There are some Internet questions that aren’t easy to answer online.
Let’s say you’re a citizen journalist who wakes up one morning to an alert from Google that, due to purported copyright infringement, it has removed one of your blog posts about a student in Scotland who’d been posing online as a Syrian lesbian to score a book deal. You know the copyright claim is crap, but what then?
“Yes, I’ll use the F-word: Frightening,” says gay-rights blogger Michael Petrelis, whose blog, The Petrelis Files, received such a “takedown notice” in August 2011. “To get that email from Google, I just knew, to keep my stress level down I was going to need expertise to challenge Google. Just saying that—‘challenging Google’—gives me tingles in a way. I’m a person with AIDS, struggling with disability in San Francisco, who now has to navigate Google’s rules.”
During the last decade-and-a-half, major online communities—most notably Google’s Blogger.com and You- Tube—have instituted a largely automatic, frustratingly bureaucratic system of censor-first self-regulation when it comes to alleged copyright infringement. It’s easily, and often, abused and tends to favor aggressive “trolls,” who use the system as a weapon. These trolls are sometimes corporate legal teams; other times, they’re just independent bullies seeking to block critical content from release.
“I think he saw me as an easy target,” Petrelis says of his troll. “He’s certainly intelligent, smarty-pants enough that he knew how to lodge the right kind of complaint with Google.”
After talking to attorneys at Harvard University’s Citizen Media Law Project, Petrelis was referred to a San Diego legal clinic, New Media Rights, whose executive director, Art Neill, personally talked him through the process and helped him file a successful counter-claim.
“For everybody who was exposing him as a fraud, [the faux Syrian] tried to get their sites taken down and their posts taken down using DMCA [Digital Millennium Copyright Act],” Neill says. “I think one of the problems with those kind of small-scale copyright takedowns is, obviously, folks don’t have an attorney on call, and they’re sort of worried because they get nasty letters that say, ‘You’re going to owe $150,000 for infringement,’ and they’re, like, ‘Well, I don’t want to lose my house... so I’m not going to do anything; I’m just going to let the content bully win.’”
New Media Rights (NMR) is one of the few programs in the country that offer one-to-one, free legal assistance to Internet users and creators. Since 2005, NMR had been a program of the Utility Consumers’ Action Network (UCAN), the well-regarded public-interest watchdog group, but NMR separated this year as political infighting and alleged financial mismanagement brought UCAN to its knees. NMR has found a new nonprofit home at California Western School of Law and a new physical home at the Ansir Innovation Center in Kearny Mesa. Now, with a solid foundation, NMR is prepared to move forward in not only championing the rights of bloggers like Petrelis, but also musicians, filmmakers and programmers.
A two-lawyer operation working on a budget of less than $135,000— hardly a competitive salary for one corporate intellectual-property attorney—NMR now has the administrative resources of the university, as well as a stable of law students eager for legal-clinic experience. That was a big part of the sell for Cal Western.
Neill says the idea for NMR began while he was at law school in 2004. A musician on the side, he was looking for ways to blend his interests. Meanwhile, social media was beginning to show its potential. “Certainly, this generation of students coming into law school have a great deal of personal experience with this,” Associate Dean for Academic Affairs William Aceves says. “I think for students to be able to learn more about how the law regulates their communication, their email usage, their Internet usage, their Facebook and Twitter accounts, I think that’s particularly interesting to them, and also gives them a chance to actually enhance their skills set with substantive law by working on real cases with real clients.”
“I realized that all of that stuff implicates the law,” he says. “I realized that there’s millions of folks that are just going to need to have more awareness of the laws they’re interacting with when they share content, when they’re out there speaking on the web.”
After graduation, Neill found a receptive outlet at UCAN and its then-director, Michael Shames, who’d begun to field calls from local businesses and artists on web matters.
“The musicians, the artists, they’re all wandering through this sort of Internet wilderness that has developed,” Shames says. “The rules, the laws are not clear, and they’re not clearly enforced. So, creating New Media Rights was the means by which we could sort of try to bring order and provide some degree of sheriffing to what otherwise was a Wild West frontier, and, to this day, still is.”
Scrolling through his database, Neill counts hundreds of individuals who’ve been helped, including the high-profile case of Canadian-American pop-culture critic Anita Sarkeesian, founder of Feminist Frequency, whose music-video-style commentary on video-game characters, “Too Many Dicks,” was inexplicably removed from YouTube in early 2011. But Neill says that roughly 30 percent of NMR’s interactions are with locals, whether it’s helping freelance artproject manager Susan Myrland recapture a personal website that had been taken over by spammers or representing a San Diego app developer when his word game for Android devices was removed from the online store after Hasbro filed a complaint.
In that case, Neill went head-to head with the corporation’s legal team, explaining in detail how the game didn’t infringe on Scrabble. Hasbro backed down, but some of the damage was already done.
“A few weeks after they had withdrawn their DMCA notice, they actually launched Scrabble on the Android platform,” says David Almilli, CEO of Second Breakfast Studios. “I’m not sure if it was a tactic to disrupt my ecosystem to make their app look like a better player on the Android market, but I had a good number of users using Wordsmith, and it actually dropped significantly during that month of down time.”
Much of NMR’s work is geared toward preventive lawyering—that is, educating media creators to prepare in advance so they don’t need an attorney later. This is particularly important when an artist or writer intends to publish something they foresee could invite pushback.
Trolls “are going to find that one thing and that’s what’s going to give you a lot of problems,” says NMR’s other staff attorney, Shaun Spalding. “General resources can’t help with that. I’m pretty happy I’m able to use how much I know about board games, movies, video games for an actual purpose of helping someone else, and not just for doing well in trivia contests.”
NMR regularly receives grants for outreach through the California Consumer Protection Foundation and was recently awarded an $18,200 grant from city of San Diego’s Small Business Enhancement Program to work with 30 local businesses and host a series of workshops. The organization is also prolific in producing instructional web videos, including its 120-part “LAGD” (Legal Assistance for Game Developers) series, which features interviews with popular game designers, such as Edmund McMillen of Super Meat Boy (a central figure in the 2012 documentary Indie Game). NMR is crowd-funding now for “Season 2” of LAGD.
Then there’s NMR’s policy work. Neill and Spalding are gearing up for a battle over the implementation of a small-claims-court system for copyright infringement cases. At the end of November, Neill provided testimony at a U.S. Copyright Office hearing on the concept, which he says may not be a bad thing, but, done haphazardly, could be catastrophic.
“There’s a lot folks at the table saying, ‘Hey, we want to be able to sue Internet users, and we want to be able to sue people for copyright infringement,’ but there’s not a lot of people saying, ‘Well, wait, what are the consequences of that?’” Neill says. “Should these folks have the right to defend themselves? Shouldn’t they have representation? Aren’t there going to be a lot of dolphins caught in the tuna net, getting screwed in this process? [We’re there] to make sure there’s due process, that the process is fair, and this isn’t just some new way where large media companies or copyright holders can simply steamroll the little guy.”