Yesterday, we wrote about the latest in the long running saga that is Stephanie Lenz's battle (with the help of the EFF) over whether or not Universal Music was right to issue a DMCA takedown for her 29 second video of her toddler son dancing to a (barely audible) Prince song. Once again, here's the video. As we noted in the story, it seemed unlikely that Lenz and the EFF would prevail in getting Universal Music to pay up for the bogus takedown. Joe Mullin, who was in the courtroom during the latest hearing provides some additional details that highlight just why this is going to be difficult for them. The problem isn't necessarily the case or the situation, but the fact that the parts of the DMCA used to push back against bogus takedowns are ridiculously weak. It has been determined that only in cases of "subjective bad faith" would there be fees awarded. That means EFF has to show that Universal knew that this was fair use, and then decided to issue the takedown anyway.

[District Court Judge Jeremy] Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith."

EFF would have to show that there's no way the video was not fair use, first of all. In addition, EFF lawyers would have to show "there was some concerted activity on Universal's part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown." Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn't be enough.

That's a pretty tall order, and a clear weakness in the DMCA in preventing bogus takedowns (an all too common phenomenon). While the EFF properly points out that Universal's employee who sent the DMCA "had no idea what to look for," that still might not be enough to show subjective bad faith -- just laziness.

Additionally, there is some skepticism about if it's worth fighting this through, since the amount of money at stake is minimal:

The amount of damages EFF is fighting for is tiny, in the grand scheme of things. And Fogel also expressed skepticism that EFF could ask for much in damages. He has already limited the amount they can ask for. EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour. They're also asking for compensation $1,275 for the time that EFF attorneys spent advising her pre-suit.

Despite the fact that not much money can be won, in an interview with Ars, [EFF's Corynne] McSherry said that the principle is still important, so that content owners will pause before they shoot out takedown requests.

I understand the principle argument -- but courts often aren't that interested in spending time on such cases, which they believe are wasting time from cases that are more important. At the very least, Judge Fogel appears willing to let a jury weigh in on this one, and has noted that despite all of the hurdles EFF and Lenz face, it's not a complete slam dunk for Universal: "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith."

And so the case moves on. I'm still betting that Universal Music will be happy with the end result, and I worry that the resulting precedent will be used to justify more broad and bogus takedowns. Hopefully, I'm proven wrong.

Updated: At 5pm ET, the USPTO called Jamie to say that a contractor had set this up, and after reviewing their policies, they had stopped blocking such sites...

Well this is bizarre. Jamie Love from KEI was over at the US Patent and Trademark Office (USPTO) for a meeting about "global negotiations on intellectual property and access to medicine." The meeting itself was held in a room that it uses for the USPTO's Global Intellectual Property Academy (GIPA), and there is free WiFi for people to use. Love tried to log onto his own website... and found that it was being blocked as a "political/activist group."

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Love then checked a bunch of other sites... and noticed a rather distressing pattern. For public interest groups who advocate that the existing copyright/patent system is broken, the websites were all blocked. ACLU, EFF, Public Knowledge, Public Citizen, CDT... all blocked. However, if you're a lobbyist for maximalism? No problem! MPAA, RIAA, IIPA, IPI, PHRMA, BSA... come on through. They do allow Creative Commons. Thankfully (for us, at least), they don't seem to block blogs that talk about this stuff. Techdirt is allowed, as are things like BoingBoing, Groklaw and Larry Lessig and Michael Geist's blogs. Though, oddly, a bunch of political sites (DailyKos, TPM, RedState, Rush Limgaugh's site) are blocked.

It may be an "over active" filter -- but it does seem particularly disturbing that all those groups who fight for the public's rights on the very issues the USPTO is dealing with on a regular basis have their sites completely blocked.

The folks over at the EFF have a decent summary of the travesty that was the "stakeholder" events at the latest TPP negotiating round, in which various groups (on all sides) were supposedly given an "opportunity" to express their thoughts on the TPP. We've already discussed some other aspects of it, but the one thing that the EFF writeup makes clear, is that the whole thing is a complete joke. The text, of course, remains "secret," and negotiators flat out refuse to discuss any points raised about the various leaked texts:

The stakeholder engagement events in the morning were followed by a stakeholder briefing in the afternoon. The briefing allowed registered individuals from civil society and the public to ask questions of and make comments to eight out of the nine negotiators who represent a TPP country. The press was barred from the room. Roughly 25 people rose from the audience to ask questions to the trade delegates during the 90-minute briefing period. As predicted, they were not transparent about the talks, revealed little new information, and delegates also refused to make any comments based on leaked version of texts—the only text EFF and other public interest organizations have had access to. It is difficult for public stakeholders to ask accurate questions or receive any substantive answers when the content of the agreement continues to be shrouded in secrecy.

Rossini asked the USTR about its claims that the TPP’s intellectual property chapter will provide for fair use in its IP chapter, and how those public statements starkly contrast with the recent leaked TPP chapter that shows that the US delegation is in fact pushing for provisions that will restrict non-US countries from enacting fair use. Further, they neglected to comment on the fact that the leaked test has the potential to limit US fair use to the three-step test restrictions. In response, the lead negotiator for the USTR dodged the question and stated that they would not comment on issues raised by text EFF has “purportedly” received. The representative did acknowledge that fair use would be discussed during the week's meetings.

This is not "transparency," no matter how many times the USTR claims that they have "unprecedented" levels of transparency around the TPP negotiations. If negotiators won't share what they're even negotiating, and won't respond to any questions related to the actual text that's leaked, the only thing you can discuss are vague generalities not found in the leaked documents. That's insane. And because of that, the negotiators are focused on ridiculous ideas. For example, the EFF writeup notes that negotiators were asked how they could justify negotiating expansive copyright laws in secret after seeing what happened with SOPA and ACTA... and the response revealed just how out of touch the negotiators are. They don't even realize that the DMCA is controversial:

The last question of the briefing came from EFF’s International Intellectual Property Coordinator, Maira Sutton, who raised from the crowd and asked the lead negotiator how they justify pushing for ever more restrictive copyright laws in the agreement even though it has become clear, with the defeat of ACTA in Europe, that users are sick and tired of international agreements regulating their Internet through overprotective intellectual property provisions... In response, the lead negotiator for the US stated that the standard for copyright regulation in international agreements has been the US Digital Millennium Copyright Act (DMCA). They claimed that the DMCA was legislated fairly and is an effective model for copyright enforcement in the US. The representatives' answer contradicted the fact that EFF and others have been arguing for years that the DMCA is fraught with problems. Sutton responded that based upon what we saw in the recent leaked text on fair use, developing countries would not be able to implement such copyright laws as soundly given that the three-step test language restricts signatory nations from determining and establishing fair use as they see fit.

So, the end result is that we have a completely secret back-room process, where the USTR pretends to listen to the public, but won't talk to them about what's in the actual negotiations, and refuses to comment on the little we actually know is in the document thanks to leaks. And because of that, we have completely clueless negotiators pushing something they think is sensible, totally ignorant of the reality.

This could be solved pretty easily: make the US positions and negotiating documents public and allow public comment on them. The USTR still hasn't given a reason why this can't be done. Though, the answer seems kind of obvious: actually being transparent would mean having to listen to the public and various experts point out where they're completely clueless. If USTR negotiators are so insecure in their positions, they shouldn't be in that job.

The Daily Dot's Kevin Collier has a detailed article about his experience as a journalist at the latest TPP negotiating round. He talks mainly about the various "stakeholder" presentations, which are the only access concerned groups have to the negotiators. As we've already noted, the USTR made sure to limit access to the stakeholder presentations, giving them 8 to 10 minutes (reduced from a promised 15) and then scheduling a bunch to run concurrently -- and during a time when many negotiators would likely be out to lunch. From Collier's report, we also learn that the rooms where these presentations were held only had about 20 seats in them -- and there are more than 400 negotiators. He attended the EFF's presentation, but also noted that "Attendees from a nearby presentation exited their conference room and loudly spoke outside the open door to [the EFF's Carolina] Rossini’s room, drowning out her message."

But, perhaps more interesting was Collier's encounter with Michael Schlesinger, a lobbyist for the IIPA (the International Intellectual Property Alliance -- a sort of "super group" of lobbying organizations, including both the RIAA and the MPAA, among others). The IIPA presentation immediately followed the EFF presentation, and involved Schlesinger promising to debunk the "myths" being spread by folks like the EFF. Key among them? That TPP would mandate disconnecting people from the internet. Myth, myth and more myth, Schlesigner declared: there are "no mandates to kick legitimate users off the Internet." Note the weasel word "legitimate."

However, Collier wasn't born yesterday. So he went and found the leaked draft of the IP section that was revealed back in February of 2011. And he noted that it does seem to include mandates for kicking people offline, such as saying that "effective action against any act of copyright infringement" would include things like "removing or disabling access... [and] terminating specified accounts." So, Collier went and found Schlesigner to bring this up, and Schlesinger made a remarkable admission: he claims he hasn't seen the text:

I asked him whether he stood by his presentation's claim that "TPP will result in 'kicking people off the Internet'" was a myth.

"It is," he said.

I showed him a printed-out copy of the section of the TPP leak that referred to "terminating specified accounts" of copyright infringers.

He visibly stiffened. "I'm not commenting on a leaked draft," he told me. "From what I know, the TPP framework would not force anyone off the Internet. I don't know anything about the TPP draft."

Had Schlesinger actually read the TPP, either the leaked chapter or the current draft? I can't say for sure. Legally, he can't have read the latter, because he's a federally registered lobbyist, which would bar him from seeing the text.

Got that? (1) He's not allowed to see the text. (2) He gets upset when someone points him to the leaked text. (3) He... also insists he knows, absolutely, what will not be in the text. How is that even remotely credible?

There have been numerous attempts by various parties (including, in a few cases, the EFF) to sue the US government concerning various aspects of its warrantless spying on Americans. Pretty much all of these cases end up failing, often for reasons that are suspect. However, it appears that the EFF is going to try again. As you may recall, back in July, the feds admitted to Senator Wyden that their own analysis discovered that they had violated the 4th Amendment on occasion in carrying out surveillance under the FISA Amendments Act.

In response to this, the EFF filed Freedom of Information Act requests, asking for documents concerning the situation in which such searches were deemed unreasonable under the 4th Amendment. The feds more or less ignored the FOIA request. So the EFF is suing for violations under the FOIA. It may not be as sexy as suing about the actual spying, but that path has already been shut down plenty of times. I'd guess that this approach won't succeed either (though I hope it does!). But, at the very least, hopefully it can call some attention to the massive secrecy by the feds as Congress gets ready to re-approve the FISA Amendments Act without bothering to understand how it's being used.

We've noted for quite some time that the USTR's idea of "transparency" is laughable. They pretend that letting a few critics speak briefly is "transparency." It's not. Transparency is revealing what you're proposing on behalf of the public. And, even the "hearing from critics" part is increasingly laughable. We recently noted that the USTR had already limited the "direct stakeholder engagement period" to just three hours, which is much shorter than usual. Now, word comes from the EFF that it's become even worse, as the USTR has sent them an email saying that their allotted 15 minute presentation time has been cut down to just 8 minutes, and they're splitting up the presentations into four different rooms -- so most negotiators won't even be around to hear any individual presentation anyway. Here's the EFF's concerns:

We just received an email from the USTR indicating that they are going to cut down the already inadequate 15-minute time allotment for our stakeholder presentation, to a mere eight minutes. In addition, they will all be held in four separate rooms. So not only will the presenters have barely any time to discuss their specific concerns with the agreement, it will literally be impossible for negotiators to attend all the presentations they would be interested in hearing since they will all be held simultaneously in different locations. Moreover, this entire round of negotiations will last 10 full days, and so it seems especially odd that they would need to cut down time for public participation this drastically.

And here's the email from the USTR:

Good evening,

You are confirmed for a stakeholder presentation slot on Sunday, September 9^th during TPP Round 14 Direct Stakeholder Engagement Forum.

Due to space constraints and an overwhelming showing of interest, we will have to limit presentation time to 8 minutes. Each presentation room will have a laptop, projector, and screen. If you would like to give a PowerPoint presentation, all you need to do is bring your presentation with you on a flash drive. No need to send to me ahead of time.
Please plan ahead so that your presentation fills the allotted time. We will have to stop you at the 8 minute mark in order to give every presenter an equal opportunity to make their presentation.

A schedule of presentations will be provided for you at the round. All presentations will be scheduled within the 11:00 am- 2:00 pm block, and take place in Potomac rooms A, B, C or D.

Thank you, again, for your participation. We value your input, and look forward to an on-going conversation regarding TPP.

Very best,

USTR

This isn't transparency. This is transparency theater, so that Ron Kirk can tell people he's being transparent, when he's being anything but.

The US Justice Department really does seem to be completely drunk with power these days. We've written before about how the FBI is famous for abusing the powers of "National Security Letters" (NSLs) that allow them to demand information from service providers, financial firms and the like -- with a built-in gag order. A few years ago, we wrote about an ISP, Calyx, which challenged an NSL it received, and had to fight the DOJ in complete secrecy for years, until the DOJ basically dropped the request and allowed Calyx's Nicholas Merrill to go public with the details of the legal fight.

However, in news revealed this week, there is a second telco that isn't just challenging an NSL -- which is not only expressly allowed under the law, though now the DOJ is required to tell recipients this fact with the NSL -- but also challenging the whole NSL process itself. In response, amazingly, the Justice Department sued the telco, claiming that it failed to hand over the information requested in the NSL, as required by law. There's no way to look at this other than as a vindictive move by the DOJ.

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.”

They did this, even though courts have allowed recipients who challenge an NSL to withhold government-requested data until the court compels them to hand it over. The Justice Department argued in its lawsuit that recipients cannot use their legal right to challenge an individual NSL to contest the fundamental NSL law itself.

All of this came out this week after it having been secret for some time, thanks in part to the EFF's efforts to get some of the information public. The Wall Street Journal appears to have identified the telco in question as Credo, a small Northern California company.

The DOJ's response to the challenge -- suing the telco -- is incredibly aggressive, and is clearly designed to create a massive chilling effect for any other organization who might challenge an NSL, despite the clear legality of issuing such a challenge. This kind of response from the DOJ, however, is par for the course these days. It's been quite aggressive in trying to silence those who criticize its efforts, and this is just the latest example. While the excellent Wired article linked above finds it surprising that the government allowed the evidence of this DOJ lawsuit to become public, I don't think it's that surprising. If the goal is to create chilling effects and intimidate lots of others into not challenging NSLs, then letting it be known that you sued a telco who tried would certainly get the job done.

A bunch of the folks who were instrumental in the SOPA/PIPA fight have been working together over the last few months to build The Internet Defense League, which is launching today. Techdirt is a founding member, along with a number of other organizations and sites, including Reddit, Mozilla, Cheezburger, EFF, Fark, Imgur and more. The process is being driven by the awesome folks at Fight for the Future, who were the ones behind the American Censorship Day effort during the SOPA fight. The launch is today, in part because today is also the day that the new Batman movie opens -- and part of the IDL's concept is that when the internet is at risk, it can shine a "cat signal" to alert the internet to jump in and do something: Believe it or not, they've actually put together a few of these cat signals in real life, so look around tonight in a few cities and you might see one.

Taking a page from Kickstarter, the IDL has set up various tiers to which you can donate to get your own personal mini-cat signal or a t-shirt or some other fun offerings.

Earlier this year, I wrote about the Hacking Society gathering, put on by Union Square Ventures. During that discussion, Clay Shirky brought up the idea of an "Internet Volunteer Fire Department" and Tiffiniy Cheng, from Fight for the Future, explained the IDL and how they were already working on it. You can watch that discussion to get a sense of the thinking behind this effort: We're proud and excited to be a part of this effort. We, like many, hope that the IDL is actually a wasted effort and is never actually needed. But, given what we see happening all the time, it seems unlikely that the IDL will never need to be called into action.

As you probably know, last year, the big ISPs agreed to a six strikes plan (really five strikes), after the White House pressured the ISPs to cave to Hollywood's interests. What many of us noticed, of course, is that this backroom deal left the public out of the equation, which was obvious from the fact that it actually takes away some of the public's rights -- for example, by curtailing the definition of the public domain.

Earlier this year, the RIAA said that the program would finally kick off in July. There were some rumors of delays, and then a bunch of sites (including us) got confused about the actual start date. There have been multiple reports now saying that it will actually roll out later in the fall.

Of course, this has a lot of people wondering just what the delay is about. There might be a clue in a piece over at The Daily Dot, where they say that the director of the Center for Copyright Information (CCI), Jill Lesser, has hinted strongly that the ISPs disagree with some RIAA/MPAA demands:

Jill Lesser, Executive Director of the Center for Copyright Information, told the Daily Dot that the repeated delays were because the coalition wanted an independent review from the American Arbitration Association.

She hinted that disagreement between the ISPs or the lobbying groups might have held up the process. Responding to a question about the delay, she wrote “members are all very involved in internal planning and review of the alert system, which has been and will continue to be a collaborative process.”

Of course, there's one big thing that happened between when the agreement was made and now: the huge public reaction to SOPA. After that, the EFF rightly called for scrapping the backroom deal and starting a new negotiation that actually involved the public. That recommendation was ignored by Hollywood, of course, but the news of some internal fighting hopefully means that the ISPs are asserting themselves a bit more strongly against excessive RIAA/MPAA demands. Of course, once again, this is why it would be nicer if this debate were in public, rather than hidden behind closed doors.

We've covered the story of copyright troll lawyer Evan Stone for a while now. He was one of a group of lawyers who jumped into the copyright trolling business a few years ago, figuring it was easy money to get info on people based on IP addresses, and then demand they pay up to avoid lawsuits. While these cases have been littered with highly questionable behavior by various trolling lawyers, Stone took it to new levels. In one of Stone's cases, the judge -- already suspicious of the whole scheme -- appointed both Public Citizen and EFF to defend the (still anonymous) accused Does against being revealed. While this was going on, Stone was told not to subpoena identifying info. So, Public Citizen and EFF were somewhat shocked when they heard from some of the accused, claiming that Stone had, in fact, subpoenaed their info. After confronting him, Stone tried to get out of the case by dismissing it. Of course, while doing so, he directly insulted the judge and attacked Public Citizen and EFF, claiming he was dropping the case due to the delay in time it was taking (ignoring the serious ethical violations).

Public Citizen and EFF reasonably sought sanctions against Stone for such egregious behavior. Sanctions are pretty extreme, and rarely sought and even more rarely granted. You generally have to do something completely over the top and unethical to have sanctions imposed. The court realized that Stone's actions were not just over the line by were barely in the same time zone as the line, and granted sanctions. The court was pretty clear and direct in slamming Stone, noting that it "rarely has encountered a more textbook example of conduct deserving of sanctions."

Stone appealed, but was found in contempt by the district court for failing to obey the sanctions, and ordered to pay legal fees. Stone, once again, appealed the whole thing -- and in a new ruling, the appeals court not only details the litany of both ethical and procedural misdeeds by Stone (including completely failing to follow the basic process of appealing such a decision), but reaffirms the sanctions against Stone. Basically, everything Stone does makes things worse. He now owes even more money and there's an appeals court ruling that highlights his basic failings even in handling the appeal itself. Here's just a snippet.

On appeal, Stone argues that the sanctions cannot be justified under Rules 26 and 45 or under Federal Rule of Civil Procedure 11 or the inherent power of the district court. He also contends that the attorneys ad litem lacked standing to bring the sanctions motion and are not the proper recipients of the attorneys’ fees awarded by the district court. Stone raises this last argument for the first time on appeal and raised the other arguments for the first time in his untimely motion in the district court to stay sanctions pending appeal, which was filed after this appeal was initiated. None of these arguments, thus, was preserved for purposes of appeal, nor does Stone contend they were. Accordingly, all the issues Stone raises on appeal have been waived....

Nonetheless, Stone asserted, at oral argument and for the first time, that this court can consider his arguments because his appeal is one of “extraordinary circumstances,” involving only “pure question[s] of law [in which] a miscarriage of justice would result from our failure to consider [them].” .... We conclude, however, that no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders. Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars--a tactic that he has employed all across the state and that has been replicated by others across the country.

Time to stop digging.