Free Speech

YouTube makes statement on Content-ID takedowns

Last night, YouTube posted a note on the official YouTube Blog concerning the recent firestorm over Content-ID takedowns like the one I wrote about earlier in the week regarding my Downfall DMCA Parody.

In the post, they are kind enough to link to my video (now back up on YouTube thanks to my disputing the Content-ID takedown) as an example of a fair use parody, and to a talk by (former) fellow EFF director Larry Lessig which incorporated some copyrighted music.

However, some of the statements in the post deserve a response. Let me start first that I hope I do understand a bit of YouTube’s motivations in creating the Content-ID system. YouTube certainly has a lot of copyright violations on it, and it’s staring down the barrel of a billion dollar lawsuit from Viacom and other legal burdens. I can understand why it wants to show the content owners that it wants to help them and wants to be their partner. It is a business and is free to host what it wants. However, it is also part of Google, whose mission is “to organize the world’s information and make it universally accessible and useful,” and of course to not “be evil” in the process of doing so. On the same blog, YouTube declares its dedication to free speech very eloquently.  read more »

Studio does content-ID takedown of my Hitler video about takedowns

In a bizarre twist of life imitating art that may be too “meta” for your brain, Constantin Films, the producer of the war movie “Downfall” has caused the takedown of my video which was put up to criticise their excessive use of takedowns.

Update: YouTube makes an official statement and I respond.

A brief history:

Starting a few years ago, people started taking a clip from Downfall where Hitler goes on a rampage, and adding fake English subtitles to produce parodies on various subjects. Some were very funny and hundreds of different ones were made. Some were even made about how many parodies there were. The German studio, Constantin, did some DCMA takedowns on many of these videos.

So I made, with considerable effort, my own video, which depicted Hitler as a producer at Constantin Films. He hears about all the videos and orders DMCA takdowns. His lawyers (generals) have to explain why you can’t just do that, and he gets angry. I have a blog post about the video, including a description of all the work I had to do to make sure my base video was obtained legally.

Later, when the video showed up on the EFF web site, Apple decided to block an RSS reader from the iPhone app store because it pointed to the video and Hitler says a bad word that shocked the Apple reviewers.

Not to spoil things too much, but the video also makes reference to an alternate way you can get something pulled off YouTube. Studios are able to submit audio and video clips to YouTube which are “fingerprinted.” YouTube then checks all uploaded videos to see if they match the audio or video of some allegedly copyrighted work. When they match, YouTube removes the video. That’s what I have Hitler decide to do instead of more DMCA takedowns, and lo, Constantin actually ordered this, and most, though not all of the Downfall parodies are now gone from YouTube. Including mine.

Now I am sure people will debate the extent to which some of the parodies count as “fair use” under the law. But in my view, my video is about as good an example of a parody fair use as you’re going to see. It uses the clip to criticise the very producers of the clip and the takedown process. The fair use exemption to copyright infringement claims was created, in large part, to assure that copyright holders didn’t use copyright law to censor free speech. If you want to criticise content or a content creator — an important free speech right — often the best way to do that will make use of the content in question. But the lawmakers knew you would rarely get permission to use copyrighted works to make fun of them, and wanted to make sure critical views were not stifled.  read more »

10 year term as EFF chairman winds down, EFF 20th anniversary tonight

In early 2000, after a tumultuous period in the EFF’s history, and the staff down to just a handful, I was elected chair of the Electronic Frontier Foundation. I had been on the board for just a few years, but had been close to the organization since it was founded, including participating with it as a plaintiff in the landmark supreme court case which struck down the Communications Decency Act in 1996.

Having now served 10 years as chairman, it is time to rotate out, and I am happy to report the election of John Buckman, founder of Magnatune and Bookmooch (among other ventures) as our new chair. As a part-time resident of Europe, John will, like me, offer an international perspective to the EFF’s efforts. Pam Samuelson, a law professor of stunning reputation and credentials, is the vice-chair for the coming 5-year term, replacing John Perry Barlow.

I would love to claim credit for the EFF’s tremendous growth and success during my tenure, but the truth is that our active and star-studded board is a board of equals. We all take an active role in setting policy and attempting to guide the organization in its mission to protect important freedoms in the online world. While it would shock most of my previous employees, my board management has been very laissez-faire. I and the other board members try to let our great team do their stuff.

After I became chairman, one of the best things we on the board did was to re-recruit Shari Steele, our former legal director, to become the new executive director. Shari had been with the EFF for many years but had left to work on a new venture. We brought her back and it’s been positive ever since. We also recruited Cindy Cohn to be our legal director. Cindy had a long history of friendship with the organization, having worked tirelessly with our help on the fight to stop export controls on encryption. WIth these two appointments, I and my fellow board members started the course for an incredible decade. In spite of a chaotic global economy, during this period, our fundraising, budget and staff size have more than tripled. (That may seem minor for a dot-com but it’s great news for a non-profit.) We’ve boosted membership and membership dontations, increased funding from foundations, and created an endowment to assure the EFF’s future.

The EFF is now 20, so I’ve been privileged to chair it for half of its lifetime. In that period we’ve seen dramatic victories for free speech, privacy and freedom to program. We’ve stopped e-voting abuse and rootkits in your music CDs. We’ve protected bloggers as journalists and preserved anonymous speech online. We’ve stopped encryption software from being controlled like a munition and had so many other triumphs, big and small. We’ve also seen an expanded technical and activism program, as our technologists have led the way in unveiling things like secret dots generated by colour laser printers that track your printouts back to you and network interference with filesharing by cable ISPs.

We’ve also had our failures, but even those have spoken loudly about the quality of our team. When we took Grokster/Streamcast to the supreme court, our client lost, but the court laid down a fairly narrow standard that allows software developers building new generations of publishing products to know how to stay clear of liability. Our cases against the White House’s warrantless wiretapping program have hit major hurdles, one of which was an act of congress created specifically to nullify our attempts to have a court examine this program — granting a retroactive immunity to the phone companies that did it. Bad as that was, I figure if they have to get an act of congress to stop you, you know you’ve hit a nerve.

We’ve also hit many nerves with our great FOIA team that has uncovered all sorts of attacks on your rights, and continues to do so, and our team of activists and our new international team are working hard to promote our doctrine of free speech and freedom to develop technology around the world. With all our team does, many are shocked to find it is only around 30 people. Still, we could do much more and your donations are still what makes it all happen. I hope that if you believe in the duty to protect fundamental freedoms online, you will work towards that end directly, or consider outsourcing that work with a donation to us.

I am not leaving the EFF — far from it. I will continue to be an active boardmember. In addition, I will begin to re-explore commercial ventures, seek new opportunities, and continue on my quest to become a leading evangelist for one of the world’s most exciting new technologies — robotic transportation. At my robocars site you can see my beginnings of a book on the subject, and why it may have the largest positive effect on the world that computer technology delivers in the medium term. Of course with my EFF hat on you will find growing sections on the freedom and privacy issues of the technology.

During my tenure, I have served with a tremendous group of fellow board members, as you can see from the biographies at the EFF board page. I will continue to work with them to protect your rights as the world becomes digital, and I hope you will all join with me in supporting the EFF with your thoughts and your dollars.


We’ll mark the transition tonight, Feb 10 at the special EFF 20th birthday bash at DNA lounge. This fundraiser can be attended with a requested $30 donation, and there is also a special VIP event earlier where you can mingle more intimately with the special guests, such as Mythbuster Adam Savage. We have quite a program planned.

Apple blocks iPhone App because EFF blog points to my Downfall Parody

Last week, I posted a pointer to my parody of a famous clip from the movie Downfall and I hope you enjoyed it. While the EFF itself didn’t make this video, I do chair the foundation and they posted a pointer to it on the “Deep Links” blog. All well and good.

Some time earlier, an iPhone app developer put together an iPhone app which would display the EFF blog feed. This wasn’t an EFF effort, but the EFF gave them permission to put the logo in the app.

Recently, Apple’s App Store team evaluated the app. The pulled up the EFF blog feed, and played the video, presumably using the built in YouTube playing App which Apple provides for the iPhone. And in the subtitles I wrote, at one point when Hitler was particularly angry, the fake text had him say “fucking.” This is quite mild compared to most of the Downfall parodies on YouTube, and indeed many other videos on YouTube. I debated taking it out, but it’s appropriate for the character to be using strong angry language at that point in his rant. And it’s funny to see Hitler swear in English so I left it in.

The App Store team — dare I call them the Apple App Store content Nazis, or is that too meta? — declared the app unsuitable for the iPhone store. Note that the app doesn’t contain any dirty words, and the EFF blog rarely contains them, and didn’t contain them in this case, only pointing to the video. Of course, the EFF as a free speech organization is not about to declare its blog will be free of bad words in the future, though they are a fairly unlikely event.

Yet this, it seems, is what Apple is protecting its users from. Apple claims that it needs to control what Apps you can install on an iPhone. You need to “jailbreak” the iPhone to install other apps, and Apple says you don’t have the right to do that. Sometimes such walled gardens start off with what you may agree are good intentions, such as stopping malicious apps, or assuring a quality experience with a product. But always, it seems, it devolves to this.

You can also read the EFF Deep Links article on this bizarre denial. Apple seems to have become a parody of itself. How long before we see a Downfall clip where Hitler is an Apple app store evaluator, or a fake Steve Jobs? Of course, that had better not contain any upsetting words, even in links.

Hitler tries a DMCA takedown

New Update, April 2010: Yes, even this parody video has been taken down though the YouTube Content-ID takedown system — just as my version of Hitler says he is going to do at the end. I filed a dispute, and it seems that now you can watch it again on YouTube, at least until Constantin responds as well as on Vimeo. I have a new post about the takedown with more details. In addition, YouTube issued an official statement to which I responded.

Unless you’ve been under a rock, you have probably seen a parody clip that puts new subtitles on a scene of Hitler ranting and raving from the 2004 German movie Downfall (Der Untergang). Some of these videos have gathered millions of views, with Hitler complaining about how he’s been banned from X-box live, or nobody wants to go to Burning Man, or his new camera sucks. The phenomenon even rated a New York Times article.

It eventually spawned meta-parodies, where Hitler would rant about how many Hitler videos were out on the internet, or how they sucked. I’ve seen at least 4 of these. Remarkably, one of them, called Hitler is a Meme was pulled from YouTube by the studio, presumably using a DMCA takedown. A few others have also been pulled, though many remain intact. (More on that later.)

Of course, I had to do my own. I hope, even if you’ve seen a score of these, that this one will still give you some laughs. If you are familiar with the issues of DRM, DMCA takedowns, and copyright wars, I can assure you based on the reviews of others that you will enjoy this quite a bit. Of course, as it criticises YouTube as well as the studio, I have put it on YouTube. But somehow I don’t think they would be willing to try a takedown — not on so obvious a fair use as this one, not on the chairman of the most noted legal foundation in the field. But it’s fun to dare them.

(Shortly I may also provide the video in some higher quality locations. I do recommend you click on the “HQ” button if you have bandwidth.)  read more »

Making of the Video, Legally

EFF Year in Review in Music

It’s been a remarkably dramatic year at the EFF. We worked in a huge number of areas, acting on or participating in a lot of cases. The most famous is our ongoing battle over the warrantless wiretapping scandal, where we sued AT&T for helping the White House. As you probably know, we certainly got their attention, to the point that President Bush got the congress to pass a law granting immunity to the phone companies. We lost that battle, but our case still continues, as we’re pushing to get that immunity declared unconstitutional.

We also opened a second front, based on the immunity. After all, if the phone companies can now use the excuse “we were only following orders they promised were legal” then the people who promised it was legal are culpable if it actually wasn’t. So we’ve sued the President, VP and several others over that. We’ll keep fighting.

But this was just one of many cases. The team made up a little musical animation to summarize them for you. I include it here, but encourage you to follow the link to the site and see what else we did this year. I want you to be impressed, because these are tough-times, and that also makes it tough for non-profits trying to raise money. I know most of you have wounded stock portfolios and are cutting back.

But I’m going to ask you not to cut back to zero. It’s not that bad. If you can’t give what you normally would like to give to make all this good work happen, decide some appropriate fraction and give it. Or if you are one of the few who is still flush, you may want to consider giving more to your favourite charities this year, to make up for how they’re hurting in regular donations.

The work the EFF does needs to be done. You need it to be done. You have a duty to protect your rights and the rights of others. If you can’t do the work to protect them yourself, I suggest you outsource it to the EFF. We’re really good at it, and work cheap. You’ll be glad you did.


Learn more about this video and support EFF!

Plus, we have cool T-shirts and shipping tape.

Censored and uncensored soundtrack on the airplane

A recent story that United had removed all instances of the word “God” (not simply Goddamn) from a historical movie reminded me just how much they censor the movies on planes.

Here they have an easy and simple way out. Everybody is on headsets, and they already offer different soundtracks in different languages by dialing the dial. So offer the censored and real soundtrack on two different audio channels. Parents can easily make sure the kids are on whatever soundtrack they have chosen for them, as the number glows on the armrest.

Now most people, given the choice are going to take the real soundtrack. Which is fine, since now they certainly can’t complain if it does offend them. A few will take the censored soundtrack. But most people should be happy. This is not much work since the real work is creating the censored track. Assuming there is room for more tracks on the DVD, keeping the original one is no big deal.

Congress passes DTOPA -- blocking phones

Today, Congress passed 410-15 the Delete Telephony Online Predators act, or DTOPA. This act requires all schools and libraries to by default block access to the social networking system called the “telephone.” All libraries receiving federal funding, and schools receiving E-rate funding must immediately bar access to this network. Blocks can be turned off, on request, for adults, and when students are under the supervision of an adult.

“This is not the end-all bill,” Rep. Fred Upton (R-Mich.) said. “But, we know sexual predators should not have the avenue of our schools and libraries to pursue their evil deeds.” The “telephone” social network allows voice conversation between a student and virtually any sexual predator in the world. Once a predator gets a child’s “number” or gives his number to the child, they can speak at any time, no matter where the predator is in the world.

Many children have taken to carrying small pocket “telephones” which can be signalled by predators at any time. Use of these will be prohibited.

How to build a "great firewall of China" -- do it poorly

I’m not in the business of helping countries be repressive, but I started thinking what I would do if I were the Chinese internet censor. I don’t think I’m giving them any secrets, but these thoughts may affect our own plans on how to fight such censors.

The most important realization was that I wouldn’t want to make my great firewall really strong. That it was not only easier, but possibly better, to make it possible to bypass it with a moderate amount of determination. Not trivial, as in “hold down the shift key” but not requiring cypherpunk level skills.

The reason is that if I allow such holes, I can watch who uses them, and watching them is more valuable to the secret police than plugging them. And if the holes don’t require fancy data encryption and hiding techniques, most people seeking to bypass the firewall will do so unencrypted, making it far easier to watch what is done. But even if people encrypt, they do reveal who they are. So long as there are not immense numbers, that’s enough to give me a good dissident watchlist.

My goal as censor would be to tune the filtering so that the true dissidents can all bypass it, but make it hard enough that I don’t get so many people on my watchlist that I can’t handle the size of it. The censors know they can’t keep information from the truly determined, even in the most repressive regimes. They just need to keep it from the masses. (Even the masses will hear rumours in any society, but they will always just be rumours.)

This explains why many of the proxies people have put up to let people bypass the firewall remain themselves unblocked. This also can be explained by inefficiency of maintaining the block-list, but this time I am prepared to attribute something to malice rather than incompetence. Especially if the proxies are unencrypted I would not want to block them — unless they go so popular that I could no longer track the users.

This is one of the problems with the Google China decision. In the past, use of the firewall-blocked google.com was not suspicious, though typing certain phrases into it may have been. Now, with censored google.cn, use of google.com suggests you are trying to get past the censorship at least. A big win for surveillance. Google is, wisely, not keeping logs in China, but that doesn’t stop the international gateways from keeping the logs.

(Read on for some anti-censor techniques.)  read more »

Why Google took the wrong course over China

Google’s decision to operate a search service in China, implementing Chinese censorship rules into the service, has been a controversial issue. Inside Google itself, it is reported there was much debate, with many staff supporting and many staff opposing the final decision, as as been the case in the public. So it’s not a simple issue.

Nonetheless, in spite of being friends with many in the company, I have to say they made the wrong decision, for the wrong reason.

Google, and many others including other search engines, argue that their presence there, even censored, will be good for the ordinary Chinese people. The old uncensored google.com is just as available today as it was before, which is to say it works much of the time but is often blocked by the so-called great firewall of China, and blocked in frustrating ways. So, Google can claim it hasn’t taken any information access away from the Chinese, only added more reliable access to the information not banned by the Chinese regime.

To some credit, Google could have moved into China much earlier. Competitors, like Yahoo, got more involved sooner, with poor results for press freedom.

Furthermore, most people agree that search engines, including Google, have been a great and powerful force for increasing access to information of all sorts, and that it will help the Chinese people to get more access to them. We can even take heart that the Chinese regime’s censorship efforts will be futile in the face of the internet’s remarkable ability to route around such barriers.

The point that is missed is that all these claims of benefit can be true, and it can still be the wrong decision.

15 years ago, when I was publishing an online newspaper, I got a customer at a university in apartheid-ruled South Africa. I did not want to do business with South Africa, but I hadn’t investigated things much. My feed was not to be censored, so it would only be a positive influence. They convinced me to do it.

However, later, I asked South Africans about the boycotts. Most agreed that the boycotts were hurting the ordinary South African, the poor black South African, more than they were hurting the ruling Broderbund. That “engagement” (non-boycott) resulted in more good than harm at the individual level. But, in spite of this, many of them said, “Please boycott!”

Why? Because it was doing something. Selling to South Africa was the ordinary path, acting like nothing was going on there. It sent no message, made no statement, was even a light endorsement. Boycotting was the active course, an act of defiance, an act of protest.

Google’s course, however, turns out to be clearer. There are many levels of engagement. We all do business with China; it seems half our clothes and manufactured goods come from there. Only a few call for a boycott of China entirely. Even though we’ve seen, painfully, that just by doing business in China, Yahoo has felt itself compelled to turn over the identity of a reporter to the police so that he could be jailed for a decade.

But Google decided to go beyond doing business in China. They are not just doing business in a repressive country. They have agreed to become the actual implementer of the repression. Their code, their servers, do the censorship.

They are not just selling goods to a repressive country, they are selling arms, to put it in extreme terms.

And that’s too far. That is collaboration, not merely engagement. And that’s where the line must be drawn to “not be evil.”

Serving queries may help the individual Chinese in the short run. Not serving them, however, makes a bold statement, a message to China and to Google’s competitors that can’t be missed, and helps the Chinese people even more in the long run.

Addendum: There’s another reason this is a problem — it makes the people using google.com easier to spot.

Support our goddamned piece of paper ribbon

Ok, so this story is almost surely just an unconfirmed rumour, but the graphic I designed below still makes a nice ribbon.

The first banned blog and blogs for freedom

The EFF is holding a on our 15th anniversary inviting people to describe things that made them decide to fight for freedom.

That seemed like a good time for me to add some details to one of my early stories, about the banning of my moderated newsgroup rec.humor.funny. I've told the the RHF ban story before and even the story of how it led to the creation of ClariNet and I'll be adding more details in my upcoming history of ClariNet later this year.

Today, at 18 years old (Aug 7, 1987) rec.humor.funny and the netfunny.com site qualify as one of the oldest blogs in existence, if not the oldest. The first blog as far as I can tell was the moderated newsgroup mod.ber, created by Brian Redmond in 1984. Mod.ber is long gone, so something else is the oldest blog. Blog, short for weblog, means a personaly created serialized publication on the web. The web, though many people have forgotten it, is and was defined by Tim Berners-Lee as including not just HTTP and HTML but the other procols such as USENET, FTP, Gopher and Telnet that existed before HTTP. So the rare USENET groups that were moderated for content were the first blogs, and some remain today, and this is thus the story of the first banned blog.


(Other suggested candidates for oldest blog include RISKS digest, Telecom Digest and Human-Nets, though they were more discussion boards than blogs.)


I had always been a defender of free speech to that point, but nothing brings it home like being banned yourself. It's also remarkable to me how many threads of my life run through that banning. These include business threads (the creation of ClariNet) and even personal ones (it's how I met John McCarthy, who introduced me to a past girlfriend a decade later.) I wasn't unknown before but the events did a lot to boost my visibility.


Being censored was a remarkably emotional experience. It didn't help that it was on the front pages of the newspaper every day and that the best (if most frustrating ) thing to do was to keep silent and let the press coverage blow over. It did teach me the truth of the aphorism that censorship doesn't protect people from exposure to violent ideas because censorship is violence.


The EFF didn't exist during this period. Had it existed, it would proably have come to my aid. But many others did, which was heartening. And I learned a bit more about how useful satire is as a tool in these battles. Having fought in the online trenches, I was ready to support it when (in another strange coincidence) my friend of 10 years earlier, Mitch Kapor, led the drive to create it. And later, of course, I have become very proud to be involved in it.


Blog-a-thon tag:

American Express threatens me over joke on web site

On my rec.humor.funny web site, I maintain the newsgroup archives, including this 13 year old joke entitled American Expressway.

Today I got one of those bullying "cease and desist" letters from American Express's law firm, ordering me to take down the joke for trademark infringement. Here's the text of the cease and desist

Do these guys know who they are trying to bully? I guess not, here's my response to them:

You can "Screw More" with an American Express Lawyer

Do you know me?

I built a famous company with a famous name, and then satirists made fun of me by taking advantage of the constitutional protections afforded parody when it comes to trademark law?

That's why I retained Leydig, Voit & Mayer, Ltd, the "American Express Lawyers." Should you ever feel your reputation lost or stolen by free speech and satire, just one call gets LVM to write a threatening cease and desist letter -- usually on the same day -- citing all sorts of important sounding laws but ignoring the realities of parody. Most innocent web sites will cave in, not knowing their rights. LVM will pretend it has never read cases like L.L. Bean, Inc. v. High Society and dozens of others. There's no preset limit on the number of people you can threaten, so you can bully as much as you wish.  read more »

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