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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 17 April 2014 @ 2:29pm

Eli Lilly Enlists Congress In Fight Against Canada For Refusing Patent On Useless Drug

from the war-on-all-fronts dept

Eli Lilly bet its entire business model on patents years back, rather than on creating useful products that people want to buy. Lately it's been having trouble getting new patents, and is reacting extremely poorly to the fact that its last-gasp efforts to get new patents aren't working. As we've noted, a few years back, Canada rejected some patent applications for some Eli Lilly drug after the Canadian patent board "determined that the drug had failed to deliver the benefits the firm promised when obtaining the patent." In other words, after realizing that the drug is not useful, Canada rejected the patent.

And Eli Lilly flipped out.

Eli Lilly has sued Canada for $500 million claiming "lost profits." How is this possible, you ask? Well, it's those corporate sovereignty provisions that are finding their way into various trade agreements lately. They're usually called "investor state dispute settlement" (ISDS) provisions, because supporters know that such a phrase will bore most people to death and they won't realize what's happening. Eli Lilly is arguing that Canada's decision to check to see if a drug is actually useful somehow violates its international agreements. And thus that a sovereign decision by Canada not to patent drugs of questionable benefit is not just a violation of trade, but stomping on Eli Lilly's expected profits.

Lilly is now raising the stakes. Not only has it asked the USTR to put Canada back on the wacky "Special 301 list" of "naughty countries" that don't bow before American corporate demands, but it's convinced 32 members of Congress to out themselves as corporate shills for Eli Lilly by demanding that the USTR follow through on this request.

Eli Lilly seems to have no shame about this, happily admitting that it's behind this effort to have the US punish Canada for daring to judge whether or not a drug is useful. As he told the Wall Street Journal:

“We’ve been unsuccessful in bringing about change by other means,” said Lilly chief executive John Lechleiter. “It’s an issue right at our back door. And unfortunately, we’re afraid it can lead to other countries attempting to undermine intellectual property.”
No, not "undermine intellectual property." It's about actually making sure, before giving you a decades-long monopoly right, that your drug is actually useful. Of course, if the USTR actually follows through and puts Canada on the Special 301 list, it will just cement what a complete joke the Special 301 list really is. For years, the USTR -- at the behest of Hollywood -- put Canada on the Special 301 list. Each year Canadian officials would specifically state that they "don't recognize" the process of the Special 301 list as being legitimate (because it's not) and then proceed to do nothing. Eventually, though, with a new government in place, Canada did change its copyright laws, and was "downgraded" on the Special 301 list. Upgrading them back up to a "pirate" nation will just highlight why Canada (and every other country) should totally ignore the nearly entirely arbitrariness of the list.

Meanwhile, shame on those 32 members of Congress for supporting such a blatant attempt by a company to interfere in the sovereignty of Canada and its crazy idea that drugs should actually be useful to deserve patent protection.

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Posted on Techdirt - 17 April 2014 @ 12:22pm

Court Rightly Finds That GoDaddy Isn't Liable For Revenge Porn Site

from the for-now... dept

In the ongoing attempts to deal with the (very real and serious) issue of "revenge porn" websites, various parties have been trying desperately to blame third parties, rather than figuring out ways to go after those actually responsible. In one such case, victims of the site had gone after the host and registrar of the revenge porn site Texxxan.com, which happened to be GoDaddy. A Texas trial court totally ignored Section 230 in finding GoDaddy liable. Thankfully, an appeals court has now reversed that, highlighting the importance of Section 230, and the lengths to which many will go to in an attempt to get around it, in order to blame third parties for the actions of others. Basically, the plaintiffs here tried to find a way around Section 230 by arguing that it "didn’t apply to intentional torts, obscene material that isn’t constitutionally protected, and civil lawsuits based on criminal statutes." However, the court rejected all of that:

All of plaintiffs’ claims against GoDaddy stem from GoDaddy’s publication of the contested content, its failure to remove the content, or its alleged violation of the Texas Penal Code for the same conduct. Allowing plaintiffs’ to assert any cause of action against GoDaddy for publishing content created by a third party, or for refusing to remove content created by a third party would be squarely inconsistent with section 230.
As Andrew McDiarmid at CDT points out, this is important:
Last week’s opinion reads like a greatest-hits record of Section 230 case law, and makes it clear that because GoDaddy had nothing to do with the creation of the content at issue it cannot be held liable. This is the right answer; hosts like GoDaddy must be protected from liability for their users’ (and their users’ users’) speech so that the Internet remains a vibrant platform for free expression and access to information. Otherwise, who would be willing to take the risk of opening up their servers for public hosting?

The plaintiffs attempted to argue that Section 230 doesn’t apply when the content at issue is illegal – an argument the judges rightly rejected. Shielding hosts from liability when their users upload illegal content is precisely the point of Section 230: those who post such content – not those who host it – should be legally responsible for it. Thankfully, the court recognized as much, writing that such a reading of the statute “would undermine its purpose.”
Of course, this is not the final word on this. The attorney for the plaintiffs has said that they will appeal to the Texas Supreme Court. And of course (once again) we have the issue that the person who has been credited with helping to draft the upcoming federal revenge porn law has flat out said that it's her intention to make companies like GoDaddy liable.
"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."
Indeed, this would target the GoDaddy's of the world as well. I recognize that there are serious issues involved in revenge porn, but targeting third parties like web hosts and search engines is idiotic. It will have tremendous unintended First Amendment consequences.

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Posted on Techdirt - 17 April 2014 @ 11:23am

Recently Departed Founder Of Russia's Facebook Says Gov't Demanded Data On Ukrainian Protestors

from the surveillance-made-simple dept

While we're still puzzled by Ed Snowden's question to Vladimir Putin concerning Russian surveillance, it's pretty well accepted that the Russians have significant surveillance powers, and they're not afraid to use them. Now the outspoken ousted founder of "Russia's Facebook," VKontakte, Pavel Durov, has said that Russian intelligence service FSB had demanded info on Ukrainian protestors -- and that VKontakte had refused to provide it. As Mashable explains:

"On December 13, 2013 the FSB demanded from us to turn over the personal data of organizers of the Euromaidan protesters," Pavel Durov wrote in a post (English translation) on his VKontakte page on Wednesday.

"Our response has been and remains a categorical refusal — Russian jurisdiction does not extend to Ukrainian users VKontakte," he wrote. "Giving personal details Ukrainians Russian authorities would not only be against the law, but also a betrayal of all those millions of people in Ukraine who have trusted us."

This actually provides some more background details on what happened with VKontakte and Durov in the past few months. In January, Durov "sold" his stake in the site to the CEO of a Russian mobile operator. Many people noted at the time that this was unlikely to have been a wholly voluntary transaction. Having known some folks working for startups/tech companies in Russia, stories of being "forced" to sell are not exactly uncommon.

Durov himself had been outspoken for a while about the importance of secure communications, and had criticized both the NSA and the FSB for mass surveillance. He's also been working for a while on a secure messaging app (separate from VKontakte).

Then, just a few weeks ago, despite promises that when he sold his shares, nothing would change about his management role, he abruptly resigned. It was noted at the time that he had been under pressure to shut down pages related to Alexei Navalny, an opposition candidate to the current government, whose web presence was broadly censored by the Russian government last month. However, it was also hinted at that Durov had been asked to give up info on Ukrainian protestors. His latest comments appear to confirm those rumors.

Also, given that he's no longer there, and this appears to be part of the reason, it seems reasonable to believe that the FSB now does likely have access to such information via VKontakte. For whatever Putin thought he was proving with his answer to Snowden's question, it's pretty clear that Russian surveillance reaches far and wide. And, of course, the NSA's activities allow him to play it off as less intrusive than the NSA (even if that's not true). Either way, all of this seems to highlight why we all need much more secure communications systems.

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Posted on Techdirt - 17 April 2014 @ 3:38am

Do Nature's Publishers Even Read Their Own Articles About Open Access?

from the funny-that dept

Just a few weeks ago we wrote about scientific publishing giant Nature's somewhat abhorrent open access policy, where it's telling researchers at universities that require open access publishing that they need to get a waiver from that policy. So it seems rather strange to see that very same Nature, just days later, publishing an article about open access, in which it talks about how two of the largest funders of scientific research today, Wellcome Trust in the UK and the National Institute for Health (NIH) in the US, are starting to punish grant recipients who don't follow through on open access obligations. Both of those organizations require certain open access standards, but apparently have mostly just trusted researchers to follow through. Not any more:

Now they are done with just dangling carrots. Both institutions are bringing out the sticks: cautiously and discreetly cracking down on researchers who do not make their papers publicly available.

Neither agency would name those who have been sanctioned. But the London-based Wellcome Trust says that it has withheld grant payments on 63 occasions in the past year because papers resulting from the funding were not open access. And the NIH, in Bethesda, Maryland, says that it has delayed some continuing grant awards since July 2013 because of non-compliance with open-access policies, although the agency does not know the exact numbers.
The report notes that this has resulted in a "noticeable jump in researchers following the rules." That makes sense.

Of course, nowhere in the Nature article does reporter Richard Van Noorden ever bother to mention that his own publication is fighting against those requirements. In fact, the article reads as if it's a strong supporter of open access rules:
Some scientists are not even aware that they could be penalized. Nature's news team contacted Sheila MacNeil, a tissue engineer at the University of Sheffield, UK, who has published hundreds of articles, including a March 2013 paper on making stem-cell lattices for corneal repair that was funded by the Wellcome Trust (I. Ortega et al. Acta Biomater. 9, 5511–5520; 2013). Nature pointed out that the article should be open access but is not. "This is new to me," responds MacNeil, who plans to make the paper available. "Agreeing with open access is easy — making it happen, less so," she says.
Perhaps the Nature "news team" should take a look at how their own publisher is forcing researchers to ignore their open access obligations.

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Posted on Techdirt - 16 April 2014 @ 8:04pm

Tom Lehrer, Culture And Copyright After Death

from the different-attitudes dept

If you don't know who Tom Lehrer is, well, you've missed out for a long, long time. Still, it's never too late to catch up, and there are plenty of great sources, including the The Tom Lehrer Wisdom Channel on YouTube (though, hardly a "rare cut" this remains my favorite). Of course there's much more to the lore of Lehrer than just his music, and Ben Smith at Buzzfeed has an has an excellent long discussion of Lehrer's life, including his very brief, but massive, music career, and his life for the past half a century in which he more or less tries to hide from or live down that whole episode of his life. It's a great read.

But what caught my attention was some discussion that Lehrer has had with certain fans concerning the copyright on his works, whether or not it's okay to put them online and what happens to them after his death. The simple answer seems to be that Lehrer couldn't care any less about all of it.

While Lehrer has made startlingly little effort to ensure a future for his work, a handful of superfans have filled in the gap. One is Erik Meyn, a Norwegian who manages the Tom Lehrer Wisdom Channel on YouTube, a feed of performance videos and playlists that has received more than 10 million views since 2007. Meyn originally posted content to the channel without Lehrer’s permission and called him from overseas in December 2008 to apologize, a conversation he later posted on the “Tom Lehrer!” Facebook page. An excerpt:

TL: Well, you see, I’m fine with that channel.

EM: You’re very kind. But my question is: Who in your family will take care of your copyright and your songs in the distant future?

TL: I don’t have a family.

EM: OK, but what do you think will happen to the channel and your songs? And if you have someone who will act on your behalf, could you give them my name in case they’d want the channel taken down?

TL: Yes, but there’s no need to remove that channel.

EM: I was just wondering what will happen in the future, because you’re certainly going to continue to sell records.

TL: Well, I don’t need to make money after I’m dead. These things will be taken care of.

EM: I feel like I gave away some of your songs to public domain without even asking you, and that wasn’t very nice of me.

TL: But I’m fine with that, you know.

EM: Will you establish any kind of foundation or charity or something like that?

TL: No, I won’t. They’re mostly rip-offs.

There's also the discussion with a fan who has been in contact here and there with Lehrer for the past 20 years or so, who stopped by his house once, found Lehrer's master tapes, and Lehrer just gave them to him:
In 2011, Morris was rummaging through the Sparks Street basement, and alongside the collection of books and records Lehrer referred to as his “Noel Coward shrine” were two boxes marked “masters.” They were, to Morris, “the holy grail.” These were the original recordings of the 1959 album More Songs by Tom Lehrer: the orchestral session and outtakes and Lehrer’s recordings. Morris offered to help Lehrer remix them from half-inch tapes into stereo recordings.

“Well, why don’t you just take them with you?” Lehrer said.

“I was like, ‘Are you kidding?! These are the master copies!’” Morris recalled. “I was just trying to reassure him, I’ll be very careful with them, I won’t let them fall in the wrong hands, I’m not going to distribute copies to anyone without your permission.”

“I don’t care!” Lehrer told him. “They’re not worth anything to me.”
None of this is to suggest that any other artists should necessarily follow down the same path. But I always find it interesting to see artists who decide that the traditional concepts of copyright don't make any sense to them, and just choose not to have anything to do with them. Given that Lehrer is so influential on so many people in so many different fields today, it seemed worth sharing this little tidbit.

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Posted on Techdirt - 16 April 2014 @ 3:42pm

Canadian 'Digital Privacy' Bill Actually Puts Everyone's Privacy At Risk; Will Be A Boon To Trolls

from the no-anonymity dept

Michael Geist is raising the alarm on a dangerous new bill in Canada, called the "Digital Privacy Act" (Bill S-4), which will actually serve to undermine many people's privacy. Much of the bill is focused on security breach disclosure rules, something that is important and useful. But, with that are some hidden, and extremely problematic, sections as well.

In light of revelations that telecom companies and Internet companies already disclose subscriber information tens of thousands of times every year without a court order, the immunity provision is enormously problematic. Yet it pales in comparison to the Digital Privacy Act, which would expand the possibility of warrantless disclosure to anyone, not just law enforcement. Bill S-4 proposes that:

"an organization may disclose personal information without the knowledge or consent of the individual... if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).
Of particular concern is how this could be a huge boon for copyright trolls, who can get information from ISPs without a court order, by simply claiming that it's for the purpose of "investigating a breach of an agreement or a contravention of the laws of Canada." Similarly, this would put a serious chill on protections for anonymous speech, as claims of defamation or other issues might lead to quick revelations of anonymous commenters, without any role for a Canadian court to balance the interests of free speech and privacy.

It's difficult to see how a bill that is supposed to be about protecting people's privacy actually has this clause that will effectively decimate privacy for many individuals. Industry Canada insists that this provision is narrowly targeted, but Geist highlights how the government rejected much narrower constructions, and seems unable to comprehend how disastrous the current bill will be for Canadians' privacy.

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Posted on Techdirt - 16 April 2014 @ 2:41pm

Travesty: Supreme Court (And Senate) Deny SCOTUSblog A Press Pass

from the shameful dept

So we just had a story about a court recognizing that, yes, blogs are a part of the media, and noted how ridiculous it was that this is still an issue in 2014. However, it appears that the Supreme Court is still living in a different century (okay, maybe not a huge surprise, since they still haven't figured out email). If you follow issues around litigation, it's likely that sooner or later you'll read SCOTUSblog, which is (deservedly) the go to source for anything related to anything having to do with Supreme Court cases. On mornings when decisions come out, it's always the first source I check, and I'm hardly alone among legal watchers.

And yet... the Supreme Court has denied SCOTUSblog's request for a press pass based on a stupidly convoluted system for which the Senate is partly to blame as well. According to SCOTUSblog:

SCOTUSblog is not now, and has never been, credentialed by the Supreme Court. The Court’s longstanding policy was to look to credentials issued by the Senate. We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery. Last year, we finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog. We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy. The Court has not indicated when that review will conclude.
This is complicated further by the fact that the Senate Press Gallery has now rejected SCOTUSblog's request for a press pass, and also told the blog it will not renew Lyle's press pass -- thereby cutting off the blog to both the Senate and the Court. SCOTUSblog's Tom Goldstein does note that the Supreme Court itself has actually tried to accommodate the blog's requests for public seats, despite not agreeing to give it a press pass. The situation is clearly ridiculous:
All that said, the Senate Press Gallery’s decision to deny us a credential is important to us. We wanted the credential in substantial part because we cover Supreme Court-related matters in the Senate. Most significantly, we do gavel-to-gavel, liveblog coverage of Supreme Court nominations. We also expect to cover hearings related to the Court’s budget. So those efforts are now more difficult.

So we plan to appeal the Senate Gallery’s credentialing decision. We do not have a written list of the reasons for the denial, which makes the process more difficult. Our impression is also that the appeal may go to the same group that denied the application in the first place. If the appeal is denied, then we expect to litigate the issue. We’re now coordinating all those efforts with other groups that kindly have offered to support us.

All in all, the refusal by the Court and the Senate to credential us have always seemed strange. No one seems to doubt that we are a journalistic entity and that we serve a public function. Winning the Peabody and other awards would seem to confirm that. And the Court for years has functionally recognized us, because obviously the overwhelming majority of Lyle’s work is for us. We do not want any kind of special treatment. Credentialing the blog doesn’t give us any special power or recognition; it just makes our jobs incrementally easier. All in all, it doesn’t seem to make sense to impose burdens on us that are greater than those that apply to others who fundamentally do the same thing.
I don't think "strange" is the right word. Shameful works better. Stupid would apply as well.

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Posted on Techdirt - 16 April 2014 @ 12:38pm

Court Declares That, Yes, Bloggers Are Media

from the and-the-moral-of-the-story-is-don't-shoot-dogs dept

A few years ago, we wrote about the bizarre and quixotic effort by Florida businessman Christopher Comins to find any possible way to sue University of Florida student and blogger Matthew Frederick VanVoorhis for his blog post concerning a widely publicized event in which Comins shot two dogs in a field (video link). The story made lots of news at the time, but Comins didn't go after any of the major media -- instead targeting VanVoorhis for a defamation suit. The original blog post is "novelistic" but it's difficult to see how it's defamatory. Either way, Comins' case was shot down on fairly specific procedural grounds: namely that Florida defamation law requires specific notice be given to media properties at least 5 days before a lawsuit is launched. Specifically, the law says:

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
Comins' lawsuit was dumped because he failed to give such notice. Comins argues that he did give such a notice (though the letter he sent did not meet the requirements of such notice under the law) and (more importantly for this discussion) that VanVoorhis' blog did not count as a media publication, and thus the law did not apply. The original court ruling rejected that pretty quickly, and now on appeal, a state appeals court has not just rejected Comins' anti-blog claim more thoroughly, but also highlighted the importance of blogs to our media landscape.

The full ruling does a nice job giving the history and purpose of the law above, as well as the importance of encouraging the media to report on difficult stories. And from there, it explains why VanVoorhis' blog is clearly a part of the media and why blogs in general are so important:
...it is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.
While it seems crazy that this kind of issue is still being debated in 2014, it's good to see a court make such a clear statement on the fact that blogs will often qualify as media properties.

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Posted on Techdirt - 16 April 2014 @ 11:36am

Did You Retweet The USAir Pornographic Tweet? You May Have Violated New Jersey's Revenge Porn Law

from the oops dept

We've pointed out for a while how the various attempts at creating revenge porn bills will have serious unintended consequences and raise serious First Amendment issues. This is not to minimize the problems of revenge porn (or to absolve the sick and depraved individuals who put together, submit to or regularly visit such sites). However, it's to point out that pretty much any way you try to legislate such actions as criminal likely will create other problems. For example, I'm sure many of you heard the story recently about US Airways... um... unfortunate pornographic tweet. It was the story of the internet a few days ago, in which a United Air social media employee did a very unfortunate cut and paste error, tweeting out a very graphic image that involved a naked woman and a plane where it... doesn't quite belong (for slightly lighter fare, I highly recommend reading some of the of the funny replies to that tweet). For what it's worth, US Air has said that it was an honest mistake and it's not even firing the person responsible.

What does any of this have to do with revenge porn? Well, not a whole lot, other than to note, as lawyer Scott Greenfield did, if you retweeted the picture, there's a good chance you violated criminal revenge porn laws. And that's true -- though it's really specific to one law, right now, which is New Jersey's. California has a revenge porn law too, but it's much more limited and likely wouldn't apply here. New Jersey's law on the other hand includes this:

An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
Even if the original photograph was done "consensually" note that you need consent for that specific disclosure. In other words, if you retweeted that image, you probably violated New Jersey criminal laws.

And, yes, it seems likely that the expected introduction of a federal anti-revenge porn bill will include a similar provision. It's already been stated that law professor Mary Anne Franks is helping draft the legislation, and her draft legislation relies heavily on New Jersey's. Here's one version of her draft legislation:
An actor commits a crime if he knowingly discloses a photograph, film, videotape, recording, or other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact, when the actor knows or should have known that the person depicted did not consent to such disclosure and under circumstances in which the person has a reasonable expectation of privacy. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.
Franks' bill does include some exceptions, and she might argue that this might qualify under the exception for "disclosures that serve a bona fide and lawful public purpose," though that leaves the person retweeting the image in the unenviable position of defending that retweeting a major US airline accidentally tweeting a photo of a woman with a model plane stuck up her vagina is somehow "a bona fide and lawful public purpose." Of course, that's part of why we have the First Amendment, because we don't want people to have to defend why the particular speech they're making has a "bona fide and lawful public purpose." Instead, we recognize that making people have to defend the intent of their speech likely has chilling effects.

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Posted on Techdirt - 16 April 2014 @ 10:30am

Court Says That Tweeting Someone Is 'F**king Crazy' Is Not Libelous

from the a-fucking-good-ruling dept

There have been a number of libel cases popping up over the past few years where random insults on Twitter are turned into full blown court cases. Tragically, these cases have picked up the "twibel" name -- a neologism that seems silly and pointless. Still, it's good to see that courts appear to (mostly) be recognizing that random insults shouldn't be considered libelous. Venkat Balasubramani has the details of a recent ruling (where both parties represented themselves!), in which a court recognized that saying on Twitter that someone is "fucking crazy" isn't libelous, especially as part of a "heated" online discussion. I won't get into the details of the case, other than that it involves a horse named Munition, but here's the Court's discussion:

The tweet cannot be read in isolation, but in the context of the entire discussion. In this case, the tweet was made as part of a heated Internet debate about plaintiff’s responsibility for the disappearance of her horse. Furthermore, it cannot be read literally without regard to the way in which a reasonable person would interpret it.

The phrase “Mara Feld . . . is fucking crazy,” when viewed in that context, cannot reasonably be understood to state actual facts about plaintiff’s mental state. It was obviously intended as criticism—that is, as opinion—not as a statement of fact. The complaint therefore cannot base a claim of defamation on that statement
Of course, as Eric Goldman amusingly notes at the end of Venkat's post, "bringing a defamation lawsuit over tweets is almost always fucking crazy," reminding us that it will almost certainly reinforce the association between the phrase and the person who brought the lawsuit, Mara Feld.

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Posted on Techdirt - 16 April 2014 @ 9:25am

Microsoft And Sony Double Down On Patent Trolling; Dump More Cash Into Intellectual Ventures

from the because-innovation-is-for-suckers dept

Last fall, we noted that the world's largest patent troll, Intellectual Ventures, was running out of cash, which is somewhat incredible, given that it had previously claimed to have raised $6 billion in investments (though many of its earliest deals with tech companies were categorized as "investments" when they were really promises not to sue, combined with access to the patent bank) and a further $3 billion in licenses. It should take a long time to spend $9 billion when your company produces nothing that has ever been brought to market, but that's IV for you. As we noted in that story last fall, many of the tech companies that initially "invested" in Intellectual Ventures had no interest at all in re-upping, as they felt that the whole thing had been a bait-and-switch. They were initially told it was a "patent defense fund," not a giant patent troll itself.

However, while many of the companies have indeed avoided giving IV any more money, it appears that Microsoft and Sony were quite happy to dump a lot more cash into IV, which has now ramped up its patent buying efforts again (as well as its lobbying and political contributions in an effort to kill off patent reform). Microsoft, of course, has always been close to IV, seeing as it was started by the company's former CTO, Nathan Myhrvold, who is also a close friend of Bill Gates (who has directly helped IV get some patents). Similarly, Microsoft has become one of the most aggressive patent abusers over the last decade, increasingly relying on its stock of patents to make money from other people's innovations, rather than innovating on its own.

It is similarly no wonder that the company somewhat famous for having nearly all of its major success based on copying the work of others, is now trying to stop anyone else from doing the same without paying a massive tax. There was a time when Bill Gates said:

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."
And, now, via Intellectual Ventures and its own patent holdings, Microsoft seems to be trying to make sure Gates' prediction is a reality. It all fits in to the same paradigm we've observed for years. When you're young, you innovate. When you're old, you litigate. Microsoft appears to have given up on innovation, but is ramping up on litigation, and re-investing in patent trolling via Intellectual Ventures is merely the latest step.

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Posted on Techdirt - 16 April 2014 @ 8:10am

Recording Industry Wants To Have It Both Ways When It Comes To Pre-1972 Recordings

from the are-they-the-same-or-different? dept

Yet another story of hypocrisy by the recording industry? Why yes, indeed. For years now, we've been covering the issue of pre-1972 sound recordings. When Congress wrote the 1909 Copyright Act, it did not cover sound recordings, because Congress didn't think that sound recordings qualified for copyright. In a statement released by Congress with the Act, it said it deliberately chose not to cover sound recordings, believing that they weren't covered by the Constitutional limitation on "writings" for copyright protection:

Indeed, the report released with the Copyright Act expressly stated that Congress did not intend to protect sound recordings: "It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices." According to one commentator, Congress had two principal concerns about sound recordings, leading it to decline to protect them. First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect "writings," and Congress was uncertain as to whether a sound recording could constitute a writing. Second, Congress worried that allowing producers to exclusively control both the musical notation and the sound recording could lead to the creation of a music monopoly.
That latter concern certainly was prescient. When Congress did a massive overhaul of copyright law in 1976, the recording industry was a much more powerful lobby, and so sound recordings were included. However, in the years between 1909 and 1976, many states had created their own (often bizarre) "state" copyrights to protect recordings. Rather than deal with this in an intelligent way, Congress basically said the new federal copyright rules would only apply to songs recorded in 1972 or after, and pre-1972 recordings would remain in a bizarre limbo. This has created a whole host of legal issues, and the Copyright Office has been trying to figure out what to do about this for years.

However, it appears that the recording industry would like it both ways. When it's to their advantage, they claim that pre-1972 recordings should be treated just like modern song recordings. And when it's not to their advantage, they insist that pre-1972 recordings should be treated wholly differently. In various hearings about the issue, the RIAA has been one of the most vocal in arguing against treating pre-1972 recordings as if they're covered by federal copyright law. And, at the same time, they've argued in court repeatedly that the DMCA safe harbors don't apply to pre-1972 recordings, making various music storage lockers liable for any such recordings they host. Some courts have rejected this theory, while others have accepted it. Either way, the recording industry has been pretty adamant that pre-1972 recordings should be treated differently, so they can sue whomever they want.

And yet... when various streaming music companies recognize this fact, and note that pre-1972 recordings aren't covered under statutory licensing regimes... the recording industry freaks out. Michael Huppe, the President of SoundExchange -- an organization created by the RIAA -- is writing in Billboard magazine about how unfair it is that streaming services like Sirius XM and Pandora don't pay statutory rates for pre-1972 recordings. Huppe complains that "this is not fair" and notes:
It's a matter of simple fairness to offer equal treatment for all sound recordings.
Okay. If that's true, then why aren't SoundExchange and the RIAA out there in support of federalizing the copyright in pre-1972 recordings? Why aren't SoundExchange and the RIAA agreeing to the fact that the DMCA's safe harbors apply equally to pre-1972 recordings? I'm all for "equal treatment for all sound recordings" as well, but someone ought to point out to SoundExchange and the RIAA: you first.

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Posted on Techdirt - 16 April 2014 @ 6:53am

Lavabit Loses Its Appeal For Mucking Up Basic Procedural Issues Early On

from the unfortunate-but-messy dept

This won't come as a huge surprise, but Ladar Levison and Lavabit have now lost their appeal on whether or not they were in contempt for failing to compromise the security of every one of Lavabit's customers in complying with the DOJ's demands to get access to who Ed Snowden had been emailing. The ruling does a decent job explaining the history of the case, which also details some of the (many, many) procedural mistakes that Lavabit made along the way, which made it a lot less likely it would succeed here. Let this be a massive reminder that, if you're dealing with this kind of stuff, getting a good lawyer on your side immediately is important. Unfortunately, the procedural oddities effectively preclude the court even bothering with the much bigger and important question of whether or not a basic pen register demand requires a company to give up its private keys. As the court details, the problem seems to be how Lavabit went about the legal process here:

In the district court, Lavabit failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way. Yet on appeal, Lavabit suggests that the district court’s demand for the encryption keys required more assistance from it than the Pen/Trap Statute requires. Lavabit never mentioned or alluded to the Pen/Trap Statute below, much less the district court’s authority to act under that statute. In fact, with the possible exception of an undue burden argument directed at the seizure warrant, Lavabit never challenged the district court’s authority to act under either the Pen/Trap Statute or the SCA.
The court basically says that because Lavabit mucked up the process, the appeal is going to fail. It further rejects the claim that Lavabit did, in fact, challenge the Pen/Trap order when Levison objected to turning over his keys. The court notes that such a claim is a stretch.
In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic.” (J.A. 42.) This statement -- which we recite here verbatim -- constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.
Levison represented himself pro se at the beginning of the case (adding to the mess of procedural problems), and while his legal team tries to use that as a reason why the court should forgive some of the procedural mistakes, the court rejects that as well (even noting that, as a limited liability company, Lavabit shouldn't have been allowed to proceed pro se in the first place).

The hail mary attempt in the case was to argue that because the underlying issues are of "immense public concern" (and they are) that the court should ignore the procedural mistakes. The court flatly rejects that notion:
Finally, Lavabit proposes that we hear its challenge to the Pen/Trap Order because Lavabit views the case as a matter of “immense public concern.” (Reply Br. 6.) Yet there exists a perhaps greater “public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” United States v. Atkinson, 297 U.S. 157, 159 (1936). And exhuming forfeited arguments when they involve matters of “public concern” would present practical difficulties. For one thing, identifying cases of a “public concern” and “non-public concern” –- divorced from any other consideration –- is a tricky task governed by no objective standards..... For another thing, if an issue is of public concern, that concern is likely more reason to avoid deciding it from a less-than-fully litigated record....

Accordingly, we decline to hear Lavabit’s new arguments merely because Lavabit believes them to be important.
This is unfortunate on many levels, because it's not just Lavabit that believes these issues to be of immense public concern. Either way, this mess of a case should be a reminder that, especially when dealing with the government, it's important to get good lawyers on your side from the very beginning.

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Posted on Techdirt - 15 April 2014 @ 8:05pm

Google May Consider Giving A Boost To Encrypted Sites

from the a-good-move,-but-would-it-work? dept

Interesting report over at the WSJ noting that some at Google are considering if they should boost the search results for sites that are encrypted as an attempt to encourage more widespread use of encryption. I would be a bit surprised if the company did this, as Google always claims that it's focus is entirely on the quality of the content of sites, and delivering people to what they're looking for. While the search algorithms do take into account things like page load time, it seems like encryption status might not be seen as a real indicator of quality. Still, I hope that Google does seriously consider such a move, because it could (very quickly) drive many more sites to encrypt -- and, it would probably (finally) drive more services that refuse to make encryption work to figure it out. For example, almost no media sites will do full encryption because it would effectively break most ad networks. So, for most media properties, going full encryption automatically means taking a huge hit in ad revenue. The various ad networks could do things to fix this, but very few of them seem interested (actually, very few of them seem to even understand the issue). If Google were to make this change, then the pressure coming from media properties (many of whom live and die based on their Google rankings) to ad networks to figure this out, would hopefully be enough to create a real shift.

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Posted on Techdirt - 15 April 2014 @ 2:48pm

Google Apparently Chose Not To Tell The NSA About Heartbleed

from the trust-issues dept

Well, this is interesting. I naturally assumed that when the various researchers first discovered Heartbleed, they told the government about it. While I know that some people think this is crazy, it is fairly standard practice, especially for a bug as big and as problematic as Heartbleed. However, the National Journal has an article suggesting that Google deliberately chose not to tell the government about Heartbleed. No official reason is given, but assuming this is true, it wouldn't be difficult to understand why. Google employees (especially on the security side) still seem absolutely furious about the NSA hacking into Google's data centers, and various other privacy violations. When a National Journal reporter contacted Google about the issue, note the response:

Asked whether Google discussed Heartbleed with the government, a company spokeswoman said only that the "security of our users' information is a top priority" and that Google users do not need to change their passwords.
Here's the thing: if the NSA hadn't become so focused on hacking everyone, it wouldn't be in this position. The NSA's dual offense and defense role has poisoned the waters, such that no company can or should trust the government to do the responsible thing and help secure vulnerable systems any more. And for that, the government only has itself to blame.

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Posted on Techdirt - 15 April 2014 @ 1:43pm

USPTO Keeps Granting Patents At Record Rates: 6,000 Utility Patents Granted In A Single Week

from the throwing-sand-in-the-gears-of-innovation dept

With the latest attempt at patent reform stalling out a bit, it's worth looking at how the last attempt to reform patents to stop abuse, 2011's America Invents Act, has helped solve the problem of bogus patents. Oh, actually, it hasn't. As Patently-O notes, patenting has continued to shoot up at an insane pace, setting new records along the way. Does anyone actually believe that the US has really become that much more inventive in just the past few years, or can we reasonably assume that the USPTO is passing a ton of crappy patents, ensuring that patent trolling activities over bad patents continue for decades to come? The latest dubious "record" is the USPTO granting over 6,000 utility patents in a single week.

Because nothing says "innovation" like throwing over a quarter of a million monopolies into innovative markets every year. That's not helping innovation. It's throwing piles upon piles of sand into the gears of innovation.

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Posted on Techdirt - 15 April 2014 @ 10:35am

Judge Richard Posner's Ruling In Wacky 'Banana Lady' Case Highlights Just How Wrong Judge Kozinski Was About Copyright

from the two-famous-judges,-two-very-different-rulings dept

If you're talking about the short list of the most well-known appellate judges in the federal court system today, Judges Alex Kozinski and Richard Posner are likely on that list, potentially near the top. We've discussed both plenty of times in the past, sometimes agreeing strongly with rulings from both -- and sometimes finding their rulings maddeningly troublesome. However, lately we've been especially troubled by Kozinski's ruling in the Cindy Lee Garcia case, in which he appeared to make up his own rules about what copyright law says, and how an actress in someone else's film can magically claim a copyright over her performance.

A new ruling by Posner in a case that is... well... positively bananas, provides a nice quick lesson in just how wrong Kozinski was. The case of Catherine Conrad, the "Banana Lady" involves Conrad suing a bunch of credit unions over a variety of wacky theories after she performed at some event they held. All of the basic theories got tossed out by a state court, but since copyright is a federal issue, it went through the federal courts, ending up in front of Posner and two other judges in the 7th Circuit. The issue is that Conrad claims a copyright on a bunch of things she likely has no copyright claim over, but in part, told the credit unions that people in attendance could take photographs and videos, but only for "personal use." Conrad, additionally, insists that posting such images and videos to Facebook is not personal use, and therefore her copyrights have been violated. There are a whole bunch of problems with this argument, as you might imagine, but let's focus on one part of Posner's decision that Kozinski might want to take note of:

The performance itself was not copyrighted or even copyrightable, not being “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Assʹn, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2‐32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written “dance notation” of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 Wikipedia, (2d Cir. 1986); “Dance Notation,” http://en.wikipedia.org/wiki/Dance_notation. She did neither.
What's somewhat incredible is that the David Nimmer that Posner relies on above to highlight that a performance itself is not copyrightable is one of the few "copyright experts" to claim that Kozinski's bizarre interpretation makes sense. Of course, while Nimmer is still one of the most respected copyright scholars around, his analysis of copyright law has been increasingly odd over the past few years.

Meanwhile, Posner notes all the other problems with Conrad's wacky claim, including the idea that she could have a valid copyright on a banana costume:
Conrad has copyrights, which we'll assume are valid, on photographs and sculptures of her in her banana costume. She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product. See, e.g., “Adult Banana Costumes,” Google, www.google.com/#q=adult+banana+costumes&tbm=shop
I just love the thought of Richard Posner doing that Google search. There's also a somewhat hilarious explanation of what a "singing telegram" is. However, he accepts the possibility that she might have a valid copyright and explores whether or not photos and videos taken by audience members could possibly infringe. He finds that suggestion pretty much preposterous (again, Kozinski should read this):
Photos or videos made by members of the audience could conceivably have been either reproductions of, or works derivative from—that is, creative variants of, Gracen v. No. 13‐2899 5 Bradford Exchange, 698 F.2d 300, 304–05 (7th Cir. 1983)—copyrighted elements of Conrad’s performance, such as the costume (if it is copyrightable). And she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted. 17 U.S.C. ยงยง 106(1), (2). It’s unlikely that the photos and videos were derivative works; to be such a work, a photograph, or any other copy, must have an element of originality, Schrock v. Learning Curve Intʹl, Inc., 586 F.3d 513, 519 (7th Cir. 2009); Ets‐Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076–77 (9th Cir. 2000)—some modicum of creativity added to the copyright‐ed work. Cf. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); Bleistein v. Donaldson Litho‐graphing Co., 188 U.S. 239, 249–50 (1903) (Holmes, J.); Jewelers’ Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y. 1921) (L. Hand, J.). “To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.” L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc). But whether the photos or videos were mere depictions, or sufficiently departed from the originals to be derivative works, they would violate Conrad’s copyrights if the copyrights covered material that members of the audience duplicated in their photos and videos.

She had, it is true, authorized the arrangers of the trade association event to permit the members of the audience to take photos, or make videos, for their personal use. But that was a limited license. We don’t know how limited; but maybe it didn’t authorize posting photos or videos on the internet, or at least on some of the internet sites on which they were posted; and in that event such posting may have violated the provision of the Copyright Act that forbids unauthorized video or tape recording of a musical performance, 17 U.S.C. § 1101(a), or the provision that forbids the unauthorized public display of copyrighted musical or choreographic works. § 106(5). The arrangers might therefore be charged with having induced violation of those provisions. Cf. Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). But Conrad does not invoke either provision, and probably couldn’t because one of the arrangers advised the audience of the prohibition at the end of the performance—and Conrad doesn’t contend that any photos or videos of it were posted on the internet before the performance ended.

So her suit has no merit.
Separately, Posner notes that it seems clear that Conrad seems to spend an inordinate amount of time filing frivolous lawsuits, including one in which she even sued someone for not posting a video of her performance -- somewhat the opposite of the present case.
But we cannot end this opinion without remarking her abuse of the legal process by incessant filing of frivolous lawsuits. This is at least the eighth case she's filed in federal court since 2009, and she has filed at least nine cases in state court just since 2011.... She appears not to have won any judgments, but she did obtain settlements in the first three federal suits that she filed.

She once sued event organizers who mailed persons attending the event a postcard that had a picture of her in her banana costume. On another occasion she sued persons who videotaped her performance but declined to post the video on their website after she demanded a $40,000 license fee; her theory was that the recording infringed her copyright even though she had consented to it and that the individual defendants’ decision not to post the video (and thus avoid paying the license fee) constituted tortious interference with her business. The defendants obtained summary judgment in that suit after enduring 15 months of litigation.

She has filed suits in state and federal court against her former lawyers, and once sued her web hosting company for taking down her web site after she failed to pay the bill. The web host had paid $4000 to compensate her for “lost business” while the web site was down—even though it was down because of her failure to pay. She pocketed the $4000 but sued the web host—and in both state and federal court—anyway.

Her previous state‐court complaint against persons who are defendants in the present case accused one of them of being “armed and dangerous,” compared him to the Unabomber, and suggested that “someone from Homeland Security or Fort Know” (she must have meant Fort Knox) should take his “threats seriously.” She didn’t specify what those threats were, or whether she meant that he had made threats or that he posed a threat. She demanded that another defendant both admit having been “physically present at the Kennedy Compound located in Boston, MA” (presumably she meant Hyannis Port, not Boston) on the day before or the day of the trade association event involved in this case and produce all her travel documents for those days.

The defendants in one of Conrad’s federal suits were awarded more than $55,000 in costs and fees, pursuant to 17 U.S.C. § 505, which authorizes the award of costs, including a reasonable attorney’s fee, to the prevailing party in a copyright suit. She has been sanctioned at least $23,000 in her state court suits on the authority of Wis. Stat. §§ 802.05(3), 895.044, and possibly $73,000 more in one of the suits, though we can't be sure just why her company was ordered to pay that amount to the defendants in that suit.
Posner closes by questioning why the federal district court has not yet barred her from filing further suits until she has paid her previous litigation debts.

To be clear, this case is nuttier than the Garcia case in many ways, but the underlying principle concerning copyright is basically the same: whether or not a "performer" has any copyright claim. Posner dismisses such a preposterous idea quickly, whereas Kozinski upended decades of otherwise settled law.

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Posted on Techdirt - 15 April 2014 @ 9:33am

The Most Bizarre Response To The Pulitzers Yet, From The Guy Who Authorized CIA Torture

from the are-these-people-serious dept

So, the Guardian and the Washington Post won the Pulitzer for "public service" for their coverage of the NSA's surveillance activities. We mentioned how this should really end the debate over whether or not Ed Snowden was a whistleblower or not, but knew that would never happen. We'd already covered Rep. Peter King's incensed response, but an even more amusing response has to be the one from John Yoo. You may recall Yoo as the guy in the George W. Bush administration who basically shredded the Constitution in "authorizing" the CIA's torture program. He's weighed in a few times about the NSA stuff, arguing that the NSA shouldn't have to obey the Constitution because it takes too long and insists that the courts have no role in determining if something violates the 4th Amendment.

For reasons that are beyond comprehension, the political color commentary sportscasters at Politico decided to ask Yoo if the Pulitzer vindicated Snowden, and he (of course) answered with an emphatic no, though in a way that suggests he still has no clue what this story is about:

John Yoo, a former deputy assistant attorney general and author of the 2002 memos advising the CIA’s use of enhanced interrogation techniques, said the Pulitzer committee’s decision did not vindicate Snowden.

“I’m not surprised the Pulitzer committee gave The Washington Post a prize for pursuing a sensationalist story, even when the story is a disaster for its own country,” he said. “I don’t think we need automatically read the prize as a vindication for Snowden’s crimes. Awarding a prize to a newspaper that covered a hurricane does not somehow vindicate the hurricane, [and] awarding a Pulitzer for a photo of a murder does not somehow vindicate the crime.”
Except, of course, the award was not for their coverage of Snowden's actions (mislabled "crimes") by Yoo, but rather the NSA's actions. So if we replace "Snowden's crimes" in the quote above with "the NSA's crimes" the quote actually makes some sense. The reporting certainly was no vindication of the NSA -- quite the opposite. The award itself was always for the reporting on the NSA, and the reason it vindicates Snowden (and which Yoo seems unable to comprehend) is because without Snowden, there would be no reporting on the NSA's unconstitutional and illegal behavior. There would be no "national debate" on the surveillance state, and there would be no ongoing effort in all three branches of government to change how the intelligence community spies on people.

The award wasn't for reporting on Snowden. It was on the NSA. And it's that reporting that vindicates Snowden. It's simply crazy that folks like Yoo are so focused on hating Snowden that they still don't seem to realize that.

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Posted on Techdirt - 15 April 2014 @ 7:16am

Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech

from the not-just-about-copyright dept

Monday was the deadline for amici briefs over whether or not the 9th Circuit should rehear, en banc, the Garcia v. Google debacle, in which Alex Kozinski made a bunch of highly questionable decisions in ruling that actress Cindy Lee Garcia deserves a copyright in her 5-second performance shown in the controversial 13-minute "trailer" known as Innocence of Muslims. The 9th Circuit made it clear that it would welcome briefs from anyone who wanted to file them, and a bunch of organizations and companies have been lining up to do so. You can see the full list of briefs here, though at the time I write this, it's still being updated. If I get the chance I'll try to review some of the other briefs soon. However, I wanted to write about one such brief first: ours.

After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, it also said those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troubling copyright aspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.

Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order to get around Section 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.

There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.

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Posted on Techdirt - 15 April 2014 @ 5:16am

Would You Trust The NSA's Advice On How To Deal With Heartbleed?

from the didn't-think-so dept

Somewhat late to the game (by about a week), after the Heartbleed vulnerability was publicly revealed, and a few days after it was reported and denied that the NSA was already well aware of Heartbleed and exploiting it, the NSA has put out a one page PDF about Heartbleed. This seems like something of a too little, too late effort by the NSA to live up to its semi-promise of a "bias" towards revealing vulnerabilities over exploiting them. However, that leads to the simple question that plenty of people should be asking: given everything you've learned about the NSA recently (or, well, for years), would you trust the NSA's advice on how to deal with Heartbleed? Not that I think the NSA would publicly suggest anything bad, but at this point, the NSA has a serious trust problem in convincing anyone engaged in computer security that they have their best interests in mind.

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