Following high level talks with the IFPI and very public declarations on national TV, it recently became clear that Bulgarian authorities would start taking down torrent sites and other file-sharing services. This week the Ministry of Affairs has been busy targeting what it describes as a “criminal network” of file-hosting services which allegedly generated more than $3 million.
For the first time in 25 years, the North Carolina. legislature has passed much-needed reform regulating how local school districts use corporal punishment. Back in 1985, the legislature passed a law allowing schools to decide whether or not to use corporal punishment – as opposed to being required to do so. That led to big improvements, and by the start of the 2009-10 school year, 69 districts out of 115 had banned the practice. Yet according to a public records request conducted by Action for Children and the ACLU-NC, kids in North Carolina are still subjected to corporal punishment thousands of times a year – more than 1,400 times during the 2008-2009 school year alone. Unfortunately, legislators have simply protected the system, refusing even to require annual reporting on the use of corporal punishment from school districts.
Shockingly, there’s not even a state – or federal – law protecting children with disabilities from being subject to corporal punishment at school, a practice that was well-documented in the groundbreaking reports Impairing Education and A Violent Education, co-authored by the ACLU’s Human Rights Program and Human Rights Watch.
There does seem to be some progress, though. At the federal level, Congress is finally beginning to take note of this destructive practice, and things are already changing. Due in large part to the advocacy of the ACLU’s Washington Legislative Office, on June 29, 2010, Rep. Carolyn McCarthy (D-N.Y.) introduced the "Ending Corporal Punishment in Schools Act," H.R. 5628. This bill would ban the use of corporal punishment in public schools and private schools that serve students receiving federal services. It is a huge step forward in eliminating this form of punishment in schools.
And here in North Carolina, after years of hearing from civil liberties and children’s advocates, legislators finally started to listen when they realized that children with disabilities – who could be physically and developmentally harmed by this kind of treatment – are not protected. It may not seem like a huge step, but for the first time, the N.C. House and Senate unanimously supported a bill to regulate corporal punishment against students with disabilities. The new law creates a mechanism by which parents of students with disabilities can prevent their children from being subjected to corporal punishment in school and requires extensive reporting from school districts that use corporal punishment. Until this law was enacted, schools were only required to keep track of how many students were punished physically in school and even that data was not correlated or reported to anyone at the state level. Now schools have to report to the state the race, grade level, whether the child had a disability, and why corporal punishment was used on an annual basis. Because of this change, students with disabilities in all 23 districts that use corporal punishment will be protected and parents, advocates, school districts, and the state will more easily be able to monitor how corporal punishment is being used across North Carolina.
What’s more, support for a total ban on the use of corporal punishment is building in North Carolina. Since the bill protecting children with disabilities went into effect on Friday, July 23rd, three districts have reported banning corporal punishment and a fourth has reported that they created an “opt-out” for all children so that any parents can remove their child from being subject to corporal punishment. More districts are set to vote on a local ban. A coalition of organizations like the ACLU-NC that are concerned about child safety and students’ rights continues to build momentum so that very soon North Carolina can join the 30 other states that ban the use of corporal punishment in schools.
Hi. My name is Ron Hedges. I am a Visiting Research Collaborator with the CITP for 2010-11.
Let me tell you a little about myself. I am a graduate of the University of Maryland and Georgetown University Law Center. I spent over twenty years as a United States Magistrate Judge and sat in Newark, NJ. I came to the Center through my work with the use and abuse of electronic information in civil litigation in the United States Courts. Several years ago, I wrote a decision on the subjects of “preservation” and “spoliation” electronic information. That led me to The Sedona Conference, a think-tank of academics, attorneys, and judges who focus on electronic information and other things. Today, I’m on a Sedona advisory board and work on, among other things, confidentiality, public access, and electronic information in criminal actions. For information on Sedona, go to www.thesedonaconference.org.
This year, I hope to work with the Center to update something Sedona did a few years ago on confidentiality and public access in civil litigation. Our society prizes two conflicting values: openness in our judicial system and protection for matters of personal privacy and “protected” information. Examples of the latter are trade secrets and personal medical information. How we as a society reconcile openness and protection in civil litigation was the theme of The Sedona Guidelines on Confidentiality and Public Access, published in March of 2007. This document is not focused on electronic information and offers only general guidance on access to electronic information managed by courts. I hope to use my time at CITP to conduct a symposium on confidentiality and access and to move The Sedona Guidelines forward.
Another project for 2010-11 would be to consider the automation of the review of electronic information for “relevance” and “privilege.” Relevance is a simple, but often misunderstood, concept. To be relevant, information must tend to either prove – or disprove – something. Privilege is also simple, but often misunderstood. To be privileged (in a broad sense), information must be either subject to either the “attorney client privilege” or “work product.” Privileged information need not be turned over to an adversary and, if it is turned over, there can be serious consequences. Not surprisingly, human review for privilege is estimated to account for about half of the cost of litigation.
The “holy grail” of litigation is to come up with an automated process or processes for relevance and privilege review that is reasonable. The process must also be something that can be explained to laypeople (i.e., judges and lawyers). Research is being spearheaded by NIST, and I hope to have CITP sponsor a program on automated search that would feature, among others, Jason Baron of NARA and Maura Grossman of the Wachtell firm. They have led the NARA initiative and are prominent exponents of automated review.
Finally, I hope to offer a symposium or class to introduce technology-oriented folks like you to the intricacies of the law as it deals with electronic information.
Please give me your thoughts as we move toward the Fall semester.
Hi. My name is Ron Hedges. I am a Visiting Research Collaborator with the CITP for 2010-11.
Let me tell you a little about myself. I am a graduate of the University of Maryland and Georgetown University Law Center. I spent over twenty years as a United…
July 26, 2010 marked the 20 th Anniversary of the Americans with Disabilities Act (ADA). The passage of the ADA, as well as the Rehabilitation Act of 1973, has made the U.S. a self-proclaimed global leader in disability rights. The U.S. government is justifiably proud of the progress it has made in protecting the rights of people with disabilities in the workplace, healthcare, education and public accommodations — all critical domains covered by the ADA.
In the immigration sphere, however, the U.S. has yet to provide similar substantive protections through U.S. constitutional law and international human rights standards. A joint ACLU/Human Rights Watch report released this week, Deportation by Default, revealed that people across the country with mental disabilities — U.S. citizens, legal permanent residents, asylum seekers, and refugees — face a greater risk of wrongful deportation by U.S. Immigration and Customs Enforcement (ICE) because courts do not ensure fair hearings for those unable to represent themselves without support. Advocates in both the disability and immigrants’ rights communities are urging Congress to pass legislation that would establish safeguards, including appointed counsel, for all those with mental disabilities in immigration courts.
There is an overwhelming need for persons with disabilities in immigration detention to have greater access to justice, as even immigration judges and other officials appear to appreciate. The report, based on 104 interviews with ICE detainees, their families, social workers, psychiatrists, immigration attorneys, judges and rights advocates, states that detainees with mental disabilities–ranging from intellectual disabilities to p ost-traumatic stress disorder (PTSD)–often remain in custody for years on end with no legal limits. Some of the detainees interviewed didn’t even know their own names, let alone the meaning or consequences of “deportation.” Sarah Mehta , Aryeh Neier fellow at HRW/ACLU and the report’s author, said, "No one knows what to do with detainees with mental disabilities, so every part of the immigration system has abdicated responsibility. The result is people languishing in detention for years while their legal files – and their lives – are transferred around or put on indefinite hold."
Last year, President Obama signed the Convention on the Rights of Persons with Disabilities (CRPD), reinforcing U.S. commitment to this vulnerable group. We hope that both the administration and Congress will continue the progress made under the ADA and act quickly to ratify CRPD, bringing much needed reform and rights protection to detainees with disabilities.
To download a podcast on this issue, including an interview with a former
detainee, please visit: www.hrw.org/en/audio/2010/07/23/deportation-and-disability-us
To download a broadcast quality audio feature, please visit:
www.hrw.org/en/audio/2010/07/23/luiss-story
The Federal Trade Commission recently issued a factsheet in response to questions it received about its revised guidelines requiring disclosure of compensated endorsements.
As I’ve explained in detail in prior posts, the Commission revised the gui…
A letter from the Prime Minister dated 29 May 2010 confirmed the Coalition’s commitments on transparency within the central government procurement process. This was followed earlier this month by a new OGC procurement policy note for central government departments -…
I tweeted this yesterday, but thought it merited more comment. According to an article in the Washington Post: “Betty “B.J.” Ostergren wanted to persuade Virginia to take sensitive personal data off state Web sites. To make her point, she created her own site and then posted public records that included the Social Security numbers of [...]
The U.S. Copyright Group (USCG) has been all over the news in recent months. The lawyer group sued thousands of BitTorrent users who allegedly file-shared motion pictures belonging to their clients, including the Oscar-winning Hurt Locker. However, it turns out that USCG are not copyright purists either, as they have blatantly copied the website of a competitor without permission.
Now that the dust has settled on the long-awaited announcement of new DMCA circumvention exemptions, it’s time for an explanation of what these exemptions will (and will not) do for consumers and creators. We’ll start with a tremendously important exemption that we fear was somewhat overlooked in the excitement about jailbreaking and unlocking: breaking DVD encryption in order to take short clips for purposes of criticism and commentary for noncommercial use, educational use and documentary films.
This exemption represents many months of hard work by an array of public interest groups. EFF led the charge on behalf of vidders (with invaluable support from the Organization for Transformative Works, among others). The documentary films issue was pushed by the International Documentary Association, Kartemquin Films (a Chicago-based nonprofit) and the USC Gould School of Law Intellectual Property & Technology Law Clinic. The educational uses were championed by a group of educators from American University, the University of Pennsylvania, Temple University, and the University of Maryland, working with the Library Copyright Alliance.
In public comments and at numerous hearings, these groups called on the Librarian of Congress to bring copyright in line with its true purpose – promoting creativity and education – by removing the DMCA as a powerful legal impediment to fair use. Hollywood responded by suggesting that fair users should use “alternatives” to circumvention, such as pointing a camcorder at your television screen to “capture” a poor quality copy of a movie that is playing. In other words, fair users should pretend they are living and working in 1994. Happily, the rulemakers decided to let us live in the present, describing this suggestion as “specious.”
What this means.
Before this exemption was issued, the only people allowed to circumvent DVD encryption for fair use purposes were film and media studies professors. Now, that category has expanded to include all college and university professors and film and media studies students (as long as they are circumventing for educational purposes), documentary filmmakers, and noncommercial vidders. The user may take only a “short portion” of the original work for purposes of criticism and commentary, and she must reasonably believe she needs to break the DRM to accomplish that purpose.
What it doesn’t.
This exemption does not affect toolmakers – i.e., those that develop and provide the tools that make circumventing CSS possible. Nor can it stop Hollywood from attempting to impose other technical limits on the ability to copy, even for fair use purposes. Also, K-12 educators and students who aren’t in film and media studies classes have to keep using 20th century technology. Finally, even though the Register of copyrights has declared that using short portions of a movie for purposes of criticism or comment in a noncommercial video is a fair use (no surprise), Hollywood can still use tools like YouTube’s Content I.D. system to take down such videos with the flip of a switch.
What changed?
This exemption is long overdue, and therein lies a question: why now? After all, as the Register of Copyrights notes in the report that led to the rulemaking, it was clear back in 2000 that CSS could interfere with fair use in ways Congress didn’t anticipate when it passed the DMCA. The Register’s answer is that the factual record has changed: First, proponents submitted enough substantial evidence of hardship to support their cases. (Which points to a fundamental problem in the process – where it’s clear as a matter of pure logic that a given form of DRM is impeding fair use, it’s irrational to force fair users to suffer for years under legal threat until enough evidence of the harm is accrued.) Second, the market for DVDs has (supposedly) changed:
In past rulemakings, the MPAA has offered evidence that CSS protection was a critical factor in the decision to release motion pictures in digital format . . . [but] CSS-protected DVDs have continued to be the dominant form even though circumventions tools have long been widely available online. At this point in time, the suggestion that an exemption for certain noninfringing uses will cause the end of the digital distribution of motion pictures is without foundation.
We think the MPAA’s bluster that it would stop distributing DVD movies if an exception was granted for fair use circumvention should have never been credited by the Register, but it’s gratifying that the Register refuses to do so any longer.
Some Other Highlights
In the report that led to the rulemaking, the Register of Copyrights made a series of telling observations about encryption and fair use. For example, she implicitly acknowledged what we’ve been saying for years — that DVD encryption is primarily designed not to restrict access, but to serve as a legal “hook” that forces technology companies to enter into license agreements before they build products that can play movies. As the Report puts it:
By design, the CSS encryption system serves as a link in a chain of legal and technological requirements that ultimately inhibit the possessor of a CSS-protected DVD from copying the work or works embodied in it.”
Of course, those license agreements do more than inhibit copying — they define what the devices can and can’t do, thereby protecting Hollywood business models from disruptive innovation.
Also notable is the Register’s fair use analysis, and particularly her conclusion that there was no evidence that taking short clips cause any harm to any actual market for the original works. Opponent of the exemption had argued, among other things, that they were experimenting with ways to get short clips to educators – in other words, a market might emerge. Not good enough, said the Register: “there was no evidence in the record that a viable or efficient mechanism for permissions or licensing exists or is likely to exist” for the next three years.
This exemption could go further — for example, there’s no sensible reason why literature students, or math students for that matter, should have been excluded. Nonetheless, it represents a big step in the right direction. Hopefully the next rulemaking will go further down the path.