Techdirt. Stories filed under "legality"

Why Site Blocking Orders Need To Be Challenged In Court

Glyn Moody — Mon, 11 Mar 2013 08:56:06 PDT

There is an extremely dangerous trend to remove proper judicial review from cases involving alleged copyright infringement. Sometimes that means "voluntary" actions by ISPs -- the SOPA and ACTA approach. Sometimes, it means appearances before tribunals by members of the public without adequate legal representation, as is happening under New Zealand's "three strikes" law. And sometimes it might involve a judge, but consist of the latter simply agreeing to requests from the copyright industry, without anyone challenging the grounds for doing so.

That was the case for the most recent action by the British Phonographic Industry (BPI), which represents the recording industry in the UK, as reported by Techdirt last week. Now Andres Guadamuz on his TechnoLlama blog has dug a little deeper into the judge's reasoning for granting these orders, and discovered the following remarkable section:

the evidence indicates that blocking orders are reasonably effective. The effect of the order made in Italy with regard to TPB [The Pirate Bay] referred to in 20C Fox v BT at [197] was a 73% reduction in audience accessing TPB in Italy and a 96% reduction in page views. The blocking order made in Italy in relation to KAT has had a similar effect. As for the effect of the orders made in England in relation to TPB, as at 19 December 2011, TPB was ranked by Alexa as number 43 in the UK, while as at 21 November 2012, its UK ranking had dropped to number 293.

As Guadamuz notes: I had to look for the source of such astounding information, but I was not able to obtain any reliable resources, and I suspect that it is a figure given by the BPI, which may have been pulled out of the nether regions of their institutional anatomy. On the contrary, I found a report from Torrent Freak claiming the opposite, but this claim should be taken with a pinch of salt.
The use of Alexa is also rather surprising, since it is very rarely quoted these days: Alexa works by measuring the behaviour of users who have installed a toolbar in their browser. This gives a snapshot of a very narrow demographic, that of Alexa toolbar users. Needless to say, people who are more likely to share files online are less likely to have any sort of toolbar installed on their browsers, particularly one that tracks online behaviour. Similarly, there are studies that prove that Alexa's rankings tend to be wrong for both small and big websites, as they tend to produce some serious mismatches with reality.
And Guadamuz goes on to point out: In the end, the best way to try to ascertain the effect of ISP blocking orders is to ask the people who are engaged in the practice. This is precisely what was done by Dutch researchers Joost Poort and Jorna Leenheer. They conducted a survey of thousands of Dutch residents about their downloading behaviour. While more than 75% of respondents claimed that they never downloaded any illegal content, those who engaged in the practice replied that they were not affected whatsoever by the blocking of TPB in the Netherlands. Only 3.6% claimed that they are downloading less, and only 1.9% admitted that they had stopped downloading entirely. This seems like a huge failure of blocking orders.
But none of this information was presented in court. Instead, the judge used his own -- or maybe the BPI's -- figures to justify his blocking orders. That's why it's regrettable the ISPs involved did not mount any kind of challenge where they could have offered an alternative view on how effective such orders really are, so that the judge could form a more balanced view of the situation. More generally, this episode shows the dangers of moving to systems where the other side of the copyright story is not fully and fairly presented.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Permalink | Comments | Email This Story

Anti-Piracy Group Already Demanding That Kim Dotcom's New Mega Service Be Shut Down

Mike Masnick — Thu, 24 Jan 2013 04:03:08 PST

This probably isn't a huge surprise, but with the launch of Kim Dotcom's new Mega cloud drive system, many in the entertainment industry have assumed that he must be relaunching Megaupload and a way to infringe. However, it seems pretty clear that Mega is quite different and mostly resembles other well known legitimate services, like Google Drive, Dropbox and Amazon's cloud offerings. Still that hasn't stopped some in the "anti-piracy" community from trying to shut down the site already:

Robert King is the lead figure behind StopFileLockers (SFL), an anti-piracy group dedicated to bringing file-hosting services to their knees by strangling their finances. Last year King claimed his group had a hand in disrupting the cash flow to hundreds of sites and actually shutting down dozens more. Now he has a very big scalp on his mind.

King, an Australian and adult industry player, says that StopFileLockers have just begun a “campaign to have the payment processing of all Mega resellers terminated.”

Apparently waiting for actual evidence of infringement, or even specific liability for Mega, is too much to ask. This is silly. While we may have doubts about how Mega is running, shutting it down without even understanding what it's about seems incredibly short-sighted. Plenty of successful legitimate companies have been built out of those who were earlier sued for "infringement." Isn't it worth at least making sure he's breaking the law before insisting he must have done so?

Permalink | Comments | Email This Story

Congressional Reps Question Feds Over Botched Domain Seizures

Mike Masnick — Fri, 31 Aug 2012 14:00:19 PDT

The government's admission that it had (once again) mistakenly seized and censored a website for over a year when it dropped its case against Rojadirecta/Puerto80 has reminded everyone that Dajaz1 was not an isolate case. It was a part of a wider program where DHS (via ICE) and the DOJ systematically believed whatever the RIAA and MPAA were telling them, leading to the blatant censorship of a variety of websites, without proper due process. Thankfully, some in Congress are paying attention. Bipartisan Congressional Reps. Zoe Lofgren, Jason Chaffetz and Jared Polis have teamed up to send a letter raising a number of questions about Operation in Our Sites, to both Attorney General Holder and Homeland Security Secretary Napolitano.

The letter doesn't even mention the Rojadirecta case, but focuses on what happened with Dajaz1, pointing out their concern with the program, and how it appears to violate free speech rights, ignore due process and destroy legitimate businesses. The letter raises the fact that Dajaz1 is not an isolated case. As we've pointed out in the past, we're aware of at least a few other domains that were seized, and whose owners had challenged the seizures. And yet, well over a year later, there appeared to be no evidence of either a return of those domains or a forfeiture process started. Given how the feds treated Dajaz1, with secret extensions, preventing Dajaz1 from representing itself in court, we've wondered how many other domains the DOJ and ICE had incorrectly and illegally seized -- and which they were now keeping in that kind of holding pattern. It's good to see that this letter directly asks about that issue:

Other complaints have been raised by websites seized under "In Our Sites" that bear similarities to the Dajaz1 case. These complaints center around unnecessary delays in advancing and resolving cases, difficulty in obtaining documents from the government that are fundamental to the underlying cases (such as affidavits), and difficulty even maintaining contact with the U.S. Attorneys prosecuting the cases. The effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures.

The letter goes on to ask a series of important questions for both DHS and DOJ, especially regarding the utter failure of both departments in the Dajaz1 situation.

What is the process for determining which sites to target? Who is involved in that process? What specific steps do DOJ and ICE take to ensure that affidavits and other material are thoroughly reviewed for accuracy prior to seizing a domain?
To what extent are government agents required to evaluate whether the potentially infringing material to which target sites link -- or which they host themselves -- are non-infringing fair uses, impliedly licensed, and/or de minimis uses?
Do government agents consider whether a site complies with the DMCA safe harbors? If so, how does this affect the determination to target a site?
How many sites have attempted to retrieve their domains, via any process, judicial or informal, and what is the status of those cases?
Have you made any changes to your domain seizure policies or their implementation as a result of the issues arising from the Dajaz1 seizure or any other seizure? If so, what were those changes?
What specific steps has the DOJ and ICE taken to ensure that domain name seizure cases proceed without unnecessary delays, and that website owners seeking to restore their domain names have swift access to the officials and documents necessary to resolve their cases?
How many more seizures do you anticipate occurring in the next six months and year?
It seems to me that questions four and five are the key ones here, which means I fully expect DOJ and ICE to be especially non-responsive in whatever answers they provide.

Permalink | Comments | Email This Story

ICANN Confirms That It's Going To Make It Easier For Governments To Seize Domains Around The Globe

Mike Masnick — Wed, 21 Mar 2012 08:58:38 PDT

This just gets worse and worse. After pointing out that ICANN was missing a big (and important) opportunity by not speaking out against governments seizing domain names, we were disappointed to see ICANN release a white paper that was more of a how-to manual for governments on seizing domains. Now, Paul Keating points us to the depressing news that ICANN is now publicly saying that it will work more closely with governments around the world to help them seize and censor domains. The writeup is a little vague, but it says that seizing domains for copyright infringement was a "hot topic" at ICANN's recent meeting -- including promises from ICANN that it would work more closely with law enforcement around the globe and the various registrars to help law enforcement be more effective in censoring these websites. This is really unfortunate and once again highlights ICANN's uselessness in protecting the internet. Instead, it appears to be actively working against basic internet principles.

Permalink | Comments | Email This Story

Rather Than Speaking Out Against Domain Seizures, ICANN Provides A 'How To' Manual

Mike Masnick — Mon, 12 Mar 2012 09:36:35 PDT

A couple weeks ago, we noted that with all of these questionable domain seizures going on, it was a shame that ICANN wasn't speaking out against such questionable abuses of the domain system. We thought its silence was a sign of its impotence to actually take a stand. Turns out we may have actually overestimated ICANN's willingness to stand up for the internet. You see, late last week it put out a "Thought Paper on Domain Seizures and Takedowns."

By "thought paper" -- they actually mean an instruction manual.

Seriously. The document is basically a step-by-step guide for government officials on how to seize, takedown and censor websites. It has sections like "guide for preparing domain name orders, seizures & takedowns" and "checklist of information to submit with a legal or regulatory action." This is exactly the opposite of what ICANN should be doing if it believes in preserving the basic structure and principles of the internet. But given ICANN's general incompetence, is it really any surprise that it's ending up on the wrong side of this issue, too?

Permalink | Comments | Email This Story

Why Isn't ICANN Speaking Out Against ICE/DOJ Domain Seizures?

Mike Masnick — Thu, 1 Mar 2012 09:14:00 PST

Following the feds seizing bodog.com, Mark Jeftovic from EasyDNS wrote a really interesting post pointing out just how insane these domain seizures are. He focused on the fact that Bodog was run outside of the US, hosted outside the US, and the domain registrar was even outside the US. Thus, the feds went straight to Verisign to seize the domain. For what it's worth, while I share his concern about the insanity of this, I don't actually think this is new. As we discussed back in 2010, the government appeared to go direct to Verisign for earlier seizures. As we said at the time:

It appears that Homeland Security contracted out the seizures to a private company, immixGroup IT Solutions, which set up the "seizedservers.com" domain that the seized domains now point to. The other bit of useful info is that the seizures appear to have been done directly by VeriSign at the top level domain level. VeriSign, of course, controls the .com TLD, and so Homeland Security appears to have just asked VeriSign to move the domains (with a court order, of course), and it did so.

However, we agree with Jeftovic that this is crazy, and if it finally gets some more attention now, that would be a good thing. Another point that he raises is that the Bodog seizures seem to be based on a violation of Maryland state law, which raises additional questions about jurisdictional issues. You may recall a few years ago, that the state of Kentucky tried to seize a bunch of gambling related domains, and the world freaked out about a massive overreach by that state against websites that had no presence in the state. Shouldn't there be similar concerns when it comes to a Maryland state law... and the federal government?

But there's a bigger point in all of this, which Jeftovic raises at the end, which deserves a lot more attention: where the hell is ICANN on this and why isn't it speaking out against these domain seizures?

Where the fsck is ICANN in all of this?

They are nowhere. They are collecting their fees, pushing their agenda of as many possible new-top-level domains and despite the fact that SOPA, ACTA, PIPA et aim directly at the interests of their core stakeholders, for whom they are supposed to be advocates and stewards. ICANN is conspicuous in their absence from the debate, save for a smug and trite abdication of involvement (i.e. "ICANN Doesn't Take Down Websites") – translation: "This isn't our problem".

And therein lies the issue. ICANN needs to make this their problem, because it very much is. If ICANN isn't going to stand up, and vigorously campaign for global stakeholder representation in these matters, than they are not only abdicating any responsibility in the ongoing and escalating crackdown on internet freedom, they are also abdicating their right to govern and oversee it.

They need to be visible, they need to be loud and they need to come down on the right side of these issues or they need to be replaced.

It's a good point that highlights what a joke ICANN has been on this front. It should have come out right when ICE started seizing domains. The longer it's silent, the worse it makes things.

Permalink | Comments | Email This Story

Retroactive Immunity From The Gov't For Warrantless Wiretapping Deemed Constitutional

Mike Masnick — Fri, 30 Dec 2011 07:46:01 PST

As you hopefully recall, a few years back, the press revealed that the Bush Administration had begun a rather sweeping wiretapping campaign, working with major telcos to get access to all sorts of phone and internet communications... without a warrant. That revelation resulted in a bunch of lawsuits against both the telcos and the government. In response, Congress quickly passed the FISA Amendments Act (FAA), which included a provision granting retroactive immunity to the telcos who helped the government by passing along private info despite the lack of any warrant. Then Senator Obama originally opposed this provision, but changed his mind at the last minute... and has been an enthusiastic supporter of retroactive immunity since becoming President.

A series of 9th circuit appeals court rulings on various cases related to these issues all came out on Thursday. The big one, Hepting v. AT&T, was on the question of the Constitutionality of the retroactive immunity clause. While the specifics of the ruling focus on some tricky specific legal claims (and you have to wade through 26 pages listing all the parties to the case...), the basic summary: granting retroactive immunity is perfectly Constitutional, in large part because of the big scary bogeyman of "national security." For example, in the discussion of whether or not Congress had an "intelligible principle" in delegating authority concerning retroactive immunity under the Act to the Attorney General, the Court basically "national security" is good enough:

When considering how to respond to lawsuits like this one, the Committee "recogniz[ed] the importance of the private sector in assisting law enforcement and intelligence officials in critical criminal justice and national security activities." ... The Report further states that "electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation's telecommunication system." ... The intelligible principle that comes through in the legislative history is one of protecting intelligence gathering and national security information.

The fact that § 802 arises within the realm of national security--a concern traditionally designated to the Executive as part of his Commander-in-Chief power--further suggests that the intelligible principle standard need not be overly rigid.

This strikes me as somewhat bizarre reasoning. Even if we recognize that the government has to rely on the private sector in intelligence gathering, that should never create immunity for illegal activities. The concerns that telcos would be afraid to help the government without immunity seems ridiculous. If the actions were legal then it would already have effective immunity, in that suits would be quickly dismissed. It's only if the actions are illegal that they would need immunity.

There are a number of other specific points in the ruling, but the other one that strikes me as ridiculous is the court's response to Hepting's claim that another problem with the Act is that it puts a biased party in charge of determining who gets immunity, and that's a due process violation. To put it simply, if it's the government's own Attorney General deciding to grant telcos immunity to coverup the government's own illegal wiretapping... then that's a due process violation in that the plaintiff has no way to get a fair hearing from a neutral or unbiased judge. Amazingly, the court rejects this in two ways. First, by saying that the Attorney General "certifying" the actions of telcos to qualify them for immunity does not count as "adjudicating," but is merely "factfinding." But if that "factfinding" blocks any chance of the case being heard, isn't that effectively the same as "adjudicating."

The second reason for rejecting this argument is that we just have to assume the Attorney General is unbiased, according to the court:

Hepting views Attorney General Mukasey as operating under "a structural, institutional bias" because he served during the Bush Administration, which advocated for the legislation, and was counsel to the United States in these lawsuits. He follows with the claim that Mukasey "had an actual bias in this matter," because he stated publicly that the immunity provision was "important" and that immunity represented "a fair and just result," and also conveyed this opinion to members of Congress.

Hepting ignores that the Attorney General has a legitimate policy role. It is well established that "[a]dministrators . . . may hold policy views on questions of law prior to participating in a proceeding." .... Public officials are presumed not to be biased; expressing an opinion, even a strong one, on legislation, does not disqualify an official from later responding to a congressional mandate incorporating that opinion.

Yeah, but that's not the issue. No one's saying that public officials can't make use of legislation they supported in general. But in this specific situation, the law allows the AG to very easily cover up illegal activities performed by companies to help his own investigations. That's the bias concern. No one cares that he supported the law. They're concerned that his bias is in covering up illegal actions that helped his own efforts.

The courts also rejected Hepting's argument that retroactive immunity precludes any legal action against the wiretapping, by noting that retroactive immunity only applies to the telcos -- but the government itself can still be liable. And that's where the second important ruling on this issue comes in. The ruling in Jewel v. NSA is at least slightly more encouraging, in that it sends a separate, but related case against the government for warrantless wiretapping back to the district court, rejecting many of its arguments that led it to dump that case earlier.

In that case, the district court dismissed the case, claiming that Jewel lacked the standing to sue the government. However, the appeals court disagrees and says that Jewel does have standing. It finds that Jewel showed "concrete and particularized injury." Of course, the district court may still turn around and dump the case, agreeing with the government's other key assertion that the "state secrets privilege" kills off the case. Of course, if that's what happens it kind of undermines the claim in the Hepting ruling that telco immunity is fine because you can still sue the government. Furthermore, even if the government loses here, it's not clear that it matters. As in the similar Al-Haramain case, if the government is found to have illegally wiretapped someone, so what? In Al-Haramin, the government just had to fork over about $40,000. That's hardly going to make the government stop...

There was a third ruling related to all of this as well, in McMurray v. Verizon, which more or less was the same thing as the Hepting case, but also added one separate argument: that the FISA Amendments Act represented a violation of the Takings Clause. The court keeps this one short, and says that while the idea is a "novel approach," it really just doesn't apply here, in large part because McMurray "failed to seek just compensation from the Court of Federal Claims," as required for a Takings Clause claim to be valid.

In the end, the Jewel ruling is nice, but may not get much further, and the acceptance of the Constitutionality of retroactive immunity is pretty horrifying. Obviously, this seems not just ripe for abuse, but pretty clearly a sign that there was past abuse that the government is happy to keep covering up.

Permalink | Comments | Email This Story

Judge Says OtherOS Removal Was A Bad Business Decision But Not Illegal

Zachary Knight — Fri, 16 Dec 2011 03:48:01 PST

Last year, Sony removed the ability for all PS3 owners to install other operating systems onto its PS3 console. This came as a result of console modders attempting to use it as an avenue to jailbreak the console. As a result of the move, Sony received a lot of outrage from upset gamers. Part of this outrage was a class action suit brought on behalf of PS3 owners who felt they were cheated when they were forced to lose the OtherOS feature or lose the ability to access Sony's Playstation Network and the ability to play future games that require a connection and the latest firmware. Many gamers reacted as if this was little more than the gamer's version of 'Sophie's Choice'.

We now learn, via IGN, the presiding judge has dismissed the case against Sony. Back in February of this year, Judge Seeborg had dismissed all but one claim leaving the option for an amended complaint to be filed.

While it cannot be concluded as a matter of law at this juncture that Sony could, without legal consequence, force its customers to choose either to forego installing the software update or to lose access to the other OS feature, the present allegations of the complaint largely fail to state a claim. Accordingly, with the exception of one count, the motion to dismiss will be granted, with leave to amend.

The judge wasn't convinced by the latest amended complaint and has completely dismissed the case stating that the PS3 owners failed to convince him that they were entitled to the OtherOS feature or access to PSN outside the PS3's warranty period. That is an interesting point. Had the PS3's been within the warranty period, would this case have gone the other way? That is certainly something to consider. After all, the OtherOS feature was part of the whole PS3. However, even outside the warranty period, are we really to just accept it when a manufacturer deliberately disables a function?

Perhaps responding to just such concerns, Seeborg stated:

The dismay and frustration at least some PS3 owners likely experienced when Sony made the decision to limit access to the PSN service to those who were willing to disable the Other OS feature on their machines was no doubt genuine and understandable. As a matter of providing customer satisfaction and building loyalty, it may have been questionable.

A questionable move indeed. Sony may have dodged a legal bullet here, but the bullet of continued frustration that Sony customers have with this addition to many many questionable business decisions has hit it between the eyes. How much longer will Sony customers put up with this kind of abuse? What features will it cut next? While we don't know the answer to that, we do know one thing. Sony removed this functionality in order to prevent PS3 owners from jailbreaking it. However, if the EFF has its way this year, this dismissal will be moot.

Permalink | Comments | Email This Story

Feds Insist That As Long As They Break The Law In A 'Classified' Way, They Can Never Be Sued

Mike Masnick — Thu, 1 Sep 2011 13:11:33 PDT

The EFF has been involved in a series of lawsuits against the government and telcos concerning the almost certainly illegal warrantless wiretapping program that the US has been using for many years, which was exposed by the NY Times and Wired a few years back. The US government more or less admitted what it was doing was entirely illegal when it passed new legislation that (a) tried to make the warrantless wiretapping legal and (b) granted telcos retroactive immunity from any lawsuits for helping the government. Because of these things -- along with the US's insistence that these lawsuits would reveal state secrets -- all of the lawsuits have been dismissed. However, the 9th Circuit appeals court is now considering restating them after an appeal via the EFF.

What's pretty stunning about the federal government's position is that it seems so farcical on its face. It seems to be claiming that (1) as long as the government breaks the law in a classified way, that can never be subject to litigation and (2) if lawsuits concerning illegal activity would be a burden on those who participated in the illegal activity, then such lawsuits should not be allowed. I'm not kidding. A couple of quotes:

“Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,” Kellogg said.

Department of Justice Attorney Thomas Bondy urged the panel of judges to abide by Congress’ wishes. He repeated over and again that litigating the allegations would expose national security secrets.

“Who was or who was not surveilled, that’s classified,” he said. “What any particular carrier did or did not do, that’s all classified.”

But combine those two things and you're basically saying the government has full impunity to do whatever the hell it wants and can never face any legal consequences. On top of that, those who help the government can never face legal consequences either. How does that possibly make sense? It appears that at least two of the judges on the three judge panel had significant concerns about this:

Judge Michael Daly Hawkins wondered aloud, “If these plaintiff’s don’t have standing, who would?” Judge M. Margaret McKeown said the “concern” she had was that the suits’ dismissal “cuts off the plaintiffs … from ever pursuing a claim.”

But, those random musings aren't necessarily indicative of how the court will rule. I am hopeful they realize the plainly ridiculous state of the government simply being able to hide any illegal activity behind a claim that "it's classified," and will allow at least some of these cases to go forward.

Permalink | Comments | Email This Story

Feds Raid Gibson; Musicians Now Worried The Gov't Will Take Their Guitars Away

Mike Masnick — Mon, 29 Aug 2011 02:45:18 PDT

Last week, the feds apparently raided the premises of Gibson Guitar, searching for "illegal wood" used in those guitars. Apparently, the government and Gibson have been involved in an ongoing lawsuit for some time, after the feds seized some guitars in 2009 and a case commenced against the wood in the guitar (yes, against the wood, since it was one of those "in rem" cases): "United States of America v. Ebony Wood in Various Forms." Apparently, now the government is taking it up a notch, and while there is a grandfather clause, if you get your paperwork just marginally wrong and happen to own a Gibson guitar with illegal wood, the government could seize it and fine you. Apparently, a bunch of musicians are reasonably afraid, and some suggest not taking any such guitar out of the country if you ever plan on bringing it back:

John Thomas, a law professor at Quinnipiac University and a blues and ragtime guitarist, says "there's a lot of anxiety, and it's well justified." Once upon a time, he would have taken one of his vintage guitars on his travels. Now, "I don't go out of the country with a wooden guitar."

[....]

It's not enough to know that the body of your old guitar is made of spruce and maple: What's the bridge made of? If it's ebony, do you have the paperwork to show when and where that wood was harvested and when and where it was made into a bridge? Is the nut holding the strings at the guitar's headstock bone, or could it be ivory? "Even if you have no knowledge—despite Herculean efforts to obtain it—that some piece of your guitar, no matter how small, was obtained illegally, you lose your guitar forever," Prof. Thomas has written. "Oh, and you'll be fined $250 for that false (or missing) information in your Lacey Act Import Declaration."

And since this is a "strict liability" situation, asking the government for help in making sure you're being legal may actually make things worse. Much worse:

Consider the recent experience of Pascal Vieillard, whose Atlanta-area company, A-440 Pianos, imported several antique B�sendorfers. Mr. Vieillard asked officials at the Convention on International Trade in Endangered Species how to fill out the correct paperwork—which simply encouraged them to alert U.S. Customs to give his shipment added scrutiny.

There was never any question that the instruments were old enough to have grandfathered ivory keys. But Mr. Vieillard didn't have his paperwork straight when two-dozen federal agents came calling.

Facing criminal charges that might have put him in prison for years, Mr. Vieillard pleaded guilty to a misdemeanor count of violating the Lacey Act, and was handed a $17,500 fine and three years probation.

I'm all for not destroying the environment -- and if Gibson is really doing something bad, then that should be dealt with. But some of these other situations just seem flat out ridiculous. Don't the feds have more important things to do?

Permalink | Comments | Email This Story

EFF Drops Bitcoin Over Concerns About Legality

Mike Masnick — Tue, 21 Jun 2011 12:38:07 PDT

I have to admit to being both skeptical and fascinated about Bitcoin. I think it's a very interesting experiment worth following, but I'm just not sure it can really succeed (though, I think it may create some lessons that others can build on). However, it has been growing, getting attention and popping up as an acceptable currency in some surprising places, and not surprisingly, there's been some significant backlash, with some folks pointing out its problems, and even some (mostly clueless) politicians threatening Bitcoin.

Making things interesting is the news that the EFF will no longer accept Bitcoin. It had started accepting Bitcoin donations a little while ago, but has since rethought the concept for a few reasons. The key point is that they're not entirely sure of the legality of Bitcoin and its uses, and want to avoid getting mixed up in a lawsuit over that as a subject, rather than as an advocate:

We don't fully understand the complex legal issues involved with creating a new currency system. Bitcoin raises untested legal concerns related to securities law, the Stamp Payments Act, tax evasion, consumer protection and money laundering, among others. And that’s just in the U.S. While EFF is often the defender of people ensnared in legal issues arising from new technologies, we try very hard to keep EFF from becoming the actual subject of those fights or issues. Since there is no caselaw on this topic, and the legal implications are still very unclear, we worry that our acceptance of Bitcoins may move us into the possible subject role.

Some, such as Jim Harper, find this reasoning to be weak, saying that this is a bogus excuse, since lots of technologies that the EFF uses are legally ambiguous at the start:

Bitcoin is legally novel. But every new technology is legally novel. EFF didn’t shy away from publishing commentary online while publisher liability was legally ambiguous.

Accepting a Bitcoin donation is like accepting a donation in kind, in contract rights, or in cat food. If it’s worth taking, you go figure out how to accept the donation and square it with existing law. If it’s clearly illegal, you don’t accept the contribution. (EFF would have said so if they felt it was.) If it’s in the middle, a defender of rights to use technology should be inclined toward accepting Bitcoin and clarifying the law, not away from accepting Bitcoin in deference to legal ambiguity and free-ranging government power.

I recognize both arguments, and I think that the EFF is basically saying it's interested in these issues, and certainly willing to get involved in a potential legal dispute down the road -- but it would prefer to do it as an advocate, rather than as the subject of a lawsuit -- and it still doesn't fully understand the legal implications (and, likely, technical situation) of Bitcoin itself, so it doesn't have a firm position on the issue that makes it worth fighting for. I respect that, though, I do wonder why the EFF didn't consider this originally and simply not use Bitcoin in the first place.

Permalink | Comments | Email This Story

Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling

Mike Masnick — Tue, 24 May 2011 10:16:30 PDT

We've been covering the various illegal domain seizures by the US government quite a bit, and with the latest round, I did want to loop back on one point: how come none of the seized sites have sued the government yet? We've heard a few times that the lack of lawsuits from those who have had their domains seized is "evidence" that they know the seizures were legal and that they would lose any court case. I began to wonder about this myself, and spent the last two weeks contacting people on all sides of these cases and found the answer to be exactly the opposite: it's not the site holders who are scared. It's the Justice Department, and they seem terrified to have one of these cases actually go to court.

What was really incredible was how everyone I spoke to involved in these cases (even though not at all connected with one another) had an identical story: they'd all love to take their cases to court, but they're waiting for the government to actually get in touch with them. If it was just one site, there would be no story. But I spoke to people associated with many sites, and the story was nearly identical. To hear John Morton and other proponents of domain seizures talk about it, it's "easy" for the owners of seized sites to protest and file suit against the government over the seized sites. Tragically, the reality has turned out to be quite different. Many of the sites were not even officially notified about the seizure until months later. Prior to that, they weren't even told what the sites were accused of, let alone who was doing the accusations. You try responding to a government action against you completely blind. You don't know who you're suing or for what.

Even once notified, the "notification" often came in the form of an "offer" from the government to effectively give up any and all legal claims against the government. From there, the process sounds like something out of the movie Brazil. Any attempt to speak to the government has been met with either a total lack of response or directing people to someone else, who then won't respond. Some of the people navigating this situation said it took months just to figure out who in the government they should be discussing the issue with -- and once it was figured out, actually getting those individuals to respond to basic questions that are normally answered as a matter of course in discussions prior to any litigation, has been an exercise in futility.

Basically, the same story was heard over and over again: the Justice Department doesn't seem to want these lawsuits to proceed and is stalling as much as possible and trying to avoid the legality of the seizures from being tested. At the same time, the site holders are eager to take these issues to court and are tremendously frustrated and distressed over the idea that the US government can simply seize domains without hearing, notice or effective process of appeal. However, nearly all of them expect that it will eventually end up in court (though one suggested that we might all be dead before a case moves forward at this rate).

Of course, I reached out to the government as well. I spoke to the press office of the part of the Justice Department involved in these cases, and beyond pointing me to the press releases they put out, they had no comment. I asked if there was an official process to protest domain seizures and was promised they'd get back to me. It's been a week and no one has gotten back to me. Separately, I reached out to people in other parts of the government that are heavily involved in the seizures, and despite multiple people promising to respond with details of the process, or to pass on my question to others who might know the process, days have gone by with no further response.

So, apparently it's "easy" to protest these seizures, but the people most involved in these seizures don't want to even let us (or those who it matters most to!) know what the process is. After talking to so many people on this, it's become abundantly clear that the lack of lawsuits has nothing to do with the strength of the government's case, but the very opposite. Multiple site owners would like to file suit, but can't. The government, who insists that it's easy to protest their wholesale seizure of a domain without prior notice or hearing can't even provide me a straight answer to what the process is to protest such a seizure. It's almost as if the government never even expected anyone to want to protest such censorship and were totally caught off-guard by this.

But the real tragedy is for the folks who ran these sites. Even as many have found alternative homes, they're frightened and disillusioned by the US government. They don't feel they did anything wrong, and yet were blindly punished by the US government, declared as criminals with no clear recourse -- and when they sought out information or details, have been met with the bureaucratic equivalent of a brick wall. We can all disagree over whether or not these domain seizures are legal or productive, but I would hope we can all agree that those who have had their domains seized should at least have a clear path to protest their innocence if they believe that they did not commit the crime Homeland Security, the Justice Department and a magistrate judge already declared them guilty of committing.

Permalink | Comments | Email This Story

IFPI Convinces ISP To Just Hand Over Hard Drives Of Torrent Site

Mike Masnick — Tue, 3 May 2011 01:00:47 PDT

This is not the first time something like this has happened, but the IFPI somehow convinced Swedish hosting company Itstaden/ServerConnect to simply hand over the hard drives of one of its hosting customers, LimeTorrents. The IFPI apparently has been pressuring ServerConnect for moths, claiming that it could be liable for any infringement on LimeTorrents, but rather than filing a lawsuit, it simply said that ServerConnect should hand over the harddrives and it did. I'm curious how this is legal. It may depend on the specific contract ServerConnect has with its customers, but it seems that handing their hard drives over to a private party without any sort of court order almost certainly breaks the user agreement, if not local privacy laws.

Permalink | Comments | Email This Story

Feds Plan To Temporarily Turn Poker Sites Back On So People Can Get Their Money Out

Mike Masnick — Fri, 22 Apr 2011 05:52:36 PDT

When the feds seized three poker domains, one of the big concerns was if players would be able to get back their money. When the initial questions were raised, the Justice Department made some statements about how they didn't want people to be able to claim money that was obtained through illegal means -- suggesting that players would not be able to get their money back. However, it appears that someone let those in power know that there are a lot of people who play online poker... and they vote. So, suddenly, the government has agreed to reactivate two of the seized domains to help players retrieve their money. They're spinning the story to suggest people have "always" been able to reclaim their money, but many players say that was not the case at all, and they were completely frozen out of their accounts.

Permalink | Comments | Email This Story

Grooveshark Insists It's Legal; Points Out That Using DMCA Safe Harbors Is Not Illegal

Mike Masnick — Wed, 20 Apr 2011 03:31:22 PDT

If you talk to folks in the recording industry, they seem to insist that Grooveshark is absolutely illegal. However, the company has structured itself in a way that it believes is perfectly legal -- which is why it's now upset that Google and Apple have each pulled its mobile app from their marketplaces and has issued an open letter, explaining why it's legal and asking Google and Apple to let it back into their app stores.

First, the company makes the distinction between "licensed" and "legal":

First, there is a distinction between legal and licensed. Laws come from Congress. Licenses come from businesses. Grooveshark is completely legal because we comply with the laws passed by Congress, but we are not licensed by every label (yet). We are a technology company, and we operate within the boundaries of the Digital Millennium Copyright Act of 1998 (DMCA). Some would have you believe that those of us who use the DMCA to innovate are inherently infringers and that claiming Safe Harbor under the DMCA is as good as admitting guilt. Not so.

The DMCA's Safe Harbor component encourages technology companies to innovate in hopes that they will eventually solve some of the problems that are plaguing content producers today. The Safe Harbor provision reads like it was written specifically for YouTube and Grooveshark, and its necessity continues to be illustrated every day. If it weren't for this notion, many of the products and services that are now taking a bite out of piracy would never have been born.

While I agree with the importance of the DMCA's safe harbors, and the idea that they are important to encourage innovation, Grooveshark is being a little misleading in the whole licensed/legal arena. It really should go into more detail. The way Grooveshark operates, is that (like YouTube), users upload content, which others can then stream. Grooveshark works to abide by the DMCA to discourage and takedown infringing material -- and notes that it has taken down 1.76 million tracks and suspended 22,274 users who abused the system. As it notes, those are "not the characteristics of a company 'dedicated to copyright infringement.'" It also pays performance rights organizations for the streaming content.

The real issue is whether or not the users have the rights to upload the works. That's where the licensing aspect comes in. Grooveshark has been trying for a while now to get record labels to agree to effectively offer a blanket license to its users, so that they can upload those songs, and the labels can then make some money off of the usage as well. In some ways, it's like YouTube's ContentID system, in helping labels monetize their music that users are hoping to share. Both EMI and Universal Music have sued Grooveshark, with EMI dismissing the case after agreeing to a license. Universal Music is still fighting the lawsuit.

So, effectively, the way Grooveshark is structured today is that its users might infringe on copyrights, and the company keeps seeking licenses that would make those uses authorized. The somewhat open legal question is whether or not Grooveshark itself is liable as well. It claims that it follows the DMCA safe harbors and is protected (and, for that reason, I'm sure is very, very, very interested in the eventual outcome of the YouTube/Viacom lawsuit concerning the overall contours of the DMCA safe harbors). The labels, I'm sure, claim that Grooveshark is "inducing" infringement through its overall design.

Not surprisingly, I think Grooveshark presents an interesting legal situation, which should be legal under the DMCA. Unfortunately, the courts often get a little wacky when it comes to interpreting the law in these situations. If YouTube continues to prevail over Viacom, Grooveshark is in a much stronger legal position. If the appeals court reverses, however, it may have more trouble. Of course, given all this, it is somewhat amusing that Google would dump Grooveshark, suggesting a violation of its terms of service. If Google is arguing that YouTube is legal, you would think it would recognize that Grooveshark relies on the very same line of legal logic.

Permalink | Comments | Email This Story

Poker Player Obama Seizes Online Poker Sites?

Mike Masnick — Mon, 18 Apr 2011 13:54:12 PDT

One of the big stories on Friday was the Federal Government's questionable decision to seize the domain names of some of the biggest poker sites in the world. The indictments against the operators of those sites focus on some of the "money laundering" tactics -- but the early details seem to suggest the only reason some of those sites were doing questionable things to get money was because of the bizarre federal government dislike of poker -- which is mostly driven by big casino lobbying money. Some have been pointing out that President Obama has a history of being a poker player, and even held regular poker games when he was a state Senator in Illinois. Apparently, that kind of gambling is okay. But... this other kind of gambling? Well, the government will come down on you hard for that.

Permalink | Comments | Email This Story

If Remote DVRs Are Legal... What About Remote DVD Players?

Mike Masnick — Fri, 18 Mar 2011 04:11:48 PDT

Technology often demonstrates just how ridiculous our copyright laws are. We were just discussing the legality of remote DVRs, which have been found to be legal in the US and Singapore, but infringing in South Korea and Japan (Update: as pointed out in the comments, there are still some liability questions in the US, concerning whether or not a remote DVR provider could have secondary liability -- but I can't see how there would be secondary liability without direct infringement, and since time shifting for personal use is not infringement...). Of course, if a remote DVR is legal... then what about a remote DVD player. It seems like that should be legal as well. As TorrentFreak points out, that's exactly what the streaming movie service Zediva is testing. The company lets you stream movies online -- including movies that the studios haven't licensed for streaming. How? Because it's literally renting the DVD you want, putting it in a networked DVD player, and letting you (and only you) stream the results.

Of course, I imagine the studios will go ballistic (and legalistic) quickly on this one, but it's difficult to argue with the basic premise. After all, if both time-shifting and place-shifting are legal, then what wrong is being done here? Why should it require a separate streaming license? No matter how you think about it, the situation demonstrates that today's copyright laws are confused. After all, if it's perfectly legal for you to set up a DVD player in your own house, and then watch that remotely (e.g., via a Slingbox), why should it not be legal to have a company host the DVD player, and you just watch from home? There's no good reason why the two should be treated differently.

But, at the same time, Enigmax at TorrentFreak properly points out that from a technological perspective, this whole thing is stupid. It's purposely downgrading what the technology allows:

So while the system to get round the usual studio imposed release window nonsense is quite clever, it is also ridiculously old fashioned. It's 2011 and we’re relying on physical DVDs and DVD players? Getting messages that someone else has rented the movie needed already?

These problems were largely solved a decade ago and any torrent, streaming, or decent file-hosting site today can provide a better service than this in the blink of an eye.

Except Hollywood won't let them, legally at least.

In other words, if we can agree that the location of the DVD player is meaningless if you're watching the movie at home, can't we also agree that the physical medium on which the content is stored is meaningless? Is it really that different if you're sitting in your house watching a remote DVD of the movie... or content streaming from a remote hard drive? It seems to matter, deeply, to those in Hollywood, but from a technology standpoint, it seems completely nonsensical.

Permalink | Comments | Email This Story

Feds Appealing Ruling That Said Warrantless Wiretapping Was Illegal; Will This Backfire?

Mike Masnick — Wed, 23 Feb 2011 04:23:57 PST

A year ago, a lot of folks were quite surprised when a court ruled that the federal government had violated wiretapping laws with its warrantless wiretapping campaign. The government had fought hard against the lawsuit at every turn, and went to ridiculous lengths to stall and even ignore the judge. The whole case revolved around the one situation in which the government revealed that it was wiretapping some people without the required warrant. Previous lawsuits over the program had been dropped, because without specific evidence from someone being spied on, no one actually had standing to sue. Yes, this is a bit Kafkaesque when you think about it. Basically, so long as the government keeps its illegal spying activity secret from those it's spying on, no one can take legal action to stop it.

However, in this one case, the government accidentally sent the proof to some lawyers, but then tried to pretend that the document was still "secret" and claimed "national security" reasons for why the proof could not be shown in court. The whole thing was yet another silly game of coverup. So it was big news last March when the government lost the case.

However, soon after that ruling, people started pointing out that the government might not appeal the case, because it could just "accept" the ruling, pay whatever fines, and then just go on doing what it was doing, since no one else could sue and there was nothing else to stop them. This thinking was given even more weight when the judge finally announced the awards to those who were spied on, and it amounted to pocket change.

So consider us surprised that the federal government has indicated it plans to appeal the ruling. It's entirely possible that it's only appealing on very specific and narrow grounds, but it does seem like an odd decision, and it makes me wonder if the government might not regret it if it ends up losing the appeal, and getting a more serious punishment.

Permalink | Comments | Email This Story

Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal

Karl — Wed, 16 Feb 2011 11:15:00 PST

Earlier this month, in discussing some of the Homeland Security/ICE domain seizures, Karl put together an excellent comment, going through the legal analysis as to why the domain seizures were almost certainly not legal. Karl is not a lawyer, so I sent the comment to a series of lawyers I know who are very much on top of First Amendment issues, and they came back saying that his post was accurate, so I asked him to turn it into a full post, and here it is. With COICA being brought back, the timing is particularly appropriate.

These seizures are the very definition of prior restraint.

The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2)) The state has not met their burden of showing that criminal activity occurred at all.

Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.

Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.

Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.

These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.

Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:

While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.

Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.

Some rebut with Heller v. New York, but nothing in Heller contradicts Fort Wayne:

A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. [Emphasis in original.]

In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.

Moreover, Heller quotes United States v. Thirty-seven Photographs, which lays out three requirements for ex parte seizures:

(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. [Emphasis mine.]

These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and some have only recently been contacted by the government, months after the domains were seized.

Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."

Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.

In case you're wondering -- no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 46) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)

It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (just the .com, .net, etc parts) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive -- such as when it includes the full creative URL -- it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glenn Beck raping and murdering a young girl in 1990.)

But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.

And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.

Now, about those seizure laws. 17 U.S.C. 506(b) references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 503: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.

According to 18 U.S.C. 2323(a)(2), the actual procedures for criminal seizure are in 18 U.S.C. 46. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in 18 U.S.C. 985. 985(d) states:ates:

Real property may be seized prior to the entry of an order of forfeiture if--
(A) the Government notifies the court that it intends to seize the property before trial; and
(B) the court--
(i) issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard.
(2) For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the Government shall show that less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property. [Emphasis mine.]

In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face -- especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale," and the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.

...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.

The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.

Permalink | Comments | Email This Story

USPTO Refuses To Respond To Senators' Questions On Legality Of ACTA

Mike Masnick — Wed, 17 Nov 2010 15:27:25 PST

The effort the administration is going through to avoid discussing ACTA is really quite stunning. Two US Senators, Bernie Sanders and Sherrod Brown, asked USPTO Director David Kappos to respond to specific questions about the legality of certain issues in ACTA. Kappos has now "responded" by not actually responding. He sent a letter back that did not actually address any of the issues raised, but merely said "our USPTO issue experts will continue to work with USTR as they finalize the results achieved in Tokyo." That's not a response. That's a dodge. You can read the entire letter after the jump.

Permalink | Comments | Email This Story

Backpage Tells Attorneys General That They Won't Give In To Censorship Demand

Mike Masnick — Thu, 23 Sep 2010 08:25:04 PDT

On Tuesday, we wrote about how a group of grandstanding state attorneys general had moved on from blaming Craigslist for the actions of its users, now that they had successfully censored that site, and began demanding similar censorship for Backpage.com, the online classifieds from Village Voice Media. As a few people have sent in, Backpage does not seem interested in backing down, posting a public response and pointing out that they are operating perfectly in accordance with the law, that even the AGs admit that Backpage cooperates with law enforcement, and that the AGs would be better served going after those actually involved in the activities, rather than blaming third parties:

While no system is perfect, even the AGs acknowledge Backpage.com's good-faith cooperation with law enforcement.

In the last two years, Backpage.com users have posted 58 million ads and only 6 million in the adult services section. Federal and state authorities have called on Backpage.com to testify in just five cases involving alleged abuse of underage persons. Backpage.com continues to respond to valid subpoenas from law enforcement officials whose job it is to investigate, apprehend and prosecute criminals who wrongfully post illegal ads and victimize others.

Backpage.com is disappointed that the AGs have determined to shift blame from criminal predators to a legal business operator in an apparent attempt to capitalize on political opportunity during the election season.

They also note: "Censorship will not create public safety nor will it rid the world of exploitation."

Of course, rather than recognizing any of this and maybe backing down, Connecticut Attorney General (and Senate candidate) Richard Blumenthal responded in typically misleading fashion:

"I am deeply disappointed by this unfortunate and unfounded resistance to taking common-sense steps toward protecting women and children. I am hopeful that the company will reconsider its resistance and do the right thing. I will consult with my fellow attorneys general and consider possible next steps."

Notice that he does not respond to any of the actual points raised. He does not respond to the fact that shutting down these services won't do anything to help protect women and children and will almost certainly make the problem worse. He just pretends that the world is the exact opposite of what it is. It's as if Richard Blumenthal thinks that everyone out there is incredibly dumb and believes the world works as he says it does, rather than how it actually works.

Permalink | Comments | Email This Story

The Legality Of News Aggregators

Mike Masnick — Wed, 15 Sep 2010 00:46:03 PDT

There's been this a lot of talk about "aggregators" recently -- often in the context of traditional newspapers claiming that such aggregators are somehow damaging their business. As we've discussed in the past, if you look at the details, there's little evidence that aggregators are really the issue. Instead, many of the complaints appear to be confusing a correlation of their own business declines with the rise of aggregators, and falsely believing there's a causal relationship when there's little, if any, evidence to support that.

However, that's not going to stop ongoing legal actions from those publishers against the aggregators they believe are a problem. One reason for this is that the specific legal situation at times can be a bit vague, as internet aggregators are quite different than past businesses. If you're interested in this subject, you should absolutely read Kimberly Isbell's very thorough look at the legal issues related to online aggregators. She very carefully breaks out the different types of aggregators (though, I'm a bit surprised that people seriously consider commentary blogs to be "aggregators") as well as the specific legal issues facing each of the different aggregators. The problem, which becomes clear, is that the law is not anywhere close to settled on the key issues, and leave an awful lot of key questions up to the interpretation of whatever judge gets the cases in question. We've discussed in the past the idea that it's often possible to take the "fair use" factors and interpret them in either direction (something is or is not fair use), and the same may be true with "hot news" in some cases as well. That's a problem, and makes both concepts somewhat useless and dangerous as well. If you have a law where the boundaries are incredibly vague, unclear, and up to the whims of a randomly selected judge, it leads to potentially damaging situations, where people avoid liability by not even trying to do certain things for fear of getting sued.

The concept of hot news is now being tested in a few different courts, so we can be hopeful that within a few years, perhaps, the courts will dump the concept entirely as a violation of the First Amendment (an analysis that hasn't been done yet), but with that question still up in the air, there's still a chance that a confused court could rule otherwise, creating a massively damaging situation for value added content services online.

Permalink | Comments | Email This Story

Judge Dismisses Lawsuit Over Warrantless Wiretapping, Appeal Planned

Mike Masnick — Fri, 22 Jan 2010 12:27:58 PST

This comes as no surprise, but is still somewhat disturbing. A lawsuit the EFF was involved in over the federal government's warrantless wiretapping program has been dismissed by the court because it "was not a 'particularized injury' but instead a 'generalized grievance.'" This same issue has been raised before. If the government illegally spies on people, how can you prove it? You can't go to court unless you prove that you were harmed by the action, but as long as the government keeps it secret then you can't know. That's why the one case where the gov't accidentally revealed some info is so important. But, still, in this other case, the EFF plans to appeal noting the ridiculousness of the situation:

"The alarming upshot of the court's decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional," said EFF Senior Staff Attorney Kevin Bankston

Permalink | Comments | Email This Story

Is It Illegal To Commit Seppukoo On Your Facebook Account?

Mike Masnick — Wed, 30 Dec 2009 05:08:16 PST

Facebook is known for not looking kindly (and for going legal) on sites that attempt to do pass through logins to do something with a Facebook account. I can understand why they don't like these other services, but it's difficult to see what's illegal about them. The next potential legal battle apparently may be between Facebook and Seppukoo, a fun site that offers users an amusing way to close and delete their Facebook account by having it commit a virtual suicide:

The site, Seppukoo.com, offers ritual suicide for Facebook users' virtual profiles by deactivating your account. And it doesn't stop there. If you're willing to end it all, the site will feature a RIP memorial page on its site and sends the page to all your Facebook friends.

Fun stuff. Except, of course, Facebook doesn't want people deleting their accounts, and so it blocked Seppukoo. Now, the battle of words is heating up and lawyers are getting involved. Facebook has issued a cease and desist, insinuating that it will take Seppukoo to court for violating Facebook's "rights and responsibilities" if it doesn't stop offering the service. I'm still quite confused as to what legal leg Facebook has to stand on here. I can understand why it doesn't like what Seppukoo is doing... but that doesn't mean it's illegal.

Permalink | Comments | Email This Story

FCC Hires Law Professor Who Believes Broadcast Indecency Laws Are Unconstitutional

Mike Masnick — Wed, 16 Dec 2009 19:39:00 PST

There are many people out there who are greatly troubled by the way the FCC "enforces" efforts against broadcast indecency -- with some even questioning whether or not it's even constitutional for the FCC to act as a public arbiter of indecency. It looks like the FCC has just hired one such person, in the form of Duke telco law professor Stuart Benjamin. Since I consider myself among those who question how indecency fines can fit with a First Amendment, this seems like a good thing -- but the reporting on it, at the link above, only focuses on the complaints about this hire. But the complaint comes from the Parents Television Council, whose main claim to fame is flooding the FCC with bogus complaints about "indecent" programming from people who didn't even see whatever it is they're complaining about. So you can understand why they might complain. If they lose the ability to create moral panics, it's harder to keep going.

Permalink | Comments | Email This Story