The Baby Dances On: A Win for Fair Use

Last week saw an important victory in the battle to protect the fair use of copyrighted material online. A Federal Appeals Court held in Lenz v. Universal that the DMCA requires rights holders to consider the important doctrine of ‘fair use’ before issuing a takedown notification. We submitted an amicus brief in this case, and are very pleased to see the court agree with many of our arguments.

Behold, the dancing baby that started the whole thing off:

The outcome of the case underlines and highlights the importance of fair use, and will hopefully cause copyright holders to pause and take the doctrine more seriously than many of them have done in the past.

In the words of the court:

Fair use is not just excused by the law, it is wholly authorized by the law.

This is critical. Sharing excerpts of articles, commenting on the news, and re-blogging portions of popular blog posts have become the lifeblood of the social internet, and important to the community we are building on WordPress.com. We have long fought to preserve legitimate rights to fair use, through the courts, through education of users and copyright holders and by pushing back on DMCA notices that target fair use on WordPress.com. In the last reporting period, we rejected 43% of notices for being either incomplete or abusive.

Our approach to honoring fair use is not meant to help our users to ‘get away’ with anything; we are defending their wholly legitimate rights from abuse. With that in mind, it is heartening to see that the 9th circuit agree with us: fair use is fundamental to copyright law, and all valid DMCA requests must give fair use due consideration.

Not the end of the story

Despite the importance of the decision, we shouldn’t be cracking out the champagne just yet. For one, we wish the court had taken the opportunity to provide a clearer, more objective standard for the consideration of fair use than they have. In our amicus brief we argued strongly for requiring complainants to form an objective belief that material in question was not fair use before submitting a takedown notification. The court relied instead on a subjective standard, that will be difficult to enforce, and provides less deterrent against the trampling of fair use rights.

Most of all, we hope the decision causes rights holders to take a closer look at their process for evaluating potential infringing activity, particularly those who make use of third party agents to send bulk automated takedowns. We have always believed that this process is nuanced, and requires some sort of human review to prevent abuse. We would like the Lenz decision to act as a catalyst for more thoughtful use of the DMCA’s notification and takedown process. There needs to be a recognition that simply finding a ‘matching’ file or text algorithmically does not signal the end of the investigation process, but just the beginning. This sentiment was expressed by Judge Smith in the opinion, who noted that while automated systems can be a useful tool for identifying the use of copyrighted material, that does not mean that they are capable of analyzing whether that use is fair, and therefore legal.

The battle to protect fair use isn’t over by a long shot, but for now – the baby dances on.

Read more over at the EFF.

Header image by Kjell Reigstad.

Defending Net Neutrality

Net neutrality – the principle that providers of internet service must treat all traffic equally – is a cornerstone of the free, open internet. This once-obscure principle has been in the news, as federal agencies, Congress, and even the President debated the proper scope of net neutrality regulations.

Automattic supports net neutrality. We recently joined our users to advocate strong net neutrality rules, and cheered the FCC’s decision to reclassify broadband service under Title II of the Communications Act; a decisive move that supplies a sturdy legal foundation for real net neutrality. Even with this victory, we knew the battle for net neutrality was far from over.

The ink was barely dry on the FCC’s rules when opponents of net neutrality rushed to court in an attempt to dismantle what we, and much of the internet, fought so hard to win. The fate of net neutrality is now in the hands of a Washington DC appeals court, and we’re now adding our voice the case.

Today, we filed an amicus brief with the Court of Appeals for the DC Circuit in the case of United States Telecom Assn. v. FCC (the full brief is below). We’re proud to be joined on the brief by five other leading internet companies: Medium, Reddit, Squarespace, Twitter, and Yelp. Our tools, along with many others, have helped make the internet a global engine of free expression. We deeply appreciate the critical role net neutrality plays in ensuring that speech and expression, on all platforms, is free from interference, throttling or blocking by the gatekeepers who provide access to the internet. Very simply: net neutrality is necessary for free speech to flourish online. On behalf of Automattic, and especially the millions who rely on WordPress to speak to the world, we submit our brief in support of strong, enforceable, net neutrality rules.

WordPress.com, and the WordPress open source project are living examples of what is possible on a neutral internet, open for creation, collaboration, and expression. We urge the court to consider our example, as well the voices of internet users worldwide, as it considers this important case.

 

Leave No Trace!

Earlier this year, we talked about the dangers of relying on third-party bots to chase down potential copyright infringement, and the ironic circumstances that ensue when the rights holder’s own content becomes a target. It’s a frustrating situation for everyone, but this kind of oversight is no surprise when automation is let off the leash. What’s even more shocking are cases in which this paradoxical level of enforcement is employed by humans, as we recently experienced with Subaru for America.

The car manufacturer is currently sponsoring a nonprofit organization, The Leave No Trace Center for Outdoor Ethics. For the uninitiated, “Leave No Trace” is the concept of enjoying the wilderness responsibly, with an eye towards conservation and preservation of natural beauty. A noble cause to be sure, but two WordPress.com users discovered the hard way that a corporation’s actions can sometimes speak louder than its words.

In the application for The Subaru Leave No Trace Traveling Trainer Program, it’s suggested that, among other things, applicants should be able to generate social media content via creating blogs, posting photos, and creating videos. This is exactly what Sam and Jenna attempted to do when they created this blog as part of their application process.

Surprisingly, however, Subaru was less than thrilled with this harmless use of the brand name, and accused our users of trademark infringement and cybersquatting. Apparently the legal department at Subaru wasn’t aware of their company’s sponsored initiative. Yikes!

We passed along the notice to Sam and Jenna with the understanding that we would not be taking any action against their blog as their content does not constitute trademark infringement. In good faith, though, our bloggers took the high road and removed most instances of ‘Subaru’ from their blog to appease the automaker’s demands.

While Subaru reminded us that it “aggressively protects its trademarks and other intangible assets,” it’s unfortunate in this case that they didn’t maintain that same level of overzealous enthusiasm for our users or the great outdoors.

Trouble in Turkey

Earlier this week, nearly all of the more than 77 million websites hosted by WordPress.com were inaccessible to the people of Turkey, due to broad and arbitrary censorship by the Turkish government. We began to hear reports of service outages during the evening of Monday, July 27, Istanbul time. The blocks were apparently removed by midday Wednesday, July 29.

Photo by Erdem Civelek of a 2011 protest for Internet freedom in Turkey. (CC BY 2.0)Citing Turkey’s 2007 Internet Law 5651, authorities sought to take down dozens of sites across the Internet they deemed objectionable. The list included five sites hosted on WordPress.com about Kurdish politics. Those sites were:

Turkey’s Information and Communication Technologies Authority provided WordPress.com with very minimal notice of their action against these sites. Within hours, before we had the chance to review their complaints much less respond, the government moved to block access. But because their order specified not just individual URLs but IP addresses as well, not only were the five targeted WordPress.com sites blocked, but so were the sites of countless nonpolitical bloggers, businesses, reporters, artists, and scientists who use WordPress.com.

A significant portion of the Internet went dark for the 75 million people of Turkey.

Once we learned of the outage, we worked to contact the authorities in Turkey, and had to adjust some of our IP addresses to make WordPress.com sites accessible. Eventually the Turkish government/ISPs chose to block only the specific sites, rather than everything on WordPress.com. Sites hosted on our platform are once again available in Turkey, except for the five listed above (though they remain accessible to visitors from outside of Turkey). We encourage Turkish readers interested in seeing what your government doesn’t want you to see to consider our suggestions for bypassing Internet restrictions. 

In a similar case last week, Turkey also blocked access to Twitter in order to censor images of a deadly bombing and calls for protest.

We share our users’ frustration with this service outage, and we’re continuing to fight against internet censorship in Turkey.

In the near term, this means challenging the government order that led to our blocking — both on the principle that blocking an entire IP range is overly broad and never the right answer, as well as objecting to the inclusion of one of the sites on the government’s blacklist. PKKONLİNE was in fact railing against the PKK and violence, not supporting terrorist activities, as the statue cited in the government’s decision requires. Apparently these kinds of mistakes can be made when you hastily pull together a lengthy blacklist, based on largely superficial information. You can read a rough English translation of our appeal to the Turkish court here (pdf).

This week’s events show once again that whenever a government decides to censor the Internet, everybody loses — not just a regime’s targets but a whole nation — and it only serves to strengthen our resolve to resist censorship wherever we may find it.

Photo by Erdem Civelek of a 2011 protest for Internet freedom in Turkey. (CC BY 2.0

Transparency Report Update

We’re pleased to release the latest update to our transparency report, covering the period of January 1 – June 30, 2015.

We try to make each new transparency report more…transparent, by adding new and more detailed information about the legal demands we receive, our responses to them, and the internal policies that guide our actions.

In this report, we’ve added a few new pieces:

  • We’ve identified our top DMCA complainants. From here on out, we’ll include a chart showing the organizations that submitted the greatest number of DMCA notices in a reporting period. Not surprisingly, the list is dominated by third party take down services, many of whom use automated bots to identify copyrighted content and generate takedown notices. We’ve written in the past about the many potential pitfalls of this practice. In the future, we may report statistics on the success rate of notices submitted by each of our top reporters, in hopes of identifying those who use automated tools thoughtfully, as they should be used: in conjunction with human review to ensure that they’re not targeting things like fair use (or even their own clients!).
  • We added more information on the processes we follow for reviewing and acting on (or rejecting) the DMCA notices we receive. The Copyright and DMCA page includes information on how our DMCA process works, for both users and copyright holders. The Our DMCA Process page explains the steps we follow to review and act on the DMCA notices that we receive. We’ve also published all of our DMCA forms, emails, and notifications on Github under a Creative Commons license. We hope this furthers our goal of transparency and serves as a useful resource for other website owners and companies who want to comply with the DMCA in a user-friendly fashion.
  • For DMCA notices, we are now reporting more granular data on the content we remove in response to a notice. In some cases, we receive a DMCA notice for content posted to a site that violates our Terms of Service (like a spam or warez site, for example). In prior reports, we counted both the suspension of these types of sites and the takedown of individual copyrighted files from legitimate sites, in the category of “notices where some or all content was removed.” Beginning with this report, we are separately reporting the percentage of notices where we remove copyrighted content from legitimate sites. In this reporting period, for example, if we counted suspended sites as rejected notices, the percentage of notices where some or all content was removed would be 33% (down from 57%).
We hope you find the transparency report useful and informative. If you have suggestions for how we can improve the report, or information you’d like to see included in future reports, please let us know!

ICANN Considers Relaxing Domain Registration Privacy; Automattic Objects

We’ve said it time and time again: user privacy is important to us. We’re vigilant about protecting it on WordPress.com, and we’re always on the lookout, ready to weigh in on policy proposals that might curtail the privacy that we and our users value so highly.

Today, our focus turns to the Internet Corporation for Assigned Names and Numbers (ICANN), the organization responsible for coordinating the internet’s naming system, such as domain names. ICANN is currently considering a proposal that would prohibit many domain owners from using privacy and proxy registration services.

What exactly does this mean? If you’ve ever registered a domain (and millions of you on WordPress.com have), you may have noticed an option to make your personal information, such as your name, address, and phone number, private. This is great for those who want to publish anonymously or those who simply value more privacy. However, ICANN is considering precluding anyone who uses a domain for “commercial” purposes from private registration. “Commercial” use has not yet been defined in this context, but it could affect more domain owners than you think; it’s not uncommon for a website to run ads or include affiliate links to cover costs. Needless to say, we strongly oppose this proposal.

Who wants this change? Large copyright holders (like movie studios), for starters. Proponents of this proposal argue that website owners should be held accountable and that they need means to identify those that are abusive. However, there’s already a means to do this — it involves due legal process and justifying that the information they’re seeking is relevant or necessary to a lawsuit or investigation.

If the proposal were adopted, all of the privacy protections we provide our users on WordPress.com, as well as those that currently exist under the law, would largely be for naught, easily circumvented by a quick WHOIS search. We work hard to design and implement our rigorous privacy protections because we’ve seen firsthand how requests for user information can be used as a means to silence or retaliate against anonymous speakers. Every day we see our users depending on the privacy and anonymity afforded to them to engage in thoughtful, compelling speech and journalism.

We believe this proposal would significantly harm communication, commerce, and most especially, anonymous speech online, so we ask ICANN to reject the current proposal to limit privacy-protecting domain registration services.

You can read our full filing in opposition to the proposed rule here.

More Transparent Content Removal

Every day we receive a significant number of requests to have content removed from sites hosted on WordPress.com. Many of these involve alleged copyright violations making use of the DMCA takedown process, or the publication of sensitive private information. We review every single one by hand to ensure that the processes are not being abused for the purposes of censorship, and are constantly looking to improve how they are handled.

Content Removal Image

Before now, whenever content was removed from sites in these situations, there was no visual indication to explain why things may not be displaying correctly, with visitors confronted with a 404 page not found error instead. This was far from an ideal situation, and as part of our commitment to increased transparency, we are proud to be able to say that this is no longer the case.

From today, when content is removed from a WordPress.com site as the result of a DMCA takedown, or a private information complaint, a notice will be placed on the site in question to explain exactly what content has been removed, when, and why. In the case of images, a placeholder will be displayed. We hope this will help ensure that on those occasions where we are required to intervene, that the reasons for doing so are as clear as possible.

Read more about our DMCA policy here.

Read more about our private information policy here.

In addition to implementing this new process, we have also updated our documentation with new pages on how we approach the DMCA in general. You can find this at the following links:

https://en.support.wordpress.com/our-dmca-process/

https://en.support.wordpress.com/copyright-and-the-dmca/