Posted on Techdirt - 21 May 2013 @ 12:10am
As negotiators are seeking to finish up the Trans Pacific Partnership (TPP) agreement as soon as possible (they had originally promised a done deal by October), it appears that the controversial "intellectual property" chapter is causing the most problems, according to Sean Flynn, who is at the current negotiating round in Lima.
Officially, the Chief Negotiators have backed off the prior commitment to end the TPP negotiation by October, but are still clinging to a goal to end the negotiation by the “end of the year.” But privately, none of the negotiators or stakeholders at this round would express any confidence that the intellectual property issues could be resolved by then. The issues still under contention are massive.
The intellectual property chapter has grown to over 80 pages of text – including all the bracketed suggestions and alternatives. Some negotiators describe it as the longest text currently under negotiation.
Many of the issues are completely blocked. There has not been any new negotiation text offered on the most controversial pharmaceutical provisions since the Melbourne round over a year ago. There is currently no mandate from many countries to negotiate (they only “consult” and “discuss”) the pharmaceutical reimbursement chapter. Barbara Weisel described the pharmaceutical issues as being in a “period of reflection,” and had no comment on when that period might end.
Furthermore, it appears that some of the negotiators are realizing that it's a bad idea to lock in certain concepts, as would be set under the TPP, especially as various court rulings are changing the way copyright laws are viewed, and while a new copyright reform process is ongoing. People seem to be recognizing that agreeing to specific norms that may quickly be undermined by national laws would be a waste of time.
The recent spate of proposals for policy changes for US copyright law have caused a stir. The US is being asked how it can hold on to demands for parallel importation restrictions after the Kirtsaeng ruling, 70 year copyright terms after the Copyright Office proposed shifting them back to 50 years with formalities required for extensions, and strict restrictions on anti-circumvention liability exceptions when the Obama Administration and the Library of Congress have endorsed reforms that would violate the US proposal. Barbara Weisel stated that USTR is “doing what we can to work with Congress” to make sure that the TPP will not restrict policy options. But negotiators have said that there has been no visible movement on the USTR’s positions on Copyright issues, which will be negotiated this week.
And, of course, once again, the USTR appears to have no plans to be transparent in the slightest.
And there is no plan to release any text to the public. This is stark contrast to the last to plurilateral agreements including countries in the region. The Free Trade Area for the Americas and the Anti-Counterfeiting Trade Agreement both released full texts of the negotiating document with brackets indicating text under consideration before the finalization of the texts. For ACTA, there were four publicly released texts between April 2010 and May 2011. For the TPP – none yet, despite the Chief Negotiators’ pronouncement of end of year finalization plans.
Considering how much controversy there is over these items, it seems ridiculous that we still can't actually see what's being negotiated in our name -- especially when there's quite reasonable fears that it could mess with the democratic
process of potentially rewriting copyright law.
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Posted on Techdirt - 20 May 2013 @ 2:15pm
Well, well. Some Prenda supporters (shockingly, they exist) in our comments have been arguing that Judge Otis Wright's order against Team Prenda is the sign of a rogue judge who will get overturned. Of course, similar actions underway in other district courts suggest otherwise. On top of that, it would appear that the 9th Circuit appeals court doesn't seem too concerned about Judge Wright's order on a first pass either. Late last week, Paul Hansmeier, one of the key Prenda players, asked the appeals court to delay the requirement to pay sanctions so that he could get a proper appeal together. Of course, perhaps rather than putting together 30 pages protesting about the sanctions, Hansmeier should have been putting together a real appeal (or, as it turns out, reading how to file a stay pending appeal). The filing is certainly amusing. He whines about the lack of due process and the possible "reputational injury" this might cause.
Morgan Pietz, the lawyer who has been opposing Prenda in this matter (and, obviously, who would receive the bulk of the attorney's fees ordered), filed a very short and to the point brief saying he was actually fine with a stay on the payment, pending appeal, of course, but he wanted Hansmeier to first post a bond to show that the payment could be made. He also noted that he would have been happy to make this concession to Hansmeier if Hansmeier had just contacted him to let him know he was filing the brief requesting the stay. That's actually kind of a key point. Judges generally want the various lawyers to talk to each other about what's happening before surprise briefs are filed like this -- and so pointing out that Hansmeier filed a 30 page brief asking for the stay without even letting Pietz know about it probably won't be looked at too kindly by the court. As Pietz points out, there is very real concern about whether or not Prenda will ever actually pay up if they don't put up a bond.
The need for a substantial bond to secure payment of costs and fees from
Prenda is not an idle request. Prenda Law, Inc. and its associated lawyers are an
organization that is rapidly falling apart. They have dismissed the vast majority of
their pending court cases across the country—cases which are their sole source of
revenue. Meanwhile, as the days go by, they are increasingly being hit with new
motions and orders to show cause for sanctions in various courts where they have
tried, with mixed success, to escape from the consequences of their actions. Further,
the lawyers and the entities involved here are likely the subject of potential criminal
investigations, including an IRS investigation, flowing from the court’s formal
referrals in the sanctions order below. In short, there may not be any solvent persons
around to collect from for much longer. Further, as will be detailed in briefing on
the merits, the lawyers’ interests in these cases (as well as their assets, one
presumes) are hidden behind a web of Nevis LLC’s and mysterious offshore trusts.
These are all complicated factual issues, with which the district court is already
familiar, which is why the district court should set the amount and terms of the bond
Pietz also points out that the "reputational harm" argument is silly, because everyone already knows about it.
Either way, the Appeals Court wasted little time in saying "no,"
mainly because Paul Hansmeier, who presents himself as an accomplished lawyer, appears not to know the first thing about filing a stay pending appeal.
Appellant's emergency motion for a stay of the district court’s May 6, 2013
sanctions order is denied without prejudice to renewal, if necessary, upon the filing
and disposition of such request in the district court. See Fed. R. App. P. 8(a)(1).
in question says that if you're going to ask for such a stay, you have to first ask in the district court
, rather than going straight to the appeals court. I would imagine that if Hansmeier had talked to Pietz, Pietz might have made that point as well. The deadline to pay up is tomorrow, though now it seems like Hansmeier may need to go ask Judge Wright for a stay in the matter if he wants to avoid having to pay up.
Of course, that's not the only trouble Hansmeier is facing from the 9th Circuit, who now appears rather aware of Hansmeier's reputation. You may recall that Hansmeier has also been involved in the sketchy practice of protesting
class action settlements in the hopes of getting paid off to go away (in one letter he directly asked for $30,000 to go away). The appeal of one of those class action settlement battles is happening in this very same 9th Circuit, and Hansmeier had applied to be admitted in the 9th Circuit, where he cannot currently practice. As pointed out by Popehat, the court has taken notice of Judge Wright's order and told Hansmeier that he needs to clear up that
before it will admit him. As Ken White noted:
In other words: no, Paul, you can't have admission to the Ninth Circuit until this is cleared up, and we won't let you represent a client before us in the interim.
Actions have consequences.
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Posted on Techdirt - 20 May 2013 @ 1:13pm
We see so many bogus DMCA takedowns, and we hear the big copyright holders insisting that it's just an accident each and every time -- and not to worry about the collateral damage and censorship it leads to. So it seems interesting that TorrentFreak has uncovered a series of bogus DMCA takedown notices to Google from four different giant Hollywood players -- Viacom, Paramount (owned by Viacom), Fox and Lionsgate -- that each ask it to remove links to Simon Klose's excellent documentary about The Pirate Bay TPB AFK. As TorrentFreak notes, Fox, via DtecNet (another total failure for the "six strikes" company), asked Google to remove a link to the movie on Mechodownload. Viacom asked for links to be removed to the movie on Mrworldpremiere and Rapidmovies. Lionsgate asked for to remove a link to the movie from The Pirate Bay of all places. Needless to say, all of these were authorized copies that the movie studios were seeking to have hidden.
Beyond the obvious concern about censoring a movie that shows, perhaps, a more sympathetic side of the TPB crew and their legal situation, these kinds of take downs serve another, more nefarious purpose: making sure there is less value for authorized works on these various sites. You hear it all the time from these companies that these sites are "all bad" and must be taken down. Having authorized content really looks bad, so it's nice for them that they can remove it by filing bogus DMCA claims with no real recourse. No wonder the MPAA is so vehement that it shouldn't need to consider fair use before sending bogus takedowns.
Yes, I'm sure these were all just more "accidents" but the impact is very real. For struggling filmmakers like Klose, having authorized copies of his film removed from Google has a serious impact. Copyright maximalists never seem concerned in the slightest about the collateral damage on the people who have actually learned to use these platforms well. They prefer to protect those who fight against new systems of distribution, while harming those who have succeeded in using them.
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Posted on Techdirt - 20 May 2013 @ 12:07pm
Following the DOJ's brazen collection of info on AP reporter phone calls, we noted that it was not the first time the DOJ had been overly aggressive in going after reporters. Now, the Washington Post has another horrifying story, talking about the DOJ's investigation into a leak from the State Department to Fox News concerning classified info on North Korea. That investigation resulted in charges against Stephen Jin-Woo Kim, a State Department security adviser, but the investigation included heavy surveillance of James Rosen, the Fox News reporter. They obtained his phone records, security-badge data and email exchanges. In order to get all this, they claimed that Rosen wasn't just a reporter, but "an aider and abettor and/or co-conspirator" in the crime itself. For doing basic reporting.
By now it should be abundantly clear that this has little to do with protecting national security, and everything to do with a war on investigative reporting about the federal government. Almost everything seems to be designed to threaten reporters, and to put the fear of the federal government into any whistle blower who might have information to pass on to a reporter. As people have pointed out, what Rosen did in this case is what any national security reporter does all the time. Others have pointed out that this shatters the basic concept that those who report on the news are protected by the First Amendment in doing so.
The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime. (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)
And, not surprisingly, this tactic of going to war with reporters appears to be working
Mark Mazzetti, who covers national security for the New York Times — one of several leading investigative reporters I reached out to today — says he is experiencing a greater reluctance on the part of sources to talk to him.
"There's no question that this has a chilling effect," Mazzetti said. "People who have talked in the past are less willing to talk now. Everyone is worried about communication and how to communicate, and [asking if there] is there any method of communication that is not being monitored. It's got people on both sides — the reporter and source side — pretty concerned."
The end result, of course, is less ability to keep government abuses -- of which there appear to be many -- in check.
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Posted on Techdirt - 20 May 2013 @ 10:59am
Obscenity law and the First Amendment tend to run into each other from time to time and the whole "I know it when I see it" concept makes things a bit arbitrary in the best of situations. Still, it's pretty standard for people to assume questions of obscenity revolve around imagery -- still or video -- rather than written works. Text and stories often explore taboo subjects, but still are seen to have legitimate literary value. Stories like Vladimir Nabokov's Lolita involve somewhat horrifying concepts, but generally are still considered legitimate works of literature. In an age of easy creation for user-generated content, fan fiction and the like, it is not uncommon for things like slash fiction or related fan fiction to involve incredibly graphic scenes. Whether or not you see the appeal (and, personally, I don't get it at all), it's difficult to step aside and say that a particular form of storytelling should be judged as obscene and illegal. When it's purely fiction, and no one is being harmed or forced to participate and/or experience the work against their will, it is difficult to see what sort of harm has been caused. That is, perhaps, why it is "very rare" for there to be obscenity prosecutions for purely text-based works of fiction. Rare, but not unknown.
Just recently a federal district court in Georgia ruled that a series of stories written or edited by Frank McCoy were obscene, and thus he violated 18 USC 1462 in "transporting" obscene works. McCoy challenged whether or not the stories themselves could be considered obscene. As you might imagine, the subject matter is not mainstream. It is definitely on the extreme. Just reading the descriptions from the court case, which I will not repeat here, made me cringe and feel extremely uncomfortable. We're talking about extremely taboo subjects that are somewhat horrifying even just to read.
But, again, one could argue the same sorts of things about Lolita, or any number of other works. Should they, too, be deemed obscene? It seems like a dangerous slippery slope, especially when we're talking about purely written material. In this case, McCoy even had a distinguished English professor testify on his behalf that the works had "serious literary, artistic, political or scientific value."
In his defense, Defendant relies upon the testimony of an expert witness, Professor Gary Richardson, in order to show the Court that his work has serious literary, political, and artistic value.*fn8 (Docs. 165-4 at 67-90, 165-5.) Professor Richardson is a Professor and Chairman of the Department of English at Mercer University. Professor Richardson previously received a Fulbright Scholarship and is a decorated academic in the field of English and literature. Professor Richardson concluded, in his expert opinion, that Defendant's body of work had literary, political, and artistic value. (Doc. 165-5 at 34-36.) Professor Richardson describes Defendant's stories as love stories, "basic romance plots," and "science fiction." (Doc. 165-4 at 80-81.) While Professor Richardson acknowledges that the predominant themes in Defendant's work involve "social mores" and "may be considered taboo," he testified that these are incidental to Defendant's greater efforts to "undertake an artistic rendering." (Id. at 84.) These themes, including graphic and explicit incestuous sexual abuse, rape, torture, and murder of prepubescent children and young girls, are according to Professor Richardson, a form of "reader entrapment" which reflects his intent to generate political interest. (Id. at 85.)
During his testimony, Professor Richardson also described Defendant's use of complex literary techniques within his body of work that develop the characters and further the plot line;*fn9 including, interpolated tale (the use of competing narratives) and complex resonances. (Id. at 87.) Professor Richardson, as an expert in literature, urges the Court to consider a deeper level and "close reading" of Defendant's work and examine the pornographic "visual gaze" and "central consciousness" are complex "variations on narrative point of view." (Id. at 88.) According to Professor Richardson, Defendant's work "reflects serious thought and serious artistry." (Doc. 165-5 at 4.) Among his reasons in support of his conclusion that Defendant's body of work contains literary value are, for example, Defendant's use of inversion of a biological reality in the story entitled "Rapesuzy." There, Professor Richardson points toward Defendant's use of science fiction-including the use of nanobots-as he explores the complex and timeless themes of the nature of love, the difference and relationship between love and sexuality, and how society is disposed to interact sexually with the rest of the world. (Id. at 6-7.) For these reasons, Professor Richardson concluded that "under a narrow definition" Defendant's work does have serious literary value and further that "from the standards of people who study literature, [Defendant's] stories would manifest serious literary value."*fn10 (Id. at 19, 22.)
But the judge disagreed, saying that "the Court can find no independent value within the work when considered as a whole" and thus judged the work obscene, finding McCoy guilty. In a separate ruling
on the same day, the judge also rejected McCoy's attempt to have the case thrown out by arguing that the burden was on the government to prove that the works had no "serious literary, artistic, political or scientific value." In other words, there was a question of whether or not the First Amendment requires the assumption that the work has other value, and then it's the government's job to prove otherwise. But the court rejects that and says that the burden is on McCoy to prove that the work has such value -- though, as noted in the other decision, it then rejected the opinion of an expert who testified to that effect. Here, the judge said that the work deserves no assumption of protection:
Stated in other words, Defendant's short stories are not entitled to a heightened evidentiary standard, as a matter of federal constitutional law, because he believes them to be intrinsically literary, capable of joining the ranks of great classical erotic literature such as Ulysses, Tropic of Cancer,and Lolita.*fn5 See Bench Opinion at 9-12 (Discussion of why the Court concludes that Defendant's short stories, when taken as a whole, lack serious literary, artistic, political or scientific value). Accordingly, though the Eleventh Circuit was not convinced that the musical composition Nasty could speak for itself, this Court has far less trouble declaring that Defendant's sexually explicit narratives, with their only tangentially related plots, can speak for themselves.
The subject matter of McCoy's stories is certainly extremely far from the mainstream, and (as noted) could make many people (including myself) somewhat squeamish. But, it still seems troubling that a court is determining that a written work is flat out illegal, when its creation harmed no one, and the work itself has not been forced upon anyone who did not want it. In fact, within the court's ruling, it notes that McCoy put warnings on the work such that those who might be similarly troubled by the contents would know not to read it:
This story contains very graphic violence against a very young child. If such things bother you (and they do me) I advise against reading this. The story is based upon a line that ran through my head one night, and I couldn't get it out [...basic description of the very taboo subjects included in the story... ] FINAL WARNING !!!! If you think the previous description is based; the actual story is much worse! I strongly advise you to skip this one.
The court, however, uses this "warning" as extra evidence that McCoy knew the work was obscene, and thus uses it against him. That seems kind of silly. After all, wouldn't the concern over obscenity be the impact the work might have on an unsuspecting or unexpecting reader? Yet here, such a reader would be clearly warned off.
I find this troubling on a variety of First Amendment grounds, especially as the standards used in the case could apply to all sorts of works both professionally published (books exploring the taboo are not exactly uncommon) and to a ton of things written by unsuspecting individuals on the internet. While you and I might not find such works to have value, it still seems quite worrying when a court can decide what kind of stories are legal or illegal.
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Posted on Techdirt - 20 May 2013 @ 9:59am
The concepts of secondary liability seem to go right out the window (along with basic rationality) when it comes to certain people freaking out about copyright infringement. The latest is that Swedish prosecutors are apparently threatening the registrar that manages the .se domain with some form of charges because the Pirate Bay (briefly) ran on an .se domain.
“The legal system has not been able to shut down the service after the previous guilty verdict against TPB,” IIS Chief of Communications Maria Ekelund told TorrentFreak.
“Therefore the prosecutor has opened a new case against both the domain holders and .SE. The prosecutor is accusing .SE of assisting TPB who are assisting others to commit copyright infringement.”
[....] “In the eyes of the prosecutor, .SE’s catalogue function has become some form of accomplice to criminal activity, a perspective that is unique in Europe as far as I know,” says IIS CEO Danny Aerts.
That seems fairly ridiculous when you begin to think about the implications of it. This is so far removed from any actual infringement, it's incredible. This is the scorched earth approach to dealing with copyright infringement, with no care at all for any possible collateral damage in holding totally unrelated parties, who happened to be used by a service provider who, in turn, happened to be used by some people to possibly infringe, as liable for that infringement.
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Posted on Techdirt - 20 May 2013 @ 7:50am
As you may recall, we've recently written about the MPAA's protests against a treaty for the blind, as well as a similar protest from the Intellectual Property Owners Association (on that front, we heard that many members of that group never saw that letter before it was sent out, and were not happy about it). Now there's another group sending a letter, and it's equally as ridiculous. Business Europe, which appears to have a lot of non-European companies as members (interesting, that), has written a ridiculous letter with little basis in fact, arguing that this treaty for the blind would be "casting aside" the "international copyright infrastructure."
Of course, it does no such thing. All it does is provide extremely limited situations in which copyright restrictions would be limited for the sake of making it easier for vision-impaired people to access works. They also claim that it relies on "hasty conclusions" which is flat out laughable, since the treaty has been under discussion for almost three decades, but has been regularly blocked by organizations like those mentioned above. Business Europe's real complaint seems to be that it just doesn't like the people who like this treaty.
... it is strongly supported by the same group of NGOs and advanced emerging economy countries that pursue a general IPR-weakening agenda at WIPO and other international forums.
Got that? Those who argue that providing more rights to the public support this very minor place where more rights would be provided to the vision-impaired public, and we can't have that. No, no. They also, rather bizarrely, claim that some countries who are likely to sign on to this treaty "do not provide any copyright protection whatsoever." Jamie Love at KEI asks exactly which countries they're talking about. The statement from Business Europe is nothing but fear mongering. If a country doesn't provide any copyright protection at all, then why would it even care about a treaty whose focus is providing exceptions to copyright?
The level of freakout from these giant companies over helping the blind is really quite incredible.
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Posted on Innovation - 18 May 2013 @ 9:00am
For this week's awesome stuff, we've got three different projects that just caught my eye for being different and interesting in a design sense.
- I don't know about you, but I've had a few too many experiencing having to try to inflate an air mattress of some kind or another, and realizing what a freaking total pain it is using regular valves (not to mention the inevitable annoying emptying process as well). So I have to say that the Windcatcher project definitely piqued my curiosity. I don't understand the mechanism behind it, but it certainly looks like an air mattress that you can fill with 4 or 5 breaths -- and all without having to put your mouth on anything. It looks kind of like magic, so check out the video.
These guys still have a bit of a way to go on the funding front, having raised only about a quarter of the $50,000 they're seeking, but the product definitely has that neat design factor going for it.
- There's been something of a hipster revival in pinhole cameras lately, it seems, but the ONDU Pinhole cameras are definitely the nicest design I've ever seen. A nice wooden box with no exposed screws. A backplate that's held on by magnets. It just looks cool. Also, bonus points for the cool music in the video (apparently this is the musician.
This project has already surged past its goals, so it's definitely going to get funded, and with another 25 days to go, it'll likely end up much, much higher.
- Finally, there are times when someone designs something and you wonder why no one else has done it before -- or even why such things aren't common. That was the feeling I got after seeing the Nuplug, which is basically an extension cord/surge protector/outlet that attaches to furniture. So, rather than having your outlets on the wall and behind furniture, you can connect them in a more convenient way. Given how much stuff folks are charging all the time these days, I could definitely see how this could be handy for many people.
The one thing holding me back on this one, frankly, is that it's a bit on the ugly side -- in that it really stands out. Seems like something a little more subtle would be cooler. Maybe future iterations. This one also has a pretty ambitious $75,000 goal, and they're only a little past halfway there with 18 days to go.
That's all for this week...
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Posted on Techdirt - 17 May 2013 @ 5:27pm
Plenty of people rightly mocked the news a few years ago that the Associated Press was working on a plan to "DRM the news." The idea was to put some sort of licensing mechanism together to get news aggregators to pay to promote their news. This seemed incredibly dumb for a whole host of reasons. It added no value. Its only purpose was to limit the value for everyone in the system by putting a tollbooth where none needed to exist. When it finally launched last year to great fanfare in the newspaper world, under the name "NewsRight," we pointed out that, once again, it made no sense. Basically, the whole focus appeared to be on getting bloggers and aggregators to pay for a license they legally did not need.
Since the launch... we heard absolutely nothing about NewsRight. There was a launch, with its newspaper backers claiming it was some huge moment for newspapers, and then nothing.
Well, until now, when we find out that NewsRight quietly shut down. Apparently, among its many problems, many of the big name news organization that owned NewsRight wouldn't even include their own works as part of the "license" because they feared cannibalizing revenue from other sources. So, take legacy companies that are backwards looking, combine it with a licensing scheme based on no legal right, a lack of any actual added value and (finally) mix in players who are scared of cannibalizing some cash cow... and it adds up to an easy failure.
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Posted on Techdirt - 17 May 2013 @ 2:34pm
The Obama administration has supposedly been "considering" the latest version of the DOJ's plan to require backdoor wiretapping abilities in any form of digital communication. If you don't recall, the FBI asks for this basically every year. The latest version would lead to fines for any company that doesn't build in a backdoor wiretapping ability. We've been pointing out for quite some time that putting in such backdoors only makes us all less safe, because those with malicious intent will find and use those backdoors.
A new report has been released, put together by some of the best known technologists and security experts out there, saying that the plan, as being considered would effectively undermine any cybersecurity regime. At a time when the administration and Congress keep insisting that we need better cybersecurity, to undermine it all with wiretapping backdoors would be ridiculous. And let's not even begin discussing how this would play out if it passed and number one CISPA backer Mike Rogers then became head of the FBI.
Among the report's authors are names you might recognize, like Ed Felten, Peter Neumann, Bruce Schneier and Phil Zimmerman. You can read the full report (pdf) to see all the details. As Ed Felten told the NY Times:
“It’s a single point in the system through which all of the content can be collected if they can manage to activate it,” said Edward W. Felten, a computer science professor at Princeton and one of the authors of the report... “That’s a security vulnerability waiting to happen, as if we needed more,” he said.
Once again, all of this suggests that the efforts around "cybersecurity" have always been more of a cover story to try to make it easier for law enforcement to access data, rather than any legitimate effort at improving security.
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Posted on Techdirt - 17 May 2013 @ 12:32pm
Here's a fun one via Popehat. Apparently an Indian publishing firm by the name of OMICS can't take some criticism from a blogger. The blogger, Jeffrey Beall, who is based in the US, has a blog called Scholarly Open Access (he's also a librarian at the University of Colorado, Denver) in which he reviews and critiques various open access programs. As we've discussed, open access is really important for the sharing of knowledge -- but not all open access programs are created equal. In fact, there are serious complaints about many of them. Beall had some choice words for some of OMICS practices, which he claimed involved spamming and bait-and-switch. For what it's worth, Beall is hardly the only one to question OMICS' tactics. The Chronicle of Higher Education discussed OMICS in an article about "predatory" open access journals. As The Chronicle explains:
In 2012, The Chronicle found that the group was listing 200 journals, but only about 60 percent had actually published anything.
OMICS' response to Beall is almost too incredible to be believed, but it threatened to sue Beall for $1 billion and seek criminal penalties as well
. Yes, billion with a b -- so insert your Dr. Evil jokes here. Oh, if you're asking under what law?
In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information. The punishment can be as much as three years in prison.
As Ken White points out, the SPEECH Act
clearly protects Beall from any ruling in India. We've been waiting
for the first attempt to see that law used to protect someone from some insane foreign claim. If you don't recall, the SPEECH Act says that the US will not recognize foreign civil rulings over speech that would violate US law, such as the First Amendment.
Similarly, criminal charges would be meaningless, because any attempt at extradition to India would require dual criminality -- such that the acts would be criminal in both countries. That's clearly not true here (and it's debatable if they're actually criminal in either
Amazingly, when asked about this whole thing by The Chronicle of Higher Education, the lawyer representing OMICS, Ashok Ram Kumar, a lawyer with the firm IP Markets, appeared to double down on the threats and insist that he was "very serious" (TM), though various lawyers are a bit more skeptical of that.
"What he has written is something highly inappropriate," Mr. Kumar said. "He should not have done something like this. He has committed a criminal offense."
While Mr. Kumar said he and his client are "very serious" about the $1-billion amount, Jonathan Bloom, a lawyer with Weil, Gotshal & Manges, in New York, said it seemed more like a publicity stunt. "Sometimes people just want to puff their chests, indicate their reputation, and try to intimidate people that criticize them," Mr. Bloom said.
One thing that is clear, however, is that any company that would send out such a ridiculous threat over a blog criticism isn't a company worth trusting. Whether or not they spam and engage in bait and switch or other predatory practices, we do know with certainty that they send out insane legal threats. That's enough information necessary to decide that OMICS is not a company worth supporting.
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Posted on Techdirt - 17 May 2013 @ 11:29am
I've always been careful about putting my phone into "airplane mode" when flight attendants ask. However, a few years back, for reasons that I've yet to see any explanation for, flight attendants changed the script and started insisting that "flight mode" wasn't enough any more and you had to turn the phone all the way off. I've asked many times why this switch was made, and no one can say. At the point when that happened, I happened to have a smartphone that had no ability to turn off. I looked. There was no power button. There was nothing in the software that was a "turn off" function. The only way to turn it off was to pull out the battery. I did that on a few flights and then figured it was stupid. So I stopped. And nothing happened. With my current phone, I've tried to "turn it off" but even when it says it's turning off it's not really turning off (because when I switch the battery, it takes about 3 minutes to boot up -- but if I "turn it off" and then turn it back on, it's ready to go within a second). Today, I still always put it into flight mode, but that's it. I turn off the screen and put the phone away, but I don't "turn it off" because it's pretty clear the phone doesn't actually turn off. And the requirement is silly. Similarly, my tablet stays on in my bag and my laptop is generally in "sleep" mode, but not off.
And I'm not alone. It seems that lots of people leave their devices on when they fly.
In a study released on Thursday by two industry groups, the Airline Passenger Experience Association and the Consumer Electronics Association, as many as 30 percent of all passengers said they had accidentally left a device on during takeoff or landing. About 67 percent said they had never done this, always ensuring that their electronics were turned off. Four percent were unsure.
In another segment of the study, passengers were asked if they turn their devices to “off” when instructed to do so by the pilot. Although 59 percent of passengers said they do fully turn their electronics off, 21 percent said they often simply switch to “airplane mode,” which disables the main radios of a gadget. Five percent sometimes adhere to the rule. And others were either unsure or do not carry electronic devices on a plane.
People give all sorts of reasons for why the devices should be turned off, but none of them make much sense. There is the interference question, but given how many of these devices stay on, there would be at least some real evidence of interference by now if that were really a big concern. There is the "gotta pay attention to the flight attendants" argument, but then they wouldn't let you sleep or read a book during takeoff. There's the "flying device is dangerous if something goes wrong" argument, but that applies equally to books. So, what is the reasoning? There's either some reason that no one's explaining... or just a ridiculous overabundance of caution where it's clearly not necessary.
Of course, as I was finishing up this post, someone passed along a Bloomberg video that claims that phones do interfere with flight GPS
. If you look at at the text that goes with the video
, they cite a story of a flight that went off course until flight attendants convinced someone to turn off an iPhone. However, nowhere in the video do they even mention that story or give any data or support for that claim. The video claims are also suspect. They name a single
study from nearly a decade ago talking about a single phone, which is no longer on the market, that caused some interference. The other "studies" they look at include a very small number of claims from pilots who claim problems and that they "suspect" interference from phones, but those are never confirmed. They found 75 such claims over six years, but without any evidence to back them up.
Again, given how often people leave their devices on, you would expect a lot more verifiable evidence beyond a few pilots "suspecting" that phones were the problem, when a variety of other variables might have been a part of it.
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Posted on Techdirt - 17 May 2013 @ 10:32am
Reader Jason sent over a blog post that sent me down a bit of a rabbit hole, following the story through a variety of twists and turns. The key player in the story is Jonathan Monsarrat, who among other things founded the video game company Turbine (Asheron's Call, Lord of the Rings Online, Dungeons & Dragons Online, etc.). In early 2010, Monsarrat was arrested concerning events at a party in Massachusetts. The charges against him were later dismissed. However, there were various blog discussions among local bloggers and commenters. Not long ago, approximately three years after all of this happened, Monsarrat sued two named defendants and 100 "John Does" in a Massachusetts (not federal) court on a variety of charges, centering around defamation, but also including copyright infringement, commercial disparagement, deceptive trade practices and conspiracy. He's asking for an astounding $5.5 million.
Reading through that complaint first, before digging deeply into a variety of other sources, there were some immediate oddities. Many of the "defamatory" statements didn't seem to have anything that could possibly be defamatory in them. Some of them possibly reached the level of defamation, but at worst they read like typical silly hyperbole among internet commenters. Hardly worth worrying about. But other stuff seemed even odder. A copyright claim not in federal court? And for what sounded like adding context/imagery to a news article? Hmmm. That doesn't sound right. State copyright claims are pre-empted by federal copyright law (and, no, this isn't one of those possible exceptions involving pre-1972 recordings). Commercial disparagement? Over some blog comments? There were a lot of alarm bells, signalling something that required a lot deeper look.
Then, I came across the actual news reports of his arrest -- both the Boston Globe one linked above and the Wicked Local story. Both seem to be pretty clear that they're reporting based directly off of a police report -- and state things from that police report that Monsarrat is now claiming are entirely untrue and defamatory. But... for those who repeated them on the blog, even if they did turn out to be untrue, they'd have an incredibly strong fair report privilege claim. For example, the lawsuit suggests that Monsarrat was just a guest at the house and knew little of the party before it happened. From his filing:
The party leading to Plaintiff's arrest was hosted by another third party, "Trano", and not by Plaintiff.
This other third party, Trano, provided music entertainment, bouncers and beer at this party, which Plaintiff knew nothing about until the immediate time leading up to the commencement of the party.
The non-use of Trano's full name is also an interesting choice. Anyway, according to the Boston Globe coverage of the incident:
Upon arriving at the scene, police found broken beer bottles near the door of the first floor of the apartment and 25-30 teenagers inside. Many were attempting to conceal bottles of beer and other alcoholic beverages, the police report states. Open bottles of alcohol were found in the kitchen area as well as a small amount of marijuana.
Monsarrat identified himself as the host of the party, but denied that any alcohol was being served, the report states. When asked by an officer to inform his guests that the party was ending, Monsarrat became “argumentative” and refused to follow instructions, police said. Officers asked for identification from several partygoers who responded, “We're in high school, we don't have ID."
Then the story gets even odder. In researching it, up popped a press release from Monsarrat himself about the lawsuit
, in which he refers to himself as a "dotcom era icon and Internet expert." Also, there's this:
Jon Monsarrat announced this week that as part of an Internet defamation case, he will expose the real identities and addresses of 100 cyber bullies as part of his new cyber investigation service.
Oh, wait a second...
Earlier in 2013 he created a cyber-investigation service, which cracks the real identities of cyber bullies who post defamatory material online. The release of names and identities is part of this new service, for one of Monsarrat's client with an ongoing legal case against cyber bullies. His company is working in partnership with Defend My Name, perhaps the most technically advanced of the top anti-defamation services, and Ishman Law Firm, which has expertise in defending victims from cyber-attack.
Jon Monsarrat said, "Cyber bullies harass and spread lies about their victims using the power of the Internet, which leads to thousands of suicides a year. The police and courts are not always up to the challenge of fighting back. Now I'm bringing two patented technologies to bear to help people in need." Monsarrat was referring to his two patents in collecting and analyzing data from public websites.
This might present a possible reason that it took about three years after the original blog posts to file a lawsuit (by the way, statute of limitations on defamation in Massachusetts: three years).
, a bunch of LiveJournal users -- including some who claimed they never commented on the original blog post -- began receiving letters
saying that they're being added to the lawsuit. Apparently, those letters have some bogus boilerplate in them claiming copyright on the letter and stating "I prohibit anyone from publishing or disclosing it in whole or in part, on the internet or any other venue or any other means, without first obtaining my written consent." That, of course, is bullshit. It is not how copyright works, especially on a legal threat letter. At least one blogger has written that Monsarrat threatened to include him in the lawsuit
for merely writing about the lawsuit
and for the comments others had left on that blog. Of course, there is no legitimate claim against writing about the lawsuit, and the blogger is protected from liability from the comments under Section 230 of the CDA.
Then, and only then, did I finally get to reading the epic response letter from the lawyer representing Ron Newman
, one of the two named defendants in the lawsuit. The lawyer is Dan Booth of Booth Sweet LLC, a law firm you may recognize from its awesome job fighting back against numerous Prenda Law cases. I cannot do justice to the entire 18 page letter, so I suggest you read it in its entirety, but I will give you a few highlights. I will note that this is not a legal document filed with the court in response to the lawsuit, but rather a letter to Monsarrat's lawyer, Mark Ishman, of the Ishman Law Firm, which Monsarrat's press release names as a "partner" in this new "expose-the-cyber-bully" business.
The letter picks apart the case piece by piece in devastating fashion, noting repeatedly that the claims made in the lawsuit are so far removed from reasonable that if Ishman and Monsarrat do not drop the lawsuit, Booth and Newman will seek sanctions for bringing bad faith claims. He then goes on to lay out, in excruciating detail, what their arguments would be in court, repeatedly asking Ishman if he's ever actually read the statutes he's relying on. He notes the articles based on police reports as just a starting point. He then points specifically to the few quotes that were actually Newman's, showing how the complaint appears to take them entirely out of context and misrepresent what they were saying, and there is simply no way they were even remotely defamatory. Some of them are ridiculous when put back into context -- including using a comment about how Newman and some other admins had agreed to close the original thread to more comments, and saying that
was defamatory. It also, of course, references CDA 230 to point out that Newman clearly is not liable for anyone else's comments.
Those are the basics. Then it goes even deeper. I'll let Dan Booth handle this part:
The second claim for relief is supposed to be under Chapter 93A of the Massachusetts General Laws. Have you ever actually read that statute? I'm not sure you made it all the way through to Section 9(3), which requires that a demand letter complying with certain statutory requirements must be mailed to a defendant at least 30 days before filing suit under Chapter 93A. "[T]he thirty-day requirement, as part of the requirement of a written demand for relief, is a prerequisite to suit, to be alleged and proved." York v. Sullivan, 369 Mass. 157, 163 (1975). Perhaps you jumped the gun a bit here? You filed suit on February 4, so you would have needed to send a demand letter before January 5, 2013 to satisfy the statute. Mr. Newman received no such letter. As far as I can tell, you didn't even comply with the spirit of the 30-day requirement -- you made no attempt to settle the dispute amicably before filing suit, or before filing the amended complaint, or before having it (and its telephone-book sized pile of exhibits) served on Mr. Newman.
How about the commercial disparagement stuff? Yeah, under the law, such statements need to be made by a competitor, which Newman clearly isn't. Oh, and Booth notes he didn't actually disparage any products or services, as required by the law. And then we move on to the copyright claim. We already noted the oddity of trying to shove a copyright claim into a state (okay Massachusettians: commonwealth) court, and Booth highlights some more problems:
Attorney Ishman, I see on your website that you hold yourself forth publicly as a copyright lawyer. I am too. I commend you for that, and for any work you do to legitimately support and protect creators. I like copyright law a lot; I just hate to see it abused. So I wonder whether you may have gotten a bit ahead of yourself with this cause of action.
Claims of common-law copyright are preempted by the Copyright Act, 17 U.S.C. § 101 et seq. Have you read that statute? Since the 1976 Copyright Act became effective, Section 301 has explained that copyright claims are "governed exclusively" by the Act, and that "no person is entitled to any such [copyright] or equivalent right in any such work [within the subject matter of copyright] under the common law or statutes of any State." 17 U.S.C. § 301(a).
In other words, common-law copyright claims are a relic. "Under the Copyright Act of 1976 ... common law copyright is abolished." Burke v. NBC, Inc., 598 F.2d 688, 691 n.2 (1st Cir. 1979). There have been no reported cases in Massachusetts state courts since the 1976 Act in which a common-law copyright was found valid. But there have been several that say things like, "These common law claims ... have clearly been preempted by the 1976 Copyright Act." Sicari v. Raccula, 2 Mass. L. Rep. 109 (Mass. Super. Ct. May 8, 1994). To the extent such claims exist, they're generally limited to media where, due to quirks of the Act's history, no statutory right ever existed, such as extemporaneous speeches or pre-1972 sound recordings. But the copyright claim in this case concerns a photograph, and those have been covered by the Copyright Act since Oscar Wilde was a young man. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). Your assertion that Mr. Monsarrat's images are "subject to common-law copyright protection under the laws of the state of Massachusetts" (Complaint ¶ 102) is wrong as a matter of black-letter law.
Booth even goes through a "sake of argument" explanation for how, even if common-law copyright could apply to a photograph (which, as noted, it cannot), via Monsarrat's own actions, that photograph would be in the public domain under the specifics of the prevailing copyright law.
goes on to point out when you look at Newman's actual
comments, he actually was quite even handed when the story broke, noting things like, "To my knowledge he hasn't been found guilty of any crime in a court of law." And he invited Monsarrat to present his side of the story. And yet, Monsarrat tries to paint Newman's activity as "extreme and outrageous" for the sake of "intentional infliction of emotional distress."
And then, Booth goes on to point out that the record suggests the version of the story that Monsarrat presents in his filing is less than accurate:
Those assertions are directly contradicted by the record. Set aside the fact that Mr. Monsarrat was at the party and that he was arrested at the party. Set aside the fact that both the police report and the Somerville Journal article stated plainly that Mr. Monsarrat had "identified himself as the host of the party." Set aside the fact that the police report indicates that Mr. Monsarrat denied, to the arresting officer, that there was any alcohol at the party, despite the officer's firsthand observations. Mr. Monsarrat publicly announced his role in the party online, before his arrest. As Mr. Newman pointed out at the time, Mr. Monsarrat had posted an open invitation on his Wheel Questions blog, announcing that he was holding the party, two days before it happened. Complaint Exhibit 4 p. 69 ("I'm holding a party Friday in the Boston area. RSVP to firstname.lastname@example.org and say a little about yourself for the location.") (quoting Mr. Monsarrat). If Mr. Monsarrat wants to clear his name by suggesting that he was a mere innocent bystander at the party, he cannot hope to succeed in rewriting the public record. His own words will be admissible as non-hearsay, to prove the truth of his statements identifying himself as the host, and to disprove statements to the contrary in the complaint. See Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998) ("A party's admission is excluded by definition from the hearsay rule.") (citing Proposed Mass. R. Evid. 801(d)(2)); see also Flood v. Southland Corp,. 33 Mass. App. Ct. 287, 294-95 (1992).
And we're not done yet. He points out that many of the comments included in the claim are way outside the statute of limitations, and Massachusetts has a well established single publication rule, meaning that the date when the content is published is when the clock starts ticking on the statute of limitations. The fact that the content remains online is meaningless. Booth also points out the ridiculousness of the $5 million dollar demand.
The complaint seeks punitive damages in an amount to exceed $5,000,000. That is outrageous on its face, and wholly unsustainable under controlling law. Massachusetts has not allowed such damages since 1974. "In a case of defamation the plaintiff's recovery is limited to actual damages, which are compensatory for the wrong done by the defendant. ... Punitive damages are never allowed ... even after proof of actual malice." Stone v. Essex County Newspapers, Inc., 365 Mass. 246 (1974) (citations omitted). The Supreme Judicial Court of Massachusetts reaffirmed that position the following year: "We reject the allowance of punitive damages in this Commonwealth in any defamation action, on any state of proof, whether based in negligence, or reckless or wilful conduct. We so hold in recognition that the possibility of excessive and unbridled jury verdicts, grounded on punitive assessments, may impermissibly chill the exercise of First Amendment rights by promoting apprehensive self-censorship." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860 (1975).
As for the letters that various LiveJournal users are receiving:
It is my understanding that Mr. Monsarrat has busied himself, since the filing of the amended complaint, by reaching out to people he believes responsible for these three-year old discussions, sending them wildly improper threatening letters and/or directly confronting in person. In at least one of those letters, he states, "The purpose of this correspondence to is [sic] notify you that I am suing LiveJournal forum moderator Ron Newman for $5,500,000 for defamation, and that you are named as a Doe Defendant in this lawsuit..." These actions are deeply dismaying. Mr. Monsarrat is tarnishing Mr. Newman's name in scattershot fashion, to many people who may have had no relation to the postings at issue. He may not harass people in the Somerville community by seeking to intimidate them into removing their legitimate free speech comments.
Booth also points out that in intimidating various LiveJournal users into possibly removing their comments, there may be further issues with regard to encouraging the destruction of key pieces of evidence:
When Mr. Monsarrat succeeds in this intimidation, he helps to destroy the record that would be at issue if the litigation were to proceed. If this pattern of behavior continues, he may be subjecting himself to sanctions for suborning spoliation. Thanks to poor formatting, many of the Complaint's Exhibits reproduce discussion threads in piecemeal fashion, omitting much or all of the text of longer comments. See, for just one example, Complaint Exhibit 4 pp. 31-42. These fragmentary Exhibits leave the original online discussions as the only reliable source of material evidence. Any deletion of those comments, as Mr. Monsarrat demands, makes them invisible to subsequent viewers, depriving defendants of the context-specific defenses that a defamation claim requires. "'The destruction of relevant evidence ... has a pernicious effect on the truthfinding function of our courts.' ... The doctrine of spoliation permits the imposition of sanctions or remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced." Scott v. Garfield, 454 Mass. 790, 797 (2009) (quoting Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 553 (2002)).
Booth also notes the same press release I saw, and raises some questions about it:
It appears this action has been filed with an ulterior purpose: not as a good faith means to redress any legitimate grievances, but as a case study to be used in marketing one of Mr. Monsarrat's business ventures. That would be more than improper enough, but worse, the entire purpose of "cyber investigation service" seems to be to empower litigants to make endruns around the discovery process, as Mr. Monsarrat has done.
And, also, the oddity of the fact that Ishman appears to be both a lawyer for Monsarrat and
a business partner:
This partnership, in the place of a putative client and attorney relationship, is more than irregular. It may subject Attorney Ishman and his law firm to the same liability as Mr. Monsarrat, based on their involvement in a larger scheme. See Kurker v. Hill, 44 Mass. App. Ct. 184, 192 & n. 8 (1998). "[A] civil action is wrongful if its initiator does not have probable cause to believe the suit will succeed, and is acting primarily for a purpose other than that of properly adjudicating his claims." G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). It appears that Mr. Monsarrat has dragged Mr. Newman into court, and badgered an untold number of others, to make a name for his "cyber investigation service." This ulterior purpose, combined with the paucity of the complaint's factual allegations and legal claims, strongly suggest that the action has been undertaken without good faith. These improprieties would support counterclaims of abuse of process, see generally Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010), and under Chapter 93A, see Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co., 986 F.2d 607, 611 (1st Cir. 1993) (filing legal claim "which proves baseless" is an unfair trade practice if claim brought with "ulterior motive"); Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 44 n. 7 (2010); Refuse & Envtl. Sys., Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 43 (1st Cir. 1991) ("bringing [a] lawsuit in spite of the evidence" can violate Chapte 93A). These improprieties would further support sanctions under M.G.L. c. 231, § 6F, see Fronk v. Fowler, 456 Mass. 317, 334 -35 (2010) ("Claims that are so unmoored from law or fact are the very definition of 'frivolous': 'Lacking a legal basis or legal merit; not serious; not reasonably purposeful.'") (quoting Black's Law Dictionary 739 (9th ed. 2009)), and under Mass. R. Civ. P. 11, see Van Christo Adver. v. M/A-COM/LCS, 426 Mass. 410, 416-17 (1998).
Believe it or not, those aren't even all of the highlights of the letter. I imagine that this one could get interesting if Ishman and Monsarrat choose not to take Booth's stern suggestion that they immediately dismiss the claims against Newman with prejudice.
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Posted on Techdirt - 17 May 2013 @ 9:29am
For years, we've noted that the big drug companies like to conflate legitimate foreign pharmacies (often based in Canada) that sell back into the US (the so-called "reimportation" or "parallel import" market) at cheaper prices with out and out bogus or counterfeit online pharmacies. The drug companies like nothing better than when people lump the two very different beasts together and label them all as "counterfeit." Of course, for many Americans, relying on cheaper legit drugs from Canada is the only way they can survive, and there have been efforts made at times by US politicians -- including President Obama -- to support more parallel importation to ease the high cost of drugs in the US.
However, there's an interesting tidbit coming out in the ongoing battles over new top level domains. It appears that the National Association of Boards of Pharmacy is seeking a .pharmacy domain, which (obviously) they would then only bestow upon pharmacies that they like. That could be a big issue, because it's likely they wouldn't allow that for certain Canadian pharmacies and other foreign legitimate pharmacies that may offer cheaper drugs. Both Demand Progress and Public Citizen recently filed comments with ICANN about why NABP should not be allowed to control .pharmacy.
From Public Citizen's filing:
Granting the .pharmacy domain to NABP would confer legitimacy on pharmacies sanctioned by NABP, to the detriment of those that are not.
NABP has proposed an unfair standard that would bar online pharmacies that serve US consumers but are located outside of the United States from using the domain (see NABP’s application at Section 18(a) IV*). This would exclude many licensed pharmacies which offer American consumers low-cost medicines of quality.
Whether a pharmacy is located in the United States does not determine whether a pharmacy is licensed and provides medicines of quality.
Consumer access to medicines depends in significant part on price and competition. It would be inappropriate to allow NABP to control such an important gTLD while it maintains exclusionary plans for the domain, which work against the consumer interest in a robust market of quality affordable pharmaceuticals.
And, from Demand Progress's filing
The pharmaceutical industry has prioritized trying to shut down legitimate pharmacies selling safe Canadian drugs to U.S. consumers (as currently allowed by the U.S. Food and Drug Administration). But their tactics to achieve these anti-consumer goals involve censorship regimes allowing government seizure of domains, blacklists of sites, or suspended hosting services for legitimate competitors.
NABP supporters have justified their actions by preying on consumer fear of counterfeiters, when their real goals include shutting down sites providing cheaper legitimate drugs. Pfizer joined the assault on the Net in 2011, testifying to Congress that: "The major threat to patients in the U.S., however, is the Internet..." ...
NABP's supporters define "fake pharmacies" as those not registered with VIPPS, rather than only those selling actual counterfeit goods.
The Demand Progress comment also points out how the big pharmaceutical companies supported SOPA and PIPA, since they knew that it, too, would be useful to use as a sledgehammer against foreign online pharmacies that sold legitimate drugs back into the US.
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Posted on Techdirt - 17 May 2013 @ 8:32am
I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:
- Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
- Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
- Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?
Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.
- Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
- Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
- Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
- Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
- Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.
While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.
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Posted on Techdirt - 17 May 2013 @ 5:27am
We should have know that once the press started picking up on the ridiculous moral panic over Google Glass that Congress would be quick to follow. In a move that smacks of traditional political grandstanding, a group of Congressional Representatives have sent a letter to Google raising a bunch of questions about the supposed "privacy concerns" of Google Glass. I'm wondering if next they'll summon a representative of the seeing public to discuss the privacy concerns of your own two eyes.
First, they jump to the go-to point that any anti-Google privacy activist goes to: the data collection from open WiFi. What no one ever seems willing to discuss is the fact that this is the nature of open WiFi. Anyone can see any of the unencrypted data traveling over that access point. Why that gets blamed on Google makes no sense. They also worry about privacy of non-users, which is definitely a point that others have raised. But, how is this privacy issue different than one of basic sight. Google Glass sees what a user sees. If they can see you doing something you don't want exposed, they can reveal that as well. How is that a privacy issue specific to Google Glass? There are a number of other odd questions, including whether or not Google considered the privacy implications of the NY Times' Google Glass app. Huh? First off, if there were privacy implications, shouldn't they be the NY Times' concern on that issue? And second, can anyone explain why possible privacy issue could be in play here? It's a news app on a tiny screen. So what?
When regular cameras first came on the scene, there were similar scare stories and people worried about the privacy impact of still photo cameras. We pretty quickly learned how to cope and adapt to that. Why do people think we can't learn and cope with Google Glass?
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Posted on Techdirt - 17 May 2013 @ 3:25am
You may recall that Prenda had (not surprisingly) gone crazy overboard with subpoenas in its attempt to intimidate some anti-copyright troll bloggers and their commenters. The EFF stepped in and asked a court to quash the subpoena, which the court has now done, in large part because Prenda never even bothered to respond.
of this date, no responsive memorandum has been filed. LRCiv 7.2(i) provides in part “if the
opposing party does not serve and file the required answering memorandum, ...such
noncompliance may be deemed a consent to the denial or granting of the motion and the
Court may dispose of the motion summarily.” Pursuant to this rule, the Court deems
Plaintiff's failure to serve and file the required answering memorandum a consent to the
granting of Defendant-Movant's Motion to Quash the Subpoena to Wild West Domains
Seeking Identity Information.
I guess Prenda's a bit busy. Or someone there realized this subpoena had zero chance of actually going forward. Either way, the subpoena is dead.
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Posted on Techdirt - 16 May 2013 @ 7:58pm
Back in March, we noted that while a district court had ordered the US to hand over the evidence it was planning to use against Kim Dotcom, an appeals court had overturned that ruling, and said that the evidence wasn't needed for the extradition fight. Dotcom immediately appealed to New Zealand's Supreme Court, who has now said that it will review that ruling as well, so this case will continue to drag on for some time.
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Posted on Techdirt - 16 May 2013 @ 3:01pm
With copyright reform back on the table, there are bound to be more and more discussions and various ideas suggested. But here's one that we hope is a no brainer for everyone. Carl Malamud, who has worked on making more public information available to the public than anyone else (and, yes, it's crazy that he needs to do this), has famously highlighted many cases of governments locking up key information that the public ought to have, including official copies of laws, judicial rulings and the standards that are referenced by various laws. So he has now proposed -- with the support of a bunch of big thinkers in this arena -- a simple proposal for one specific type of copyright reform: The Edicts of Government Amendment. The idea is simple:
To promote access to justice, equal protection, innovation in the legal marketplace, and to codify long-standing public policy, the Copyright Act of the United States, 17 U.S.C., should be amended as follows:
“Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.”
This language comes directly from Section 206.01, Compendium of Office Practices II, U.S. Copyright Office (1984). It reflects clear and established Supreme Court precedent on the matter in cases such as Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888). The law belongs to the people, who should be free to read, know, and speak the laws by which they choose to govern themselves.
Such a basic concept, I'm wondering if there's anyone who will present a counter argument for why this shouldn't be done today.
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Posted on Techdirt - 16 May 2013 @ 1:54pm
You may recall that soon after Viacom sued YouTube, the Premier League football association (which is notorious for aggressively seeking to enforce its copyrights) sued as well, and sought to turn its case into a class action lawsuit for basically anyone who might have had their copyright-covered works uploaded to YouTube. The court has now eloquently smacked that attempt down, pointing out that the issues for different individuals and organizations would be totally different, making it inappropriate to lump them all together.
Forty five years ago Judge Lumbard of the United States Court of Appeals for this circuit called a case a "Frankenstein monster posing as a class action." ... The description fits the class aspects of this case.
The putative class consists every person and entity in the world who own infringed copyrighted works, who have or will register them with U.S. Copyright Office as required, whose works fall into either two categories: they were subject of infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the "repeat infringement class"), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the "music publisher class"). Plaintiffs assert that there are "at least thousands of class members" the Repeat Infringement Class, and "hundreds" in the Music Publisher Class...
It then goes on to point out that YouTube is just the platform, and just because infringing content is uploaded to YouTube, it doesn't automatically make YouTube liable. It notes that "YouTube does not generate infringing material." And, given that, the situations of various potential class members is quite different. Then there's a strong point related to all of this: because there are all sorts of different issues related to copyright, "copyright claims are poor candidates for class-action treatment." Specifically, there would need to be specific evidence relating to each individual infringement, and that makes it silly to do this as a class action.
Here to make resolutions which advance the litigation will require the court to determine, for each copyrighted work claimed to have been infringed, whether a copyright holder gave notices containing sufficient information to permit the service provider to identify and locate the infringing material so that it could be taken down. That requires individualized evidence. Further, the analysis required to determine "fair use," and other defenses, is necessarily specific to the individual case.
The court points out that the benefit of a class action is that there's "an issue that is central to the validity of each of the claims in one stroke" but that's clearly not true with mass copyright claims. Given all that, the class certification (for both classes) was denied.
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