New trials would require the approval of a legislative committee, but the province's Chief Electoral Officer acknowledged that online voting may be coming, noting "online voting is something that's on the forefront of people's minds. . . people say, 'I can do my banking online, but I can't do my voting online'."

The enthusiasm for Internet voting is understandable. At first blush, there is a certain allure associated with the convenience of Internet voting, given the prospect of increased turnout, reduced costs, and quicker reporting of results.  Moreover, since other security sensitive activities such as banking and health care have gravitated online, supporters argue that elections can't be far behind. Yet before rushing into Internet voting trials, the dangers should not be overlooked.


Democracy depends upon a fair, accurate, and transparent electoral process with outcomes that can be independently verified.  Conventional voting accomplishes many of these goals – private polling stations enable citizens to cast their votes anonymously, election day scrutineers offer independent oversight, and paper-based ballots provide a verifiable outcome that can be re-counted if necessary.

While technology may someday allow us to replicate these essential features online, many of them are currently absent from Internet voting, which is subject to any number of possible disruptions.  These include denial of service attacks that shut down the election process, counterfeit websites, phishing attacks, hacks into the election system, or the insertion of computer viruses that tamper with election results.

These concerns are based on real-world experience.  The Internet Corporation for Assigned Names and Numbers (ICANN), the organization that administers the domain name system, ran an online board of director election in 2000.  The experience was fraught with technical difficulties, leading a reviewer to conclude "the technical weakness in the registration system made it virtually impossible to assess the integrity of the voters' list, the security of the PINs, and secrecy of vote."

More recently, the Netherlands used Internet voting as part of its 2006 parliamentary elections.  The online option was an alternative for Dutch citizens working or living abroad.  Nearly 20,000 valid Internet votes were received at a cost of approximately 90 euros per Internet voter.  Two years later, the country implemented a ban on Internet voting.

The Canadian experience is limited primarily to municipal elections.  Several Ontario municipalities have offered Internet-based voting, enabling local residents to vote without leaving their homes.  Residents were required to pre-register for Internet voting and were provided with detailed instructions on the technical requirements to "vote anywhere."

Caution on Internet voting appears prudent, since experts have identified a long and costly list of necessary precautions, including random spot checks and post-vote verification programs to preserve anonymity.  Given the security risks, opening the door to provincial or federal Internet voting seems premature.  In the zeal to increase voter turnout, the reliance on Internet voting could inadvertently place the validity of the election process at risk.

InternetNZ has just announced that I will be the keynote speaker at PublicACTA, an ACTA conference scheduled just prior to the next round of ACTA negotiations in Wellington, NZ.

The Department of Foreign Affairs has launched a public consultation on encryption controls. Comments are due by April 30, 2010.

The entire family of devices built on the iPhone OS (iPhone, iPod Touch, iPad) have been designed to run only software that is approved by Apple—a major shift from the norms of the personal computer market. Software developers who want Apple's approval must first agree to the iPhone Developer Program License Agreement.

So today we're posting the "iPhone Developer Program License Agreement"—the contract that every developer who writes software for the iTunes App Store must "sign." Though more than 100,000 app developers have clicked "I agree," public copies of the agreement are scarce, perhaps thanks to the prohibition on making any "public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple's express prior written approval." But when we saw the NASA App for iPhone, we used the Freedom of Information Act (FOIA) to ask NASA for a copy, so that the general public could see what rules controlled the technology they could use with their phones. NASA responded with the Rev. 3-17-09 version of the agreement.

UPDATED: we are now also posting the most recent version of the agreement, dated January 2010.

This "license agreement" is particularly relevant right now, given the imminent launch of the iPad and anytime-now issuance of the U.S. Copyright Office's ruling regarding jailbreaking of the iPhone.

So what's in the Agreement? Here are a few troubling highlights:

Ban on Public Statements: As mentioned above, Section 10.4 prohibits developers, including government agencies such as NASA, from making any "public statements" about the terms of the Agreement. This is particularly strange, since the Agreement itself is not "Apple Confidential Information" as defined in Section 10.1. So the terms are not confidential, but developers are contractually forbidden from speaking "publicly" about them.

App Store Only: Section 7.2 makes it clear that any applications developed using Apple's SDK may only be publicly distributed through the App Store, and that Apple can reject an app for any reason, even if it meets all the formal requirements disclosed by Apple. So if you use the SDK and your app is rejected by Apple, you're prohibited from distributing it through competing app stores like Cydia or Rock Your Phone.

Ban on Reverse Engineering: Section 2.6 prohibits any reverse engineering (including the kinds of reverse engineering for interoperability that courts have recognized as a fair use under copyright law), as well as anything that would "enable others" to reverse engineer, the SDK or iPhone OS.

No Tinkering with Any Apple Products: Section 3.2(e) is the "ban on jailbreaking" provision that received some attention when it was introduced last year. Surprisingly, however, it appears to prohibit developers from tinkering with any Apple software or technology, not just the iPhone, or "enabling others to do so." For example, this could mean that iPhone app developers are forbidden from making iPods interoperate with open source software, for example.

You will not, through use of the Apple Software, services or otherwise create any Application or other program that would disable, hack, or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the iPhone operating system software, iPod Touch operating system software, this Apple Software, any services or other Apple software or technology, or enable others to do so

Kill Your App Any Time: Section 8 makes it clear that Apple can "revoke the digital certificate of any of Your Applications at any time." Steve Jobs has confirmed that Apple can remotely disable apps, even after they have been installed by users. This contract provision would appear to allow that.

We Never Owe You More than Fifty Bucks: Section 14 states that, no matter what, Apple will never be liable to any developer for more than $50 in damages. That's pretty remarkable, considering that Apple holds a developer's reputational and commercial value in its hands—it's not as though the developer can reach its existing customers anywhere else. So if Apple botches an update, accidentally kills your app, or leaks your entire customer list to a competitor, the Agreement tries to cap you at the cost of a nice dinner for one in Cupertino.

Overall, the Agreement is a very one-sided contract, favoring Apple at every turn. That's not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies. How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it's only because Apple still "owns" the customer, long after each iPhone (and soon, iPad) is sold, that it is able to push these contractual terms on the entire universe of software developers for the platform.

In short, no competition among app stores means no competition for the license terms that apply to iPhone developers.

If Apple's mobile devices are the future of computing, you can expect that future to be one with more limits on innovation and competition (or "generativity," in the words of Prof. Jonathan Zittrain) than the PC era that came before. It's frustrating to see Apple, the original pioneer in generative computing, putting shackles on the market it (for now) leads. If Apple wants to be a real leader, it should be fostering innovation and competition, rather than acting as a jealous and arbitrary feudal lord. Developers should demand better terms and customers who love their iPhones should back them.

Google, Yahoo, Facebook and Ebay, along with the UK's largest internet service providers, are arguing that changes to the UK Digital Economy bill poses a theat to free speech.

We're pleased to announce that, on Friday April 9, 2010, the Citizen Media Law Project and Berkman's Cyberlaw Clinic are hosting a conference at Harvard Law School to celebrate the launch of the Online Media Legal Network (OMLN).  OMLN supports promising ventures and innovative thinkers in online and digital media by providing access to legal help that would otherwise be unavailable.

Entitled “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities,” the program will bring together panels of academics, legal practitioners, and journalists. Topics will include the legal issues arising from news aggregation and managing online communities, as well as the question of what comes next for journalism, and how the legal profession can assist (or hinder) journalism’s digital transition.

Please visit the OMLN website for more information on the conference agenda, registration, and logistics and lodging.

We hope that you will join us in Cambridge for an opportunity to meet members of OMLN and to learn more about the legal issues faced by journalists working online. A discounted registration fee is available for registration forms received by March 22nd.  Law students should contact us to see about a fee waiver.

If you or your organization is interested in becoming a sponsor of the conference, please contact OMLN staff attorney Kimberley Isbell for details. Sponsors will receive a limited number of free registrations, tickets to a dinner with Harvard Law School Professor and Berkman Center Faculty Co-Director Jonathan Zittrain as the Keynote Speaker, as well as prominent acknowledgement on the OMLN website and at the conference.

UseNeXT is a brand operated by Munich and London-based company, Aviteo Ltd. UseNeXT is one of the most popular Usenet services around today and has traditionally advertised extensively within the BitTorrent community and on many torrent sites.

On 19 December 2006, performing rights group GEMA, which handles the copyrights of more than 1 million rightsholders worldwide, filed for an injunction against UseNeXT. GEMA had earlier leveled accusations at UseNeXT’s advertising in which it said, among other things, the company claimed to offer 1 million MP3s through its service.

“[UseNeXT] advertised its fee-based access with unambiguous references to illegal exchange platforms. In particular it publicized the anonymity, speed and security of access to contents available on Usenet,” GEMA said in a statement, adding: “On top of that, the service also offers special, perfected search software that makes it easier to locate and manage musical works and other contents protected by copyright.”

On 18 January 2007, the Hamburg District Court issued a preliminary injunction against UseNeXT’s operators, which included instructions for it to change the way in which it advertised its product and barring it from providing musical works from GEMA’s repertoire. UseNeXT objected to the decision and disputed that it had ever encouraged subscribers to download copyright works, arguing that its use of the terms ‘unfiltered’ and ‘anonymous’ related to features inherent in the Usenet system.

On 17 February 2010, the Hamburg District Court handed down a preliminary injunction against UseNeXT which bars the service from offering a sample 100 musical works to which GEMA administers the copyright. The injunction also states that UseNeXT must go further than simply modifying its advertising in order to protect GEMA’s copyrights.

Although not necessarily liable for infringements, the Court said that Usenet providers would have to take responsibility for the services and environments they provide.

In a statement, GEMA said that the Court of Hamburg’s decision represents expanded liabilities for Usenet providers which go further than regulating their approach to advertising, but also apply when modified advertising proves insufficient to protect rights holders.

“The adoption of the preliminary injunction is a success in our commitment to the protection of copyright,” said Dr. Harald Heker, Chief Executive Officer of GEMA. “Second, the ruling also represents a further important step towards a comprehensive responsibility of the Usenet service operator for its offer.”

At this stage it’s unclear how UseNeXT will choose to comply with the injunction. Unlike services such as Rapidshare that operate their own servers and actually store content, UseNeXT are a reseller of the Highwinds Usenet service. UseNeXT does not store any content, Highwinds do.

UseNeXT used to offer a search engine and software interface to access Usenet, so conceivably something could’ve been implemented there to bar access to the GEMA titles mentioned in the injunction. However, recent changes to their service means they are no longer offering those solutions but suggesting the use of 3rd party software, with one particular solution from Tangysoft up front.

Nevertheless, the Court said that UseNeXT is responsible for the service it’s re-selling so the company will have to find an answer somehow. Many Usenet providers are already working with rights holders to automate the removal of content, so solutions are available. How quickly and comprehensively UseNeXT acts will remain to be seen.

Article from: TorrentFreak, check out our new blog at FreakBits.

The Supreme Court has granted certiorari in Snyder v. Phelps, the funeral picketing "God Hates Fags" case involving the kooky Phelpsian Westboro Baptist Church.  Albert Snyder, the father of a U.S. marine killed in Iraq, won a $10.9 million jury verdict for intrusion and intentional infliction of emotional distress against the Phelps clan as a result of their picketing his son's funeral carrying offensive, unpatriotic, and antigay messages, as well as their publication of "The Burden of Marine Lance Cpl. Matthew A. Snyder" on the church's website.

The trial court reduced the jury verdict to $5 million, and the Fourth Circuit Court of Appeals reversed the award of damages altogether, holding that the Phelps' speech—while repugnant—is constitutionally protected.  The case raises fascinating questions about whether the intrusion and intentional infliction of emotional distress torts may constitutionally be applied to speech on matters of public concern without creating all sorts of gnarly overbreadth, vagueness, and viewpoint discrimination problems. 

UCLA law professor Eugene Volokh has several brilliant posts exploring all of this in great detail and with great eloquence. I highly recommend these posts to anyone interested in the First Amendment (or just this crazy case).

After a month of snarky letter and email exchanges, Republican U.S. Congressional candidate Joe Walsh recently removed a campaign video from his website that used a song by the Eagles band member also named Joe Walsh. Candidate Walsh called the copyright controversy "a distraction" in late January but vowed that he was "not backing down on this." Ultimately, though, he did. 

The campy video features musician and political supporter Joe Cantafio performing his take on the 1971 classic "Walk Away." Cantafio used the same, or substantially similar, music from the song to create “Lead the Way,” an ode to Walsh’s campaign. When Walsh the Rocker found out a Republican used his music as part of a campaign video, an entertaining—though misguided—discussion on copyright law began.

Attorney for Walsh the Rocker, Peter Paterno, began his initial letter by saying that it "might be beneficial" for Walsh the Candidate to freshen up on his copyright knowledge. "You're not allowed to take someone's song and change the lyrics," he wrote. "This is not to say you're not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe's music—it's undoubtedly because it's a lot better than any music you or your staff could have written. But that's the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."

Candidate Walsh called the song a parody and replied: "I’m writing for myself, Joe Walsh, a Republican Candidate for Congress in Illinois 8th District. You know where that is, don’t you? It’s that wide-open part of the country you fly over on your way from Los Angeles to New York." Realizing the political opportunity now present, Walsh continued, "I hope the Democratic National Committee and Nancy Pelosi didn’t put you up to this. As the frontrunner to take on Nancy’s Democrat Incumbent Melissa Bean this year, I wonder if I’m a threat to a whole bunch of liberal interests here who want to take down a tea party candidate."

Artists have taken issue with the unauthorized use of their music in campaigns for many election cycles now, but the case of the two Walshes is different than most. Unlike other campaigns that used original versions of songs in their entirety, Candidate Walsh turned "Walk Away" into "Lead the Way," changing lyrics from "Seems to me, you just turn your pretty head and walk away" to "Seems to me, Joe Walsh is just the perfect guy to lead the way." There are also references to Bean and Speaker of the House of Representatives Pelosi.

Once informed of Candidate Walsh's video, Rocker Walsh issued takedown demands to YouTube made possible through provisions in the Digital Millennium Copyright Act, 17 U.S.C. § 512. Candidate Walsh insisted the video is an example of fair use. Because the song features new lyrics, it does stand in contrast to previous high-profile legal bouts between the Foo Fighters and John McCain or Don Henley and Republican Charles DeVore. But the fair use defense in this case is still questionable. 

Courts consider four well-known factors when determining if fair use applies: (1) The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. 

On factor 1, courts do consider parody as an example of fair use like Candidate Walsh suggested. “Lead the Way,” however, probably doesn't qualify as a parody.  Courts in the copyright sphere have drawn a distinction between parody and satire. A parody pokes fun at the copyrighted work, while satire uses that copyrighted work as a vehicle to comment on something else altogether. Parody, unlike satire, needs to mimic the original to make its point and can use as much of the copyrighted work as is necessary to do so.  While it is certainly not necessary to create a parody in order to qualify as a fair use, this form of social and literary criticism gets special solicitude from the courts because of the First Amendment values at stake.

The leading case dealing with what qualifies as a parody is Dr. Seuss Enterprises v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir. 1997).  In that case, an author used Dr. Seuss characters and expression to comment on the O.J. Simpson murder trial. The Ninth Circuit held that "The Cat NOT in the Hat! A Parody by Dr. Juice" did not qualify as parody for copyright purposes because it did not comment on or criticize Dr. Seuss's original work, but simply used Dr. Seuss's work to make an unrelated point.

By way of contrast, the Supreme Court held in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), that 2 Live Crew's use of Roy Orbison’s “Pretty Woman” to ridicule the original as “bland and banal” was an example of parody.

Rocker Walsh’s attorney is incorrect when he says that Candidate Walsh cannot take someone else’s song and change the lyrics. Candidate Walsh can with a parody, though in this case, he didn’t. Instead, he used the music to “Walk Away” as a vehicle to communicate his campaign platform. The new lyrics speak only to his candidacy and don’t comment on the original song in any way. Because he could have just as easily communicated this platform by using his own music, his fair use defense is considerably weakened.

It is helpful that Candidate Walsh used different lyrics and created the video with a political, rather than commercial, intent; but this isn’t likely to meet the “transformative” standard needed for fair use. Ultimately, it’s still Rocker Walsh’s music being used.

The remaining fair use factors require less extensive discussion. Factor 2 offers more protection for highly creative—rather than factual—works, so the fair use scale would tip against Candidate Walsh here as well. And because Cantafio plays the music in its entirety, factor 3 also favors Rocker Walsh.

On factor 4, it's not likely that Candidate Walsh's campaign video itself will harm the market for Rocker Walsh's original musical work. But allowing unfair copying of copyrighted material could undercut the demand for derivative works. See Roger v. Koons, 960 F.2d 301, 312 (2nd Cir. 1992) (artist Jeff Koons' use of plaintiff's "Puppies" photograph could undercut the licensing market for derivative works, weighing against fair use). If Candidate Walsh is allowed to use the music to “Walk Away” without permission, it could reduce the incentive of others to license that same music. This would pose the type of economic harm that copyright aims to prevent.

But this probably isn’t Rocker Walsh’s first concern. It seems more likely that the real offense here is not the use of “Walk Away,” but instead the candidate who used the song. Wrote Paterno to Candidate Walsh: "Given that your name is Joe Walsh, I'd think you'd want to be extra careful about using Joe's music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."

Now, that’s not likely to happen.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.) 

September last year saw the passing of France’s controversial three-strikes ‘Hadopi’ law which allows the music industry to track down repeated copyright infringers with the ultimate goal of decreasing the country’s piracy rate.

Under the new law alleged copyright infringers will be reported to a judge once they have received three warnings. The judge will then review the case and hand down any one of a range of penalties, from fines through to severing the Internet connection of the infringer.

Proponents of the new law claimed that the law would convince millions of people to stop downloading copyrighted content through file-sharing networks. Most critics, however, doubted the effectiveness of the system and pointed out that there are many ways to circumvent the law.

A new study published by the University of Rennes shows that the critics are indeed right. The researchers looked into the habits of downloaders before and after the law was implemented. They found that instead of reducing piracy levels, the piracy rate actually went up by 3%.

This increase in piracy shows that the French are not changing their downloading habits much, despite the tougher legislation. There is, however, an interesting shift in the sources people use to download copyrighted movies and music. At an increasing rate the French are using streaming services along with file-hosting ‘cyberlockers’ such as Rapidshare and Megaupload.

These services are not covered by the Hadopi law and therefore ’safe’ to use. Conversely, usage of P2P services such as BitTorrent dropped from 17.1 percent to 14.6 percent between September and December last year. Overall the research seems to suggest that the looming disconnection threat has changed how and where people get pirated content, while the piracy rate itself increased.

Another remarkable statistic uncovered by the researchers is that half of all P2P users who download copyrighted content also buy digital content online. This means that if these users were disconnected from the Internet under the new law, the music industry would lose customers and thus revenue.

The overall message put forward by the research seems to be that it is hard to deter people from copyright infringement when there are plenty of alternatives to bypass the legislation. This does not only hold for the French case but can also be applied to the UK and other countries where tougher anti-piracy laws are implemented.

The answer to the increasing piracy rates worldwide is not legislation. Instead, the entertainment industry may accomplish much more by innovating and expanding their online business so that it meets the demands of today’s digital consumers.

Article from: TorrentFreak, check out our new blog at FreakBits.