by Mike Masnick
Mon, Jul 15th 2013 8:08pm
by Mike Masnick
Fri, Mar 1st 2013 11:50am
Federal Judge Alex Kozinski Talks About Using Tor To Surf Silk Road & The Armory For Drugs, Weapons And Hitmen
from the don't-mess-with-alex dept
By far the most entertaining part of the evening was Kozinski sharing (with screenshots) his experience exploring the "hidden web." He claims that when he told his children about the topic of the talk, they told him he needed to explore the hidden web. So, "with some trepidation," he downloaded Tor and dove in, starting out at Silk Road, which still remains the most well known hidden website out there. As we've noted in the past, for all the excitement and press attention Silk Road has received for being a totally anonymous online marketplace used mainly for buying and selling drugs and other illicit goods, it still is a fairly small business. Still, Judge Kozinski detailed his exploration of the market, including checking out various drugs (including many he'd never heard of before). He also looked into the ability to buy forged documents and lots of counterfeit software.
He marveled at how much like regular online stores these sites were -- including things like seller ratings -- and compared it to his experiences with eBay. Of course, he also noted that it's entirely possible the whole thing is a front by the feds to track these kinds of things, but if so, he was impressed with the level of detail.
While much of this was entertaining, the point (I think!) was to highlight all of the kinds of things that anonymity enables -- but it wasn't in a necessarily negative or judgmental way (even if he's suggested his concerns in the past). Instead, it was more of a realist approach to what's happening out there and how there are interesting challenges presented concerning both anonymity and privacy -- which he notes are related but not the same thing. To show the difference, he discussed your neighbors across the way, where they may not be anonymous to you, but what they do in their bedroom is kept private from you. Yet, take a random couple in Times Square on New Years Eve doing the same thing -- and they may be "anonymous," but not private at all.
While he did express some concerns about where all this leads, including a dig at anonymous comments online, his biggest concern appeared to be about government abuse thanks to technology. He spent a fair bit of time on the NSA's infamous spy center in Utah, which is supposedly storing a ridiculous amount of information on us all. He pointed out that having that much information in the hands of government is dangerous, and suggested it's likely to be abused. As an example, he pointed to the story from all the way back in 2001 when he and other federal judges discovered that the feds were monitoring their internet usage, something the judges had never been told about.
He explained that the software had been put on the computers to protect the judiciary intranet from being attacked by hackers from China or whatever, but most of the time they weren't doing anything at all, so it wasn't long before the scope began to creep, and someone realized that, hey, if that monitoring software is on those computers, it could also be used to spy on what sites judges were surfing. The judges only found out about it when a judge was called out for his inappropriate surfing habits.
While he didn't say anything explicitly about it, it seems like this should be a pretty clear warning to folks who are supporting laws like CISPA. When you increase information sharing to the government for one purpose, you can almost guarantee that there will be scope creep over time. Someone will point out that "hey, we're already doing this for security, so why not for spying on people...."
Similarly, Kozinski is worried about how all this number crunching and data collection by governments means that people are going to be "targeted" for heightened scrutiny based on some algorithms, even if their activity is perfectly legal. He even noted that he's assuming that his own decision to download Tor and check out Silk Road and other sites probably means that he set off some alarms and may be in for heightened scrutiny. When asked about that later during the Q&A, he admitted that it might just be his own paranoia, but he wouldn't be surprised if it was true.
When asked about how to push back on all this government surveillance, he said that everyone keeps pointing to the courts, and saying that it's their responsibility to limit the government's powers, but suggested that the courts are limited, because it's not clear that anonymity and privacy are really Constitutional issues. Or, he said, if there is a basis for them in the Constitution, it's fairly weak, and could easily be overcome by "other concerns." Personally, I think that he downplayed both the First Amendment's protection of anonymity as confirmed by the Supreme Court, as well as the 4th Amendment's (too often ignored) protection of privacy. Still, he seemed to think that this was really an issue where it was up to Congress to prevent abuses. That's kind of depressing if you remember Congress' recent "debate" and subsequent rubberstamping of the FISA Amendments Act, giving the NSA much more power to spy on Americans with little oversight.
One other bit of useful info: he seemed fairly convinced by Justice Sotomayor's statements on the 3rd party doctrine in the US v. Jones case about GPS tracking. If you don't recall, the 3rd party doctrine basically says that you don't have privacy rights in information that you've left in the control of a third party. That's obviously quite problematic in an age of cloud computing, where all your data is probably in the hands of third parties. The government has been relying on this fact to access all sorts of data with little oversight for quite some time. It's good to see Kozinski hint at the idea that the 3rd party doctrine just isn't reasonable any more in the information era.
There were plenty of other tidbits, but basically it was an interesting discussion of privacy and anonymity, with a strong focus in how the government is collecting way too much information on us all these days. There was also some brief talk of how much information companies are collecting too -- including his apparent uncomfortableness with things like Google Maps' Street View and Satellite View (he joked about how you can see him sunbathing nude if you can find his house). But, for the most part, he seemed to think that this was an area where the government was doing a better job keeping companies somewhat in check.
Oh yeah, and one other amusing tidbit: in talking about how easy it is to track us all due to our mobile phones, he asked how many people had smartphones (or, more specifically, "phones with email on them") and noted that when he talks to lawyers, they all do. He noted that lawyers always had their email near them to respond to clients quickly, because otherwise you get fired, but this cool tool "given to you by work" just shackles you while also denting your privacy. And then he claimed that when work gives him a smartphone, he gets it without a sim and then sells the device on eBay. Maybe he should try selling it on Silk Road next time...
by Mike Masnick
Fri, Apr 20th 2012 11:04am
Judge Alex Kozinski Fears That People Share Too Much Info Online; But Does That Mean We Give Up All Privacy Rights?
from the seems-difficult-to-follow dept
Judge Kozinski recently spoke at a Stanford Law symposium, and the text of his speech has been posted online, and in it, he admits that he's not particularly adept with modern technology -- in fact, he refers to himself as a "troglodyte." However, he then goes on to talk about how modern technology is destroying our privacy -- but not because of the technology itself, or the government (even though he discusses both things), but in the way in which people themselves share all sorts of private info.
Certainly, much of the talk is a thoughtful examination of how privacy norms have changed over time, and the role of technology, government and culture as it happens. Here's just a snippet:
I flew here today from Los Angeles. I drove to LAX, landed at San Jose Airport and a student drove me to Palo Alto. Who knows this? Big Brother knows. Why? Because I carried my cell phone, and who doesn’t carry a cell phone nowadays? The cell phone logs in every few minutes to a nearby cell tower, so if you obtain the telephone company’s records, it’s pretty easy to piece together exactly where I’ve been all day. And, if you have the student’s cell phone number, you’d also know how long we spent together and where we went.That, of course, focuses on the technology and government aspects. But then he gets into the human and cultural aspects, in talking about a somewhat famous case, involving a guy who sued a former lover because she wrote (sometimes graphically) about her time with him on a public website (that case got a lot more attention because the two were both Congressional staffers). Here, you can clearly sense the "the kids these days!" tone begin to seep through:
Does the government obtain such records to check people’s alibis in case they are suspected of crimes? You bet they do. In fact, if you left your phone at home that day, so there’s no cookie-crumb trail to show you were somewhere else, prosecutors will argue that you not only committed the crime, but premeditated it as well—by leaving your cell phone at home so your steps couldn’t be traced. China has taken this to another level: Earlier this year, Beijing officials announced that they intend to use cell phones to monitor the movements of twenty million residents—“to ease traffic and subway congestion.”
But who needs cell phones? That’s old technology. Someday soon they’ll decide it’s easier to watch all of us, all the time. If you think it won’t happen, just look at Mexico: Last year, the city of Leon partnered with a biometrics firm to install iris scanners in public places from airports and police stations to stores and restaurants. The scanners will identify up to fifty people per minute, and will be used for both law enforcement and commercial purposes.
A while back, for example, the United States District Court for the District of Columbia saw the filing of a lawsuit titled Steinbuch v. Cutler. Steinbuch (a man) and Cutler (a woman) had been staffers for U.S. Senator Michael DeWine. They met after hours, had a few drinks and then went to her home and engaged in the type of activities that used to be considered private. The following day Cutler posted the following gem: “To answer The Question, no, RS and I did not fuck. (It is my ‘week off,’ if you recall.)” This, in my humble judgment, is already too much information. But the posting doesn’t stop there—oh, no, it’s just getting started. We learn, for example, that RS “[h]as a great ass,” that he had two ejaculations, and that he likes spanking.While this might come off as just as someone not liking the way "the kids these days" act, he's actually making a rather important legal point, even if I don't agree with it. As you (hopefully) know, the 4th Amendment against unusual search and seizure is our main privacy protection in the US. While other countries have more explicit privacy laws, the US relies on the 4th Amendment mostly. And the key standard that is often discussed around the 4th Amendment is whether or not the individual has a reasonable expectation of privacy in what they were doing. If there was a reasonable expectation of privacy, and the government spied on them without a warrant, that's (probably) a violation. If there was no reasonable expectation of privacy, then there's simply no Constitutional issue.
During the course of the succeeding two weeks, Cutler continued to see quite a bit of Steinbuch, both figuratively and literally. And she assiduously reported their activities to the world, along with those involving other men with whom she was having sexual relations, including some for money.
This puerile and narcissistic account was picked up by another, better-known Washington blog and, for reasons I have difficulty understanding, soon tout-le-civilized-monde was reading about Steinbuch and Cutler’s sexual escapades. The upshot of all this was that Cutler lost her job with Sen. DeWine, but had no time to regret it because she soon got a six-figure book deal and a photo spread on Playboy.com. Meanwhile, Steinbuch brought his lawsuit, complaining of—you guessed it—invasion of privacy and infliction of emotional distress. He cut and pasted every word of Cutler’s blog into his complaint, which is where I read it.
There may only be a handful of people like Cutler and the people I saw on Jerry Springer—though it seems there is actually an endless supply of them. But we can all try to find comfort in thinking that these people are not like us—that they really are an aberration, representing a view of privacy and decorum that is quite different from that of ourselves and our friends and neighbors. But this is an illusion, because for every Jessica Cutler among us, there are the thousands or millions who are prepared to read their exhibitionistic writing and to watch the TV shows where they air their dirty laundry. By providing them an audience, we encourage others to engage in similar conduct, and we acquiesce in the erosion of privacy for all of us.
Of course, in this day and age, that barrier isn't always clear -- which is why (for example) there's been so much dispute (and mixed judicial rulings) on the legality of GPS tracking without a warrant by law enforcement.
That, of course, is an interesting subject in general. However, Kozinski takes it a step further, in that he appears to suggest that the fact that people are more public with their lives on the internet changes their own "reasonable expectation of privacy" and that may lead to the government having much greater rights to spy on people.
Of course, that is one of the great dangers of the internet and particularly of Web 2.0: No matter how private, dangerous, hurtful, sensitive, or secret a piece of information may be, any fool with a computer and an internet connection—which means just about everybody—can post it online, never again to be private or secret. They say that removing something from the internet is about as easy as removing urine from a swimming pool, and that’s pretty much the story. As soon as somebody posts an item, someone else picks it up and e-mails it to his friends, and friends of friends, and then bots and crawlers pick it up and the Wayback Machine makes sure the genie is never, ever to be stuffed back into the bottle.While Kozinski leads readers down the garden path of logic with his step by step discussion of how privacy is changing, I find that bolded section above to be a big leap of logic -- and one that doesn't truly make sense. The shared information that he discusses and worries about is shared by choice. Kozinski may not like it, and may find it distasteful and crude (hell, it probably is distasteful and crude), but that does not automatically mean that the government should then be able to assume that all information has no reasonable expectation of privacy.
Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.
Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”
While I know that Judge Kozinski is thoughtful and nuanced in what he's discussing, this description seems to stray way too far into "well, I don't like this behavior, so I'm just going to say you crazy people deserve what you get if the government spies on you." That seems like a novel interpretation of the Constitution, and one that I find troubling. Yes, people may have less privacy today than in the past. Yes, they may reveal all sorts of things about themselves online -- whether on purpose or not. However, that doesn't necessarily make us our own enemies -- nor does it mean that, because some people display their sexual details, everyone loses the privacy over that info. Most importantly, none of that means that the government can then ignore privacy rights, just because some people don't mind sharing their private info.
That is, just because Judge Kozinski doesn't like that people share "too much information," it doesn't mean that the government should then be free to collect too much information, by claiming that there is no expectation of privacy in those situations.
by Mike Masnick
Mon, May 16th 2011 6:58pm
from the poor-winklevii dept
by Mike Masnick
Mon, Apr 18th 2011 8:54pm
Winkelvi Officially Ask 9th Circuit To Rehear Their Case About How $160 Million For Not Doing Much Is Not Enough
from the how-do-you-spell-greed? dept
However, despite the court and plenty of commentators telling the Winklevi to cry all the way to the bank with their money, the twins and partner Divya Narendra, have in fact filed for an en banc hearing, asking the full slate of 9th Circuit judges to rehear the case, rather than just the standard three judge panel who heard the original. To be honest, I'd be surprised if the court agreed to the rehearing, but you never know. Typically, they'll do a rehearing where there really are serious questions of law, and significant conflict in how the judges view things with the case at hand. I just don't see the specifics of this dispute rising to that level. If that fails, the only choice left will be to appeal to the Supreme Court, who we can also hope will recognize more important issues at hand and pass on hearing the case.
by Mike Masnick
Mon, Apr 11th 2011 3:40pm
Winklevoss Twins Told To Accept The Millions Facebook Has Already Given Them And To Stop Complaining
from the this-ends-now dept
The full ruling from Kozinski is, in typical Kozinski fashion, an entertaining read. He points out that the point of the original settlement was so that everyone could "get on with their lives." Kozinski is particularly harsh on the Winklevosses for trying to back out of the agreement over a claim of valuation issues when they clearly knew what they were getting into:
The Winklevosses are sophisticated parties who were locked in a contentious struggle over ownership rights in one of the world’s fastest-growing companies. They engaged in discovery, which gave them access to a good deal of information about their opponents. They brought half-a-dozen lawyers to the mediation. Howard Winklevoss--father of Cameron and Tyler, former accounting professor at Wharton School of Business and an expert in valuation--also participated.Kozinski also knocks the Winklevi for being marketplace losers resorting to the courts to sue those who beat them in the market:
The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. And the courts might have obliged, had the Winklevosses not settled their dispute and signed a release of all claims against Facebook. With the help of a team of lawyers and a financial advisor, they made a deal that appears quite favorable in light of recent market activity.As Kozinski notes, while they've been arguing about all of this, Facebook has continued to appreciate in value, and their "settlement" is now worth much more than they even thought they would get originally. He concludes it simply:
For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.And so, they "lose." Of course, it's hard to see how getting $160 million for totally failing in the marketplace can be considered "losing."
by Mike Masnick
Mon, Mar 7th 2011 11:44am
from the thinking-through-the-liability dept
However, not everyone appreciates the reasoning behind secondary liability protections, and a trio of (separate) speakers at Friday's event all focused on their own reasons for disagreeing with the basic premise behind Section 230, with two of them even suggesting that the law should be changed. What troubled me was that I think all three were confusing and conflating different ideas, and doing so in a way that puts some basic First Amendment principles at risk.
The first was Ken Zeran, who is famous for his role in Zeran vs. AOL -- the seminal lawsuit that more or less helped define the protections offered by Section 230 of the CDA. Zeran, an artist and a journalist, sued AOL after he was subject to a series of bullying attacks via AOL. Basically, someone anonymously posted some offensive comments (basically speaking out in support of Timothy McVeigh and the Oklahoma City bombings) and included Zeran's phone number. After asking AOL to remove the posts, and having more posts come back, Zeran sued AOL for negligence in failing to remove all such comments. He eventually lost the case, as the court found that AOL, as a third party, was clearly protected under Section 230.
Zeran speaking was a big deal, because for almost fifteen years, he has refused to speak out about the case, turning down all media requests. In fact, he noted that he initially turned down Eric Goldman, who organized this event, but after thinking about it, and realizing who else would be there, he wanted to take part, and read a statement. That statement, however, was quite a doozy. While you can understand why Zeran is upset about Section 230, he seems to have conflated anonymity and the fact that some people do bad stuff online with the idea that (a) anonymity is automatically bad and (b) that anyone who allows anonymity is equally bad.
He called the internet an "engraved invitation for anonymous crime," ignoring the fact that it's really not that anonymous and there are all sorts of tools for uncovering people who have broken the law (something Zeran never did with his own attacker -- who he says he believed was just someone who chose him at random). Zeran did a lengthy bible quote about the "Good Samaritan" in response to the fact that part (c) of Section 230 mentions how it's about protection of "Good Samaritan" efforts. His argument is that Section 230 actually encourages the opposite behavior, in that it encourages service providers to do absolutely nothing to protect people (like himself) online, because they have no liability.
Unfortunately, Zeran is slightly misguided here. He is correct that third parties have no liability, but he is totally misunderstanding the context. Section 230 was put in place due to an earlier court ruling, which said that if a service provider did any editorial work, it could be held liable for the speech of its users. The inevitable result of such a ruling is that service providers would do absolutely no filtering/monitoring whatsoever, because doing any such thing opened them up to liability. What Section 230 does is allow them to monitor and filter what they feel is appropriate, without facing liability. It actually encourages more filtering and monitoring by service providers, by protecting them for their good faith efforts to cultivate the content they host.
From there, Zeran went on to propose an amended version of Section 230, which basically would make any website liable if it didn't take down content when contacted by law enforcement claiming that the content was violating the law. This raised a lot of eyebrows in the room, as it basically hands a ton of power to law enforcement to censor content at will -- something we've noticed law enforcement has a history of violating. Of course, this ignores the fact that Section 230 already does not apply to criminal law violations, so it's difficult to see why his amendment is needed. But making it explicit risks all sorts of dangerous incentives for the government to block expression. Someone in the audience pointed this out, highlighting previous cases of police "protecting friends" by claiming certain claims were violating the law when they were not, and all Zeran could say in response is "well, nothing's perfect." Sure, nothing's perfect, but when you're presenting a law that pretty clearly goes against the First Amendment, you should have a better answer than that.
Zeran, unfortunately, seemed completely oblivious to the idea that his proposed amendment would absolutely be abused to block speech. Mark Lemley, from the audience, pointed out that we already have an example of this with the DMCA's notice-and-takedown procedure for copyright content, and it is abused quite frequently by people seeking to stifle content. Expanding such a regime beyond copyright would almost certainly lead to even greater abuses. Again, Zeran didn't have much in the way of a response beyond "nothing's perfect."
In the end, Zeran was definitely the victim of a tragic circumstance, and as is too often the case in such a situation, his response is to throw out the baby of the First Amendment with the bathwater of abuse. He seems to think that anonymity itself is a bad thing, and spoke out a few times against the concept of anonymity, refusing to acknowledge that anonymity has many positives as well.
Judge Alex Kozinski
Next up in those who are at least, less than enamored with Section 230, was judge Alex Kozinski. Kozinski, as we've mentioned many times before, is an appeals court judge here in the 9th Circuit, and renowned as one of the most entertaining judges on the bench. He's been involved with a few Section 230 rulings, most notably, the Roommates.com ruling, which is one of the very few cases that put a significant limit on Section 230 -- though it's still being argued just how significant that limit is.
He certainly didn't fail to deliver on the entertainment level, tossing out a variety of amusing quips, kicking off with a mention that earlier in the day he'd received an email from Chris Cox -- former Congressional Rep. (and SEC boss) who was an original author of Section 230 -- who was at the event as well, with Cox telling Kozinski that he thought Kozinski got the Roommates ruling right. Kozinski noted that this was sort of like being a Talmud scholar for many years and suddenly receiving a direct message from God saying "it's okay to eat swordfish."
However, he soon drifted into a bit of an anti-230 discussion himself -- which is a bit worrying, considering that he's a judge ruling on cases involving Section 230. It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn't that great, and if he had the option of flipping a switch to turn it off, he's not entirely convinced that he would leave it on. He said he's just not sure it's really done that much good, and that we might be better off without it.
He also made the rather incredible statement, echoing Zeran, asking "where is it written that you have a right to speak anonymously." Of course, many believe that right is embedded within the First Amendment, and many of Kozinski's colleagues on the bench have made that right to anonymous speech pretty explicit in the case law. It's a bit disappointing to see that Kozinski doesn't agree.
Kozinski did point out that many people don't realize what it's like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had "obscene" content, leading to a rash of misleading press coverage, and an investigation (which eventually cleared him of any wrong doing).
So, perhaps it's understandable that he's not a fan of anonymity online, but like Zeran before him, he seems to conflate anonymity online with "bad activity" online, without acknowledging that plenty of important and valuable speech is made available because it's anonymous. Protecting anonymous speech is quite important, and a federal judge should recognize that. It was pretty disappointing to see judge Kozinski appear to lean the other way.
The third in the misguided Section 230 haters was Professor Nancy Kim, who has focused on a very, very small number of websites that have encouraged people to "dish" gossip about others online, and used those as an example of why Section 230 needs wholesale changes. Once again, she seems to think that anonymity automatically means "bad." She even suggested that perhaps sites that allow anonymous comments shouldn't be allowed safe harbors like Section 230's. Beyond just anonymous comment, she seems to dislike "impulsive behavior," suggesting that sites should strive to prevent people from impulsively presenting content, as that, too, is bad.
Like Zeran and Kozinski, Kim seems to be automatically taking a few bad actors, and blaming their bad actions on separate issues (anonymity and impulsive content posting). She also seemed to ignore that there are plenty of non-legal reasons why websites would seek to improve quality of commentary online: because it makes them more credible. She points to some of the "worst" sites like JuicyCampus and AutoAdmit, but doesn't seem to recognize that almost no one took comments on either site seriously, because everyone knew that anyone could write whatever they wanted on those sites, and they were filled with junk that wasn't trustworthy. Instead, she seems to assume that even if the site isn't credible, people automatically believe everything that was written on them. That's just silly. And wrong.
Furthermore, as Cathy Gellis pointed out, Kim (and Zeran) seemed to think that the US government's policy goal should be to promote "culturally beneficial" communication -- but it's not. The government isn't supposed to have a specific role in determining which kind of speech is is okay, and which kind is not. That's the key point behind the First Amendment.
This point was driven home earlier in the day when Paul Alan Levy from Public Citizen was on a panel, and responded to one of many questions asked about "reopening" Section 230 to amend the law. As he pointed out, plenty of people would probably love to "reopen" the First Amendment as well, because they don't like some of the speech enabled by it. However, on the whole, most people who understand and value the First Amendment and the idea of Freedom of Expression recognize that, while it allows speech "we don't like," the end result is that it also enables tons of speech that we do value. The same is true of Section 230. Yes, it allows some "bad" speech to get out there, but there's no way to effectively limit that without causing massive collateral damage as well. Asking to change or hinder Section 230 is no different than asking that we cut back on our free speech rights.
In the end, hopefully these three folks who were skeptical of Section 230 really represent extreme outliers. It certainly appeared that way from the audience, which included a ton of experts in Section 230 who mostly (especially from the Twitter backchannel) were horrified at the suggestions to modify Section 230. However, we should be careful, as there are certainly serious efforts underway to slice up Section 230 and take away this very important tool of free speech. The problem is that most of those attacking Section 230 seem to not understand the basic fact that all it does is make sure liability is accurately placed on those who actually said stuff, rather than a third party. Either that, or as we saw with these three speakers, they seemed to confuse things like anonymity with "bad speech" and assumed that you could somehow use that confusion to carve out "bad speech" without having a serious negative impact on perfectly legitimate speech.
by Mike Masnick
Fri, Dec 17th 2010 5:34pm
from the go-judge-kozinski dept
I join Judge Thomas's opinion because it's clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence, it's clear that the council members aren't entitled to qualified immunity. In the Age of YouTube, there's no need to take my word for it: There is a video of the incident that I'm "happy to allow . . . to speak for itself." Scott v. Harris, 550 U.S. 372, 378 n.5 (2007); see http://www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010).He then goes on to discuss the case. However, this may be the first time that I can recall a judge noting that even without official evidence being entered, you could just go watch the events in question on YouTube. We've had a few (sometimes heated) discussions around here concerning the rules of evidence and whether or not juries or judges should be allowed to seek out additional evidence like this -- and I'm glad to see Kozinski not just do so, but then point out to everyone in his concurrence how braindead obvious it is that those judging the case should see the video.
by Mike Masnick
Wed, Jul 14th 2010 2:59pm
from the what's-up-kozinski? dept
The first, noted by Eric Goldman, involves Kozinski's determination that that the domain eVisa.com represents trademark infringement over Visa's trademark even though eVisa is not in competition with Visa at all, and is focused on language tutoring. Kozinski says that there is infringement, citing trademark dilution. The whole theory of "dilution" in trademark law is problematic enough already, in that it goes way beyond the purpose of trademark law to act as a method of consumer protection against confusion. When you add in "dilution" then suddenly trademark becomes something very different and allows companies to stifle totally unrelated uses of a domain name. As Goldman notes this ruling seems to suggest that Visa (the company) can block out any use of "visa" in a domain name, even if it is accurately used as the dictionary definition of visa (i.e., to travel to another country):
the word "Visa" already has several dictionary definitions. This poses a problem for the blurring analysis. Visa the trademark can't co-opt the existing dictionary meanings. So does dilution-by-blurring mean that Visa the trademark can preempt every non-dictionary commercial use of the word? That seems to be a logical implication of this opinion.And while (as per usual) Kozinski's ruling is entertaining in its opening:
She sells sea shells by the sea shore. That's swell, but how about Shell espresso, Tide motor oil, Apple bicycles and Playboy computers? We consider the application of anti-dilution law to trademarks that are also common English words.it runs into trouble pretty quickly. Historically trademark is only supposed to apply to the areas where you use the mark in commerce. This expansion of dilution changes it into something totally different, and something that seems to run into some serious First Amendment issues.
In the age of FIOS, cable modems, DSL and T1 lines, reasonable, prudent and experienced internet consumers are accustomed to such exploration by trial and error. ... They skip from site to site, ready to hit the back button whenever they're not satisfied with a site's contents. They fully expect to find some sites that aren't what they imagine based on a glance at the domain name or search engine summary.... [Consumers] don't form any firm expectations about the sponsorship of a website until they've seen the landing page --if then. This is sensible agnosticism, not consumer confusion. So long as the site as a whole does not suggest sponsorship or endorsement by the trademark holder, such momentary uncertainty does not preclude a finding of nominative fair use.Of course, the difference here is that he's using the "consumer confusion" view of trademark law, which makes sense, rather than the dilution by blurring standard, which opens up all sorts of problems. But it really does seem difficult to see how a judge could rule against eVisa one week, and then write the paragraph above the very next week. In fact, while we note that the dilution claims raise serious First Amendment issues, those aren't mentioned in that ruling. Yet, here in the Toyota ruling, Kozinski quickly points out how ruling in favor of Toyota would raise First Amendment issues:
It is the wholesale prohibition of nominative use in domain names that would be unfair. It would be unfair to merchants seeking to communicate the nature of the service or product offered at their sites. And it would be unfair to consumers, who would be deprived of an increasingly important means of receiving such information. As noted, this would have serious First Amendment implications. The only winners would be companies like Toyota....It's really too bad that the Alex Kozinski, who wrote this later ruling, couldn't go talk to the Alex Kozinski who wrote the first ruling.
by Mike Masnick
Fri, Oct 23rd 2009 11:33am
from the change-of-heart? dept
It took seven years since that decision, but apparently Mattel had decided to heed Judge Kozinski's suggestion. Reader Sallo alerts us to the news that Mattel has actually licensed the song for a commercial -- though, they "adjusted" some of the lyrics to make it a little more pro-Barbie, rather than mocking-Barbie. Still, that's quite a jump: from suing the band for infringement to actually licensing and using the song in just a few years.