Posted on Techdirt - 13 December 2013 @ 12:07pm
Let me start this post off by saying that I know that Paul Krugman seems to inspire... a certain kind of extreme reaction from some people, whether they support him or not. I don't fully know why this is. I think he's got some interesting insights some of the time, and I think he gets some stuff right and some stuff woefully wrong. But that's kind of true of a lot of people. Either way, I'm hoping that the discussion following this post can focus on the specifics of his discussion about the TPP (Trans Pacific Partnership) agreement, rather than tossing around ad hominems directed at Krugman and/or the reverse of that.
Anyway, it appears that Krugman has decided to discuss the TPP agreement after many of his readers asked him to weigh in. And his response is basically to dismiss the entire agreement as not really being a big deal one way or the other. The entire crux of his analysis can be summed up as: trade between most of the countries in the negotiations are already quite liberalized, so removing a few more trade barriers is unlikely to have much of a consequence. Therefore, the agreement is no big deal and he doesn't get why people are so up in arms over it.
On his basic reasoning, he's correct. There's little trade benefit to be gained here. In fact, some countries have already realized this. But that's why the TPP is so nefarious. It's being pitched as a sort of "free trade deal," and Krugman analyzes it solely on that basis. That's exactly what the USTR would like people to think, and it's part of the reason why they've refused to be even the slightest bit transparent about what's actually in the agreement.
Instead, the TPP has always been a trade liberalization agreement in name only. Sure, there's some of that in there, but it's always been about pushing for regulatory change in other countries around the globe, using trade as the club to get countries to pass laws that US companies like. That's why there's an "IP chapter" that is entirely about building up barriers to trade in a so-called "free trade" agreement. It's why a key component of the bill is the corporate sovereignty provisions, frequently called "investor state dispute settlement" (in order to lull you to sleep, rather than get you angry), which allow companies to sue countries if they pass laws that those companies feel undermine their profits (e.g., if they improve patent laws to reject obvious patents -- leading angry pharmaceutical companies to demand half a billion dollars in lost "expected profits.")
Krugman judging the TPP solely on its net impact on trade is exactly what TPP supporters are hoping will happen, so it's disappointing that he would fall into that trap. Thankfully, economist Dean Baker, who does understand what's really in TPP, was quick to write up a powerful and detailed response to Krugman that is worth reading.
However it is a misunderstanding to see the TPP as being about trade. This is a deal that focuses on changes in regulatory structures to lock in pro-corporate rules. Using a "trade" agreement provides a mechanism to lock in rules that it would be difficult, if not impossible, to get through the normal political process.
To take a couple of examples, our drug patent policy (that's patent protection, as in protectionism) is a seething cesspool of corruption. It increases the amount that we pay for drugs by an order of magnitude and leads to endless tales of corruption. Economic theory predicts that when you raise the price of a product 1000 percent or more above the free market price you will get all forms of illegal and unethical activity from companies pursuing patent rents.
Anyhow, the U.S. and European drug companies face a serious threat in the developing world. If these countries don't enforce patents in the same way as we do, then the drugs that sell for hundreds or thousands of dollars per prescription in the U.S. may sell for $5 or $10 per prescription in the developing world. With drug prices going ever higher, it will be hard to maintain this sort of segmented market. Either people in the U.S. will go to the cheap drugs or the cheap drugs will come here.
For this reason, trade deals like the TPP, in which they hope to eventually incorporate India and other major suppliers of low cost generics, can be very important. The drug companies would like to bring these producers into line and impose high prices everywhere. (Yes, we need to pay for research. And yes, there are far more efficient mechanisms for financing research than government granted patent monopolies.)
Hopefully Krugman can be convinced to rethink his initial analysis after investigating more of what's actually going on with the TPP agreement, and will no longer be fooled into thinking it's actually about trade. Of course, this is part of why the USTR is so secretive. The more they can get people thinking it's about trade, the less they'll realize it's actually about exporting bad regulations to favor a few crony-connected industries.
2 Comments | Leave a Comment..
Posted on Techdirt - 13 December 2013 @ 11:04am
Here are two separate stories we've covered in the past that we never expected to link up. First up, there's the massive set of legal disputes that Chevron has been involved in down in Ecuador. The legal battles have been going on for 20 years and still continue. I won't get into all of the details there, but you can click that link to read the basics. We've actually written about this fight in a few more specific contexts over the years: (1) a few years ago, Chevron sought to force a documentary filmmaker to turn over some of the cut footage from his documentary, which Chevron won. The company claimed that the footage would help it get the lawsuits dismissed, whereas the filmmaker argued it was like forcing a reporter to give up his sources. (2) Just a few months ago, we wrote about how a judge in NY gave an incredible ruling, giving Chevron access to nine years' worth of Americans' email metadata, as they went in search of details about those who have fought the company concerning the case. (3) Even more recently, we wrote about how the whole "corporate sovereignty" concept -- better known as the boring-sounding (but extremely important) "investor state dispute settlement" -- was being used to try to kill off the $18 billion judgment against Chevron by the Ecuadorian courts.
Second, there's the strange case of Spanish "anti-piracy" firm Ares Rights, which didn't actually seem that interested in "anti-piracy" but in out-and-out censorship via copyright fraud on behalf of various Latin American countries. Ares Rights (correctly) realized that copyright notice-and-takedown provisions were a de facto censorship tool, and has used that to the maximum advantage possible, regularly issuing highly questionable copyright takedown claims to take down all sorts of content that might embarrass the governments of Ecuador or Argentina, even if they have no legitimate copyright interest in the material.
Now, however, Adam Steinbaugh alerts us to the news that Chevron itself has posted a blog post on a blog the company has dedicated entirely to the Ecuador lawsuit (yes, they have an entire blog on the topic) in which the company explains how Ares Rights has begun issuing a similar series of completely bogus takedowns on Chevron's own videos.
You may have noticed that our videos on The Amazon Post are currently down. In late November, Ares Rights, a firm based in Spain that claims to be “devoted entirely to the defense of rights on the Internet,” filed copyright infringement claims against videos legitimately posted to YouTube by Chevron.
Chevron also chides Ecuador for its recent attempts to "rebrand" itself as the "home of internet freedom" at a time when it's doing plenty of things that suggest it is not a fan of internet freedom at all
Chevron claims that it's working to get those videos back up, and details past abuses of copyright law for the sake of censorship by Ares Rights. No matter what you might think of Chevron, it's difficult not to think that, if the company decided to pursue Ares Rights with a DMCA 512(f) claim of misrepresenting the copyrights and seeking sanctions, the case could suddenly get very interesting. It would certainly be the most money ever behind establishing a 512(f) violation, and it would be nice to get a good ruling on that front in a case where the actions are especially blatant, obvious and censorious.
7 Comments | Leave a Comment..
Posted on Techdirt - 13 December 2013 @ 9:14am
We've been covering the various lawsuits by broadcasters against Aereo for some time now. So far, Aereo has won three times to a big fat zero by the broadcasters. The broadcasters appealed to the Supreme Court. Ordinarily, in a situation like this, it's pretty standard for the other side to argue to the Supreme Court why it should not hear the case, because they don't want to mess with the lower court rulings that went in their favor. But... in a somewhat bold move that suggests a fair bit of confidence in their position, Aereo has actually said it agrees that the Supreme Court should hear the case now -- risking the possibility of the Supreme Court overturning the good appeals court ruling in the 2nd circuit.
While it's an unusual move, there are a few good reasons for it. The first, as Aereo notes in its brief, is the broadcasters have made it abundantly clear that they're going to try to sue Aereo in any jurisdiction it launches service in, hoping to both bleed the company dry of funds and, the broadcasters hope, to find some court somewhere that will rule against Aereo. Getting the case to the Supreme Court now could effectively kill that strategy for the broadcasters. Second, and somewhat more troubling, is that the broadcasters have also been suing wacky billionaire Alki David who claims to have built a similar system as Aereo, though there are significant doubts about that in reality. In the cases against Alki David's company -- whose name has changed from FilmOn (originally) to AereoKiller (subtle) to BarryDriller (aimed at Aereo investor Barry Diller) and then back to FilmOn again -- the broadcasters have been winning. Aereo built its business carefully, with an aim towards following the law very specifically, and has a legal team that understands the issues. David? His response to yet another legal loss was to tell the court to kiss his ass.
Even if it were true that they were doing the same thing, the fact that David doesn't seem to know how to actually present a decent case is simply bad for everyone, because, even if they try not to, judges can't help but be influenced by such activities. Getting the Supreme Court to take on this case now rather than waiting until there's some sort of circuit split between an Aereo case and a FilmOn case hopefully leaves David's ridiculous antics out of the fight, and lets everyone focus on the core copyright issues at hand.
There is, of course, no guarantee that the Supreme Court grants cert to hear the case. But having both parties asking for the same thing is somewhat unusual, and given the issues at play, it makes it somewhat more likely that they'll be willing to check it out.
Read More | 51 Comments | Leave a Comment..
Posted on Techdirt - 12 December 2013 @ 11:42pm
We recently wrote about the ridiculous performance put on by the UK Parliament in quizzing the editor of the Guardian, Alan Rusbridger, concerning the legality of reporting on the Snowden leaks. Now, it appears that the same committee sought to hold a hearing with the head of the British MI5 intelligence agency, Andrew Parker, in order to see if he could back up the claims that the Guardian's reporting had put UK citizens in danger. However, that's not happening. UK officials won't let Parker testify in front of the same committee. Why? Because.
The home secretary, Theresa May, told the home affairs committee chairman, Keith Vaz, that she had rejected the request for the spy chief to give evidence because his appearance would "duplicate" the existing oversight provided by the prime ministerially appointed intelligence and security committee.
And, indeed, it is true that the intelligence and security committee held a hearing
on the topic not so long ago -- but, like the Congressional counterparts, it was almost entirely softballs allowing them to spew rhetoric, rather than answer serious questions concerning the intelligence community.
Even worse, it appears that the UK leadership is working extra hard to keep trying to pass a hot potato to make sure no one has to testify on this particular issue:
A similar request for Kim Darroch, the national security adviser, to give evidence to the committee's inquiry into counter-terrorism was also rejected in a letter from David Cameron. He said "it was not a good idea" because Darroch's role focused on providing private advice to him and the national security council and his appearance would "set a difficult precedent".
The prime minister said it should be left to the home secretary to give evidence to the MPs on their concerns about counter-terrorism and the Guardian's disclosures of mass digital surveillance by GCHQ and the US national security agency.
The decision prompted a furious reaction from Vaz, who said: "The prime minister has suggested that the home secretary should come before us to answer our questions and Theresa May is suggesting that it is a matter for the intelligence and security committee. We cannot play pass the parcel on the issue of accountability on these important issues.
While the US process has been something of a joke, at least Congress has been able to get James Clapper, Keith Alexander and others out to testify a bunch of times on these issues. Some in the UK, however, would apparently like to sweep the whole issue under the rug.
9 Comments | Leave a Comment..
Posted on Techdirt - 12 December 2013 @ 10:56am
Senator Ed Markey has been very interested in just how often law enforcement requests information from telcos since back when he was in the other house of Congress, sending letters to the major telcos and releasing the details of their responses. There are good breakdowns of the total number of requests from the various telcos (and, damn, it's a lot) over at Forbes and PrivacySOS.
However, I wanted to focus in on just one element of the responses, from wireless carrier Cricket. One of the questions asked was how much money the company received in response to law enforcement requests. There is some reasonable debate over these fees for a variety of reasons. At one end of the spectrum, you can reasonably argue that if the government comes in and demands work from a private company, they ought to compensate them for the time -- and indeed, that's what the law allows (it says that such payments are to cover costs, not profit). On the other side, though, it seems... wrong for the government to pay telcos with taxpayer money to violate our privacy. Also, it raises the specter of companies profiting from coughing up our info to the government, and leads some to argue that the telcos do it willingly to make money. To be honest, it's such a drop in the bucket compared to other revenue streams, I'm not sure it really matters that much.
However, now it turns out that the government is really bad about paying -- at least according to Cricket. In answering the question about the money, Cricket noted that it doesn't make much, but the government often just ignores its invoices:
Pursuant to 18 U.S.C. § 2706 Cricket is entitled to reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing information in request to legal process received from law enforcement. For real-time requests for surveillance, Cricket is also entitled to reasonable reimbursement pursuant to 18 U.S.C 2518(4) for "reasonable expenses incurred in providing such facilities or assistance" in implementing Title III orders. Cricket is not entitled to, and does not make any profit on services rendered to law enforcement. Further, Cricket is frequently not paid on the invoices it submits to law enforcement. Cricket's fee schedule has not changed since the last response.
This is the first time I've seen that suggested anywhere. As awful as it may sound to see the federal government potentially paying companies to violate our privacy, it somehow seems even worse
to promise to pay them, and then stiff them.
Read More | 17 Comments | Leave a Comment..
Posted on Techdirt - 12 December 2013 @ 9:58am
Last week, there had been some rumors that YouTube was changing its policies around so-called "let's play" videos, with some arguing that "Google was implementing SOPA" when it came to let's play videos -- and that all videos would have to be previewed first to make sure there was no use of copyright-covered content. That seemed like a clear exaggeration, but over the past few days there have been numerous reports from a variety of different sources about how many of the biggest video game channels on YouTube were suddenly getting inundated with copyright claims, many of which people felt were bogus.
So what's happened? Well, it's not that YouTube "implemented SOPA." Rather it appears to be a combination of pushing out its ContentID "scanning" program to channels that are listed as affiliates to so-called "MCNs" (Multi-channel Networks). MCNs are effectively "collections" of independent YouTube channels, banding together for certain advantages, such as cross-promotion and ad sales across all videos. While most people are familiar with ContentID, as far as I can tell (and despite repeated attempts to speak to multiple people, no one seems interested in explaining the details), it appears that ContentID generally works on newly uploaded videos, whereas going back and scanning existing videos is more targeted. And, it's that back scanning that has been "enabled" here. In other words, if those videos had been uploaded very recently, they might have been hit with the same ContentID claim, but these were "back catalog" videos in many cases, which sort of grandfathered them in. That explains the sudden influx. Going back over all those old videos has turned up a bunch of matches.
Then there's a separate issue: which is that many people claim that the claims are completely bogus. Even though they're on let's play videos, they're not coming from the video game companies, but other third parties. In fact, the big video game companies, like Ubisoft, Capcom and Blizzard say they have no problem with let's play videos and are actually trying to help those impacted in figuring out what to do.
This move is almost certainly a result of the National Music Publishers Association (NMPA) suing Fullscreen, a big MCN, claiming copyright infringement. There are some generally interesting legal questions about whether or not an MCN is actually liable for any infringement by an independent YouTube producer, but some of these MCNs have grown to be quite large, and the publishers want money. YouTube is likely trying to clean up the videos associated with MCNs in one big move to avoid any future issues.
What that means, however, is that it's likely one of the reasons that people aren't recognizing the names making the copyright claims is that the matches aren't on the game play, but rather the music either in the video games themselves (likely in many cases) or that video makers add to their videos in general. To their credit, it appears that many of the gaming companies are actually helping video creators clear that music.
The whole thing is a bit of a mess, but not as crazy as it first appeared. And it's certainly not a case of "SOPAfying" YouTube videos. It's just extending the ContentID scanning to those channels to try to clean out problems and, hopefully, avoid future lawsuits against those MCNs.
That said, YouTube's communications over this have been dismal and have greatly contributed to the problem. The company has put out the identical statement to everyone who's asked (including us):
We recently enabled Content ID scanning on channels identified as affiliates of MCNs. This has resulted in new copyright claims for some users, based on policies set by the relevant content owners. As ever, channel owners can easily dispute Content ID claims if they believe those claims are invalid.
That's... somewhat useless. It doesn't address the reasons or the concerns of the video makers, and has many scared. That is not
the best way to explain the situation, and only lends credence to the exaggerated claims that YouTube is helping to kill off let's play videos, when that's not the case at all. It also presupposes an extraordinary level of knowledge that most people don't have of Content ID, copyright, MCNs, licensing, publishing and more. It's basically the opposite of providing the information that video makers actually need -- leaving them freaked out about a massive influx in copyright claims they don't understand. Without a better, more honest and clear explanation, most users are blaming the most obvious party: YouTube.
It appears that YouTube briefed some MCNs on the basics of this change, which is why those rumors came out last week, as the MCNs tried to explain the issue to the affiliates -- but generally did so badly, because this stuff is complicated enough as is, and then you add a game of legal telephone where the people passing on the details don't really understand the issues either. YouTube could have done a much, much, much better job laying out the details of what it was doing and why (and even how that actually should help
MCNs by avoiding lawsuits like the NMPA's. But instead, it's got a ton of people freaked out and its communications to those people are almost non-existent other than the cryptic statement which, while accurate, fails to portray the full situation.
54 Comments | Leave a Comment..
Posted on Techdirt - 12 December 2013 @ 8:59am
I cannot say enough good things about Ryan Lizza's comprehensive article about the NSA's surveillance programs and the legal mess and political fights they've created. There's nothing particularly new in the article, but it does an astoundingly good job putting everything that we've learned into context. Even as someone who's been following all of this very closely, it was still a bit of a jumbled puzzle in my mind, but Lizza's piece took all of it and laid out the entire picture. It goes through all of the details of how and why the NSA began the program, its regular and repeated (often egregious) abuses, and the questionable legal defenses to protect the program. It goes into great detail on Senator Ron Wyden's long fight against these programs and in favor of civil liberties and the Constitution. It details how and why President Obama flip-flopped from his position as Senator and kept the programs, despite multiple opportunities to dump them. Even crazier, it discusses how a proposal Obama made as Senator might have stopped these programs years ago:
Even without a full picture of the programs, two senators who were not on the Intelligence Committee became intense critics of N.S.A. domestic surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA Today article appeared, Biden said it was frightening to learn that the government was collecting telephone records. “I don’t have to listen to your phone calls to know what you’re doing,” he told CBS News. “If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive.”
Obama’s objections to domestic surveillance stretched back even further. In 2003, as a Senate candidate, he called the Patriot Act “shoddy and dangerous.” And at the 2004 Democratic Convention, in the speech that effectively launched his eventual campaign for President, he took aim at the “library records” provision of the law. “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states,” he declared. In 2005, when he arrived in Washington, Obama became one of Wyden’s new allies in his attempts to reform the law. The Patriot Act was up for reauthorization, and, at Wyden’s urging, the Senate was trying to scale back the “library records” section. One of the first bills that Obama co-sponsored, the Security and Freedom Enhancement Act, would have required that the government present “specific and articulable facts” if it wanted a court order for records, a much higher standard than the existing one.
Obama and several other senators, including John Kerry, now the Secretary of State, and Chuck Hagel, the current Secretary of Defense, laid out their legal case against the provision in a letter to colleagues on December 14, 2005. The government could “obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation,” they wrote. It allowed “government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.” The following day, on the Senate floor, Obama said that the provision “seriously jeopardizes the rights of all Americans and the ideals America stands for.”
The Bush White House fought Obama’s changes, but offered a few minor concessions. Most notably, a business that received a demand for records could challenge in court a nondisclosure agreement that accompanied the demand. That was enough to placate some Democrats, including Obama. Wyden objected that the change did nothing to address Obama’s concerns, but the reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden, eight other Democrats, and one Independent voted against it; Obama and Biden voted for it. Bush signed the law on March 9th.
Wyden later learned that, while he and Obama were fighting to curtail Section 215, the N.S.A.’s lawyers were secretly arguing before the FISA court that the provision should allow the N.S.A. to legally collect the phone records of all Americans. The lawyers, encouraged by their success in retroactively legalizing the Internet-metadata program, believed that they could persuade the FISA court to force phone companies to regularly hand over their entire databases. At the FISA court, there are no lawyers challenging the government’s arguments; all the N.S.A. needed to do was convince a single judge. Had Obama’s language been adopted, the N.S.A.’s case would have collapsed.
It's a long but fascinating article that you owe it to yourself to read, no matter where you stand on these issues. It paints the whole picture that hasn't been clear to many, and highlights just how dysfunctional the oversight has been of the NSA. And, if you weren't already impressed enough by Senator Wyden, the article presents even more reasons to be impressed by him (and depressed that there's only one of him).
On Twitter last week, after the Snowden leaks showing that, yes, as Wyden had been hinting all along, the NSA has been collecting location data
on tons and tons of people, there was a great tweet by Kade Ellis, saying
New rule: when Ron Wyden asks "NSA, do you do this spying?" HE ALREADY KNOWS THE ANSWER AND THE ANSWER IS ALWAYS YES
Unfortunately, as the article details, Wyden very rarely is even allowed to ask these questions, and the intelligence community stonewalls at every opportunity. Senator Dianne Feinstein, who should be managing oversight
of the intelligence community appears to believe her job is rather to defend and support the intelligence community.
Still, the most disappointing aspects of the article really focus on how President Obama and his advisors, many of whom had spoken out against the Patriot Act and various aspects of the program now in place, suddenly changed positions once they were in power, and it was their
power to abuse. The repeated stories of intelligence industry insiders coming up with the flimsiest of reasons why these programs must continue are plenty troubling. However, the fact that no one in the government seems to think that the American public can even be trusted with their basic reasoning and interpretations of the laws of the land is just ridiculous.
Either way, as stated, you owe it to yourself to find some time to read the whole thing -- but prepare to be outraged.
16 Comments | Leave a Comment..
Posted on Techdirt - 12 December 2013 @ 7:45am
A fair amount of attention has been paid to the announcement from Kamala Harris, the attorney general for California, that Kevin Bollaert, the operator of a revenge porn site, and corresponding "pay me to take down the revenge porn" site, has been arrested and charged with a variety of crimes, including extortion. Make no mistake about it: Bollaert is a scumbag and these revenge porn sites -- especially those with the extortionate concept of "pay us to take down those nude photos you never wanted posted in the first place" -- are highly problematic. But... as with all kinds of "highly problematic" activities, it all too often happens that law enforcement's zeal to take down the bad guy means they twist laws in dangerous ways that could have significant consequences for plenty of good sites. That appears to be the case here.
Again, Bollaert is a despicable person. A year ago, Adam Steinbaugh was one of the first to detail the nasty practices of "YouGotPosted" (or "UGotPosted") and the companion site "ChangeMyReputation." However, as Eric Goldman details, there are a bunch of dangerous problems with the charges that Harris filed against Bollaert, mainly in that many of them seem to blame him for the way users use the site -- something that the site is protected from under Section 230:
The other two asserted unlawful purposes are (1) online harassment per Penal Code 653m(b) (criminalizing “repeated contact by means of an electronic communication device”), and (2) the civil tort of public disclosure of private facts (citing a troubling precedent, In Re Rolando S.). Unlike the extortion claim, both allegations depend on the behavior of the website’s users. The complaint doesn’t allege that Bollaert himself made repeated contacts with victims using an electronic communication device, or that Bollaert himself disclosed anyone’s private facts. Instead, the complaint alleges that Bollaert ran a UGC website where users performed unlawful activities. But that’s exactly what UGC websites do: they let users publish content online for both good and evil. If we hold UGC website operators responsible for the fact that their users sometimes commit crimes, then all UGC website operators are criminals.
Fortunately, that’s not the law. In 1996, in 47 USC 230 (Section 230), Congress said that websites aren’t liable for third party content, even if the third party violates state criminal law. From my perspective, based on the allegations in the complaint and arrest warrant, the identity theft charges predicated on harassment and privacy violations appear to be preempted by Section 230
It's no secret that the various state attorneys general, including Harris, would love to wipe out Section 230. So perhaps she sees this as a chance to take a case so emotionally charged that she can get a favorable ruling. That's dangerous, since as Goldman notes, this would effectively wipe out Section 230 for many, many sites that allow user contributed content.
A second problem with the complaint is that it relies on an identity theft
law used against Bollaert. But anyone looking at the situation would know right away that this isn't any kind of identity theft. Again, Goldman explains:
The crime asserted here, Penal Code 530.5(a), has two elements. First, the defendant must willfully obtain personal identifying information. Second, the defendant must use that information for an unlawful purpose.
When applied to actual identity theft, these elements make sense. If I steal your social security number and use it to obtain a credit card that I use to run up fraudulent charges, the two elements are clearly satisfied.
As applied to Bollaert, in contrast, the elements are confusing. (The criminal complaint, as typical for the genre, doesn’t explain how the law applies to the facts). How did Bollaert willfully obtain personal identifying information? He allegedly ran a UGC website where users could submit photos and personal information structured into standardized categories. It seems like this allegation would equally describe how all UGC websites “willfully” obtain content from their users.
The one area where the claim may actually make some
sense is the extortion claim -- as that definitely seems questionable. However, once again, this can run into some problems. For example, you can see a perfectly legitimate service that charges some sort of processing fee to take down content that had been previously posted. Merely charging to remove content, by itself, shouldn't be seen as extortion. Hell, we've recently had comment spammers who apparently got punished by Google's search rankings email us about removing the comment spam they were able to sneak through our spam filters. When I mentioned how silly this was on Twitter, many people suggested that we should charge the spammers to remove their spam comments. That actually seems like a reasonable (if amusing) idea. But would that be extortion? Under the claims against Bollaert, it's possible that such an action would be considered the same thing -- but I doubt most people would think the request to spammers would be extortion (not that we've done it either way).
And that leaves this whole case in a tricky spot. Bollaert's site was a problem. What he was doing was despicable in so many ways it's almost difficult to keep track of them all. But, if the case is allowed against him, it's quite possible that very bad precedents will be set that lead to significant problems for tons of legitimate sites. As Goldman notes, however, there's a good chance it will never get this far. Bollaert almost certainly will take a plea deal, and Harris will get yet another headline about how she's protecting the citizens of California, even if her legal theories might undermine its economy -- and many of the sites that people around the globe enjoy.
Read More | 45 Comments | Leave a Comment..
Posted on Techdirt - 12 December 2013 @ 5:39am
There are two subjects that seem to keep TV execs in complete denial: cord cutting and the demand for a la carte TV packages. Both are very real (and, frankly, the increase in the former is somewhat driven by the latter), but to listen to cable execs it's just not happening. Not happening. La la la la, they can't hear you, not happening. The latest such example is from Chase Carey, CEO of 21st Century Fox, who insists that any such demand "is a farce" which some might see as a slight improvement from that time he called it a "fantasy," but not by much. So why is it "a farce?" Well, because Chase Carey knows better than you what you really want. And you want bundles because they're just that awesome.
"The bundle is still a great proposition for the consumer when you compare it to the a world of $5 lattes and cell phone bills,"
First of all, we've been hearing variations on the "what a good deal compared to the $5 latte" argument in a variety of industries, and it's almost always bogus. It's clearly an apples and oranges comparison here. No one forces you to buy the blueberry muffin, the "adult contemporary" CD, plus three smaller cups of coffee you'll never drink just to get that latte. Also, frankly, the $5 latte is the result of actually giving consumers what they want in a competitive market. The same cannot be said for the TV market. At all.
Here's a general rule of thumb modern businesses: if you're working on giving people what they actually want, that's probably a good thing and bodes well for your business. If, instead, you force them to deal with a bunch of crap they don't want -- and then mock them for suggesting a better product, you're not long for this world.
92 Comments | Leave a Comment..
Posted on Techdirt - 11 December 2013 @ 2:52pm
The NY Times has a somewhat surprising article about how the Hells Angels have basically become rather aggressive trademark bullies, going after pretty much anyone who comes anywhere near their trademarks, complete with an angry looking lawyer named Fritz Clapp who has a red mohawk (but, apparently, is not actually a Hells Angel member, which I guess allows him to avoid a conflict of interest).
Just in the past seven years, the Hells Angels have brought more than a dozen cases in federal court, alleging infringement on apparel, jewelry, posters and yo-yos. The group has also challenged Internet domain names and a Hollywood movie — all for borrowing the motorcycle club’s name and insignias. The defendants have been large, well-known corporations like Toys “R” Us, Alexander McQueen, Amazon, Saks, Zappos, Walt Disney and Marvel Comics. And they have included a rapper’s clothing company, Dillard’s and a teenage girl who was selling embroidered patches on eBay with a design resembling the group’s “Death Head” logo.
While it appears that some of this is about money, it's much more clear that they're just fiercely protective of who's "in" the club. A deposition in one case of Sonny Barger, the head of the Hells Angels, has him discussing how if he sees anyone wearing unofficial Hells Angel clothing, he'll demand it on the spot -- sometimes offering to exchange it for a legitimate one, but also saying that if the person refuses "I'd beat him up and take it."
Of course, the article also details how law enforcement has often considered the Hells Angels an organized crime group, and I could see how that might lead to some problems down the road. A few years ago, we wrote about how, in a case against a different biker group, the Mongols, the US government asked the court to hand over the gang's trademarks, so that they could stop anyone and take away their clothes if they saw them wearing Mongols jackets or shirts. Basically, the government equivalent of what Barger said in his deposition. Imagine what kind of hell would break loose if the government tried to seize the Hells Angels trademarks as well...
17 Comments | Leave a Comment..
Posted on Techdirt - 11 December 2013 @ 11:51am
We've written a few times recently about the importance of ECPA reform, to bring a woefully out of date law into the 21st century. Specifically, we've urged people to sign this White House petition in favor of ECPA reform. That petition closes soon, and it's still a bit short of the 100,00 goal.
Why is this important to you? Because, without it, it's much easier for the government to snoop on your emails without a warrant. What people want is for emails and regular mail to be treated the same, which is simply not the case today.
While this is a separate issue from the NSA stuff, it does matter quite a bit, and this is a chance for there to be a real win that helps protect your privacy. Fighting against this proposal are a variety of government agencies, led by the IRS and the SEC, which have made good use of this loophole
to read emails without getting a warrant. This is not
what the law was intended for at all. It's a loophole based on the outdated law, which was written in 1986, before anyone could comprehend things like web-based email. The IRS and SEC like having this loophole, and they don't want it to go away. In fact, they want it to be made explicit, rather than an accidental loophole of history. That should be a massive affront to folks who believe in the 4th Amendment and the basic concept that a search should require a warrant based upon probable cause.
I know that many people have dismissed the whole concept of White House petitions, and take a rather cynical view of the whole thing. That's a very dangerous approach here, only helping to further the problems:
- Yes, it's true that the White House has ignored certain petitions in the past. It's also true that there are certain issues where the White House doesn't really seem to care what people have to say, it's made up its mind.
- But, that is not always the case, and the White House has used these petitions to take strong positions in the past -- including on things like SOPA and mobile phone unlocking. When accompanied by a strong campaign beyond just the petition, the White House seems open to taking certain issues more seriously. This is one of those.
- By all indications, there are some in the White House who agree that ECPA is out of date and needs to be fixed. There appears to be an internal debate about where the official White House position will be -- whether it's siding with the IRS and SEC -- or with the 4th Amendment rights of the public. Having a ton of signatures from the American public on their side will absolutely help those in the White House who support real and meaningful ECPA reform push back against the agencies.
- This isn't an empty gesture. There are bills in the House and Senate to fix ECPA, close the loopholes and protect your 4th Amendment rights. Getting White House support could finally push those bills over the edge and make them law.
- Sticking with the cynical approach and refusing to sign guarantees failure. Not signing works to the advantage of the IRS and SEC and others who like using this loophole. Even if you're cynical about this, signing the petition at least gives it a chance to influence the debate.
And, yes, I know that outside of the general debate over ECPA, people will look at the NSA situation and argue that it doesn't really matter what the law says. That's not true
. Yes, the NSA issue is a big one that needs to be dealt with, but this is about a loophole that goes way beyond the NSA, and is used and abused by different government and law enforcement agencies. Here's a real chance to push back on that and to score a real victory for privacy. Letting cynicism and apathy dictate your move here guarantees that the forces pushing against your 4th Amendment rights win. So take a chance and sign the petition.
59 Comments | Leave a Comment..
Posted on Techdirt - 11 December 2013 @ 10:51am
Back during the summer, we wrote about how the FBI was increasingly using malware to spy on people (though they apparently tried to avoid using it with technically savvy people to avoid having its capabilities "discovered"). However, the Washington Post has more details on how the FBI uses malware in trying to track down someone, based on court documents -- though it also notes that at least some courts have balked at such techniques, pointing out that they go way too far and probably violate the 4th Amendment.
The FBI has been able to covertly activate a computer’s camera — without triggering the light that lets users know it is recording — for several years, and has used that technique mainly in terrorism cases or the most serious criminal investigations, said Marcus Thomas, former assistant director of the FBI’s Operational Technology Division in Quantico, now on the advisory board of Subsentio, a firm that helps telecommunications carriers comply with federal wiretap statutes.
The FBI’s technology continues to advance as users move away from traditional computers and become more savvy about disguising their locations and identities. “Because of encryption and because targets are increasingly using mobile devices, law enforcement is realizing that more and more they’re going to have to be on the device — or in the cloud,” Thomas said, referring to remote storage services. “There’s the realization out there that they’re going to have to use these types of tools more and more.”
The ability to remotely activate video feeds was among the issues cited in a case in Houston, where federal magistrate Judge Stephen W. Smith rejected a search warrant request from the FBI in April. In that case, first reported by the Wall Street Journal, Smith ruled that the use of such technology in a bank fraud case was “extremely intrusive” and ran the risk of accidentally capturing information of people not under suspicion of any crime.
Smith also said that a magistrate’s court based in Texas lacked jurisdiction to approve a search of a computer whose location was unknown. He wrote that such surveillance software may violate the Fourth Amendment’s limits on unwarranted searches and seizures.
Yet another federal magistrate judge, in Austin, approved the FBI’s request to conduct a “one-time limited search” — not involving the computer’s camera — by sending surveillance software to the e-mail account of a federal fugitive in December 2012.
Still, the report details how the FBI can insert malware in a variety of ways, and that the malware can often do things like turn on your camera without the light turning on. Most reports of malware concerning turning on cameras in the past still had the light go on. It appears that this is all the more reason for people to tape over their cameras. That said, it could be even worse. If they can turn on your camera remotely, they can almost certainly turn on your microphone remotely also. And, of course, with a microphone there is no light in the first place and
you can't just cover it up. Voila, instant wiretaps beyond just phone calls. Seems extreme, but does anyone doubt that the FBI can do this, and likely does do this?
Of course, the Washington Post report also shows that while the FBI may be able to create and install malware like this, it also seems to make an awful lot of mistakes:
Federal magistrate Judge Kathleen M. Tafoya approved the FBI’s search warrant request on Dec. 11, 2012, nearly five months after the first threatening call from Mo. The order gave the FBI two weeks to attempt to activate surveillance software sent to the email@example.com e-mail address. All investigators needed, it seemed, was for Mo to sign on to his account and, almost instantaneously, the software would start reporting information back to Quantico.
The logistical hurdles proved to be even more complex than the legal ones. The first search warrant request botched the Yahoo e-mail address for Mo, mixing up a single letter and prompting the submission of a corrected request. A software update to a program the surveillance software was planning to target, meanwhile, raised fears of a malfunction, forcing the FBI to refashion its malicious software before sending it to Mo’s computer.
The warrant authorizes an “Internet web link” that would download the surveillance software to Mo’s computer when he signed on to his Yahoo account. (Yahoo, when questioned by The Washington Post, issued a statement saying it had no knowledge of the case and did not assist in any way.)
The surveillance software was sent across the Internet on Dec. 14, 2012 — three days after the warrant was issued — but the FBI’s program didn’t function properly, according to a court document submitted in February,
“The program hidden in the link sent to texan.slayer@Ã‚Âyahoo.com never actually executed as designed,” a federal agent reported in a handwritten note to the court.
It looks like this is the typical case of once law enforcement has a tool it's looking to use it more and more, even as it clearly has not yet worked out the kinks -- and there's been no real chance for a comprehensive look at whether or not the use of such tools is legal, beyond what individual judges are deciding on a case by case basis.
Of course, just the fact that the FBI is able to turn on cameras and microphones without letting someone know has some pretty serious consequences. Jon Schwarz pointed out the basic similarities to 1984
about what happens when the government can magically spy on just about anyone without you knowing about it. Making people live in fear is not what "freedom" is about, now is it?
Raise your hands for those who expect that this technology won't be abused.
21 Comments | Leave a Comment..
Posted on Techdirt - 11 December 2013 @ 7:38am
Thought the GoldieBlox vs Beastie Boys fight was over? Nope. While Goldieblox had posted a blog post effectively conceding that it would drop the lawsuit and stop using the song, it appears that they made no move to actually drop the lawsuit (and given how quickly they filed the original lawsuit, it would seem that they could have dismissed it equally quickly). So, now the Beastie Boys have filed their response and countersued on a variety of theories.
Now, I know that many people who initially sided with Goldieblox "switched sides," arguing that this was all a publicity stunt by the company. I think there are two separate issues: whether you like this as a publicity stunt and whether or not the use of the song was infringing. Unfortunately, many people are conflating the two. I agree that it's crass and quite lame to use the legal system as a PR tool, and it certainly doesn't reflect positively on Goldieblox as a company. It's pretty clear they were itching for a legal fight and probably pulled the trigger on filing for declaratory judgment too quickly (though, contrary to the claims of some, filing for declaratory judgment when someone suggests you infringed on their rights is a fairly common practice, and there are plenty of good reasons to do so). But I think that's a separate issue from whether or not the use of the song was infringing -- and it's very important to keep the two issues distinct in thinking about the legal issues here.
Given a variety of factors it's not at all surprising that the Beastie Boys have countersued. They were clearly angry about the use of the song (since they have made it explicit they don't like their music used in advertising) and about how the whole situation went down with the declaratory judgment request being filed so quickly, after their lawyers had sent a basic inquiry. That said, it's still disappointing to see the Beastie Boys decide to ramp up the legal effort here, and it still seems like their case is not a strong one. We've already discussed how the Goldieblox use can be fair use, and that there are multiple legal precedents that support that position. The Beastie Boys counter that this is not fair use at all. If this doesn't get settled (and I'd bet good money that it does get settled), a ton of arguments will get thrown back and forth on this point. I can make what I believe is a very strong argument that this is clearly fair use, while others can counter with arguments why it's not. As with so many fair use cases, unfortunately, the end result is often the emotional decision a judge makes about whether it "feels" like fair use, and then works backwards to make the fair use factors fit the preconceived idea. It's a bit of a crapshoot, even as I think it should clearly be fair use.
The Beastie Boys don't stop there however, adding trademark infringement, unfair competition and publicity rights claims to their counterattack. Frankly, all of these seem incredibly weak. It is true that the original Goldieblox video did put "The Beastie Boys" in the title of the video, which some have suggested may have lead to confusion over whether or not the Beastie Boys supported the campaign. This is mainly the basis for most of these additional claims, but it seems rather weak. There's no denying that the song was a take-off on The Beastie Boys' song "Girls." The question is whether or not it was infringing and whether that take-off is a parody. Stating accurately what the take-off is based on isn't trademark infringement, unfair competition or a violation of the band's publicity rights, as it didn't suggest support or endorsement by the band. It just, accurately, noted that the song was a Beastie Boys song. If the use of the song was fair use, then it's perfectly reasonable, as well, to highlight where the song was from.
Two other interesting points from the lawsuit. First, the Beastie Boys highlight that Goldieblox had created ads doing similar take-off parodies (though, obviously they don't call it that) on other popular songs. But, again, if they are fair use then that doesn't matter. Making the case that this is a pattern of activity only makes a difference if it's not fair use. Second, the Beastie Boys are not messing around when it comes to the remedies sought. Not only do they want an injunction, but they're also asking for an "accounting" of how much Goldieblox made as a result of this campaign, and using that to argue for actual damages from Goldieblox.
We talk a lot about "statutory damages" in copyright law, because that's what most copyright holders seek, in part because they claim it would be too difficult to figure out "actual damages," but mostly because the statutory damages numbers are insanely high (up to $150,000 per infringement). Here, however, it appears that the Beastie Boys and their lawyers smell blood in the water, and recognize that if they can convince the court that the money Goldieblox made from people buying its products after seeing the ad are a form of "damage" to the Beastie Boys, they could potentially collect significantly more money -- all of which they are arguing should be handed over to the band (while reserving the right to go for statutory damages if the end result of that is more):
For an award of the Beastie Boys Parties’ actual damages and lost profits they have
sustained as a result of GoldieBlox’s unlawful acts of copyright infringement and to recover from
GoldieBlox the gains, profits, and advantages GoldieBlox has obtained as a result of the wrongful
conduct alleged herein, in an amount to be determined at trial, or, at their election, an award of
This seems fairly extreme again. Even if we accept that this was a giant publicity stunt, and even if it drove a bunch of sales, to argue that all of the gains and profits belong to the band is pretty crazy. People didn't buy the toys because of the music. It may have helped draw attention to the toys, but it was the toys themselves that people were buying (and let's leave out the separate debate over whether or not Goldieblox's toys are actually any good -- that's an irrelevant tangent here).
In the end, it can reasonably be argued that Goldieblox poked the Beastie Boys with a legal stick as part of a publicity campaign, which is increasingly looking like a major strategic miscalculation (perhaps both on the PR side, since there's been so much backlash, and now on the legal side). The Beastie Boys have now hit back hard. This isn't surprising.
Still, even if you think that Goldieblox's actions are reprehensible from the stunt side, if you believe in the importance of fair use, it's disappointing to see the Beastie Boys make this move. As we've noted, the band itself relied on fair use for quite a bit of their own work, and a ruling in this case in their favor would tragically reduce fair use and limit the ability to parody, something that would truly be a loss for culture and society.
Read More | 188 Comments | Leave a Comment..
Posted on Techdirt - 11 December 2013 @ 3:33am
The latest Washington Post story from the Snowden leaks highlights how the NSA was able to effectively piggyback on Google's ad-tracking cookies to track someone's online activities and to "enable remote exploitation" (the details of that exploitation are not revealed, but there are a few ways that would be possible).
It's important to note, first off, that it does not appear that that the NSA is doing this in any "bulk" sense. Rather it appears to be accessing this and other data via more specific orders. That is, rather than going through everyone's surfing habits, it's using this particular "trick" when it's looking for someone (or something) specific, and likely getting a FISA court order to do so.
Still, this should raise very
There is value in cookies and being able to track certain user information, but the implementation has been done in a manner that makes it way too easy to let the NSA piggyback on the results.
Image courtesy of Parker Higgins.
There are solutions -- though they may not be easy. Prof. Ed Felten has a good discussion about how commercial websites can still track users without letting the NSA piggyback on their work
: by extending HTTPS to more or less everything they do:
An approach that does work is for the tracking entity to use https, the secure web protocol, for its communication with the user’s computer. This ensures that the unique ID that is transmitted is protected by encryption in a way that doesn’t leak to an eavesdropper any information about which connections are to the same user. Implementing https on a larger site is not as easy as it should be, but it seems to be the price of surveillance-proof tracking.
For what it's worth "not as easy as it should be" would be considered by some to be something of an understatement. It's not easy, period. But it's becoming increasingly clear that it's something that probably needs to be done. Eight giant internet companies earlier this week took a strong stand
on reforming surveillance. To show that they're serious about this, moving to an all HTTPS world would be a very clear step that they're not just saying things, but actually doing
things to protect their users' privacy from an overreaching NSA.
Felten also notes another alternative, which would be storing everything on the client side:
Another approach to protecting users is to switch to a method that holds all of the stored information on the client side, that is, in the user’s browser. The idea is that rather than having the server accumulate a record of the user’s activities (or some kind of preference profile based on those activities), you would instead have the user’s browser store the same information for you. This approach is taken by some of the privacy-preserving behavioral advertising systems that have been proposed. If information is accumulated on the user’s own computer, there doesn’t need to be a unique identifier that is sent across the Internet every time the user accesses your site. Instead, you can send encrypted data only at the times you need it. This requires more aggressive re-engineering of an ad or analytics service, but it provides additional benefits to the user in terms of privacy and transparency.
As he notes, there are significant challenges there as well, and potential side effects in the way certain things would work, but it is also an approach worth exploring.
Either way, if companies are serious about protecting their users privacy, looking into ways to protect cookie data and stop the NSA cookie monster would be a good start.
28 Comments | Leave a Comment..
Posted on Techdirt - 10 December 2013 @ 7:57pm
Back in October, we wrote about the Third Circuit appeals court ruling that attaching a GPS device to someone's car required a warrant. While the Justice Department is now challenging the part of that decision which said that the evidence obtained via the warrantless GPS use must be sustained (the government is arguing for a "good faith exception" to let it use the information under the belief that it was collected legally -- basically saying if they knew it required a warrant they would have gotten one), it has decided to not challenge the larger point that a warrant is needed to attach a GPS device to a car. That's good news, but it's only a little bit of good news.
The government does say that it "respectfully disagrees with the Court's requirement of a warrant to install and use a GPS device" but isn't seeking a review of that ruling. That, most likely, means that it's just waiting for another court to rule on the matter in a different circuit (and hoping for a better outcome) and can pit those two circuits against each other in a Supreme Court review. So, basically, it's just avoiding the issue for the time being.
Read More | 16 Comments | Leave a Comment..
Posted on Innovation - 10 December 2013 @ 4:03pm
Here's a story which hits on so many different points that we're interested in. There's a new effort to crowdsource a "prize" for whoever can release an open source jailbreak for iOS7. First off, we've been big fans of "innovation prizes" like the X Prize. We're also big fans of crowdfunding -- so here's an example of combining both of those: crowdfunding an innovation prize -- which has already reached about $6,500 despite no publicity (yet). Next, the prize is for another thing that we think is of utmost importance: the freedom to tinker with products you bought. The locked down nature of the iPhone remains one of the shames of modern technology. Encouraging a true, open source jailbreak is important in opening up the technology -- for a variety of important reasons (including a huge one that inspired this project, as will be explained below). The project also has a four person team to judge which solution will qualify for the prize, including some folks you might recognize: Cory Doctorow, Kyle Wiens (of iFixit) and Gabreilla Coleman (professor who studies hacktivism, Anonymous and has posted here).
But perhaps the most interesting (if unfortunate) point in this story is the reason for the project in the first place. The fourth judge is Chris Maury, who inspired the creation of this project in the first place. Maury has Stargardt's Macular Degeneration, a genetic condition that has taken him from having 20/20 vision just a few years ago to rapidly losing his vision, to the point that he will eventually be legally blind (already he can no longer drive). He would like to be able to actually use his iPhone but much of the software that makes the phone usable with his vision isn't available in the iTunes App Store. Thus, he needs to jailbreak the phone in order to use it.
This is really the most shameful part of locked down systems. In the past, we've talked about how the short-sighted view of people who want to lock out certain types of applications almost resulted in a young girl being unable to communicate, and here we have a situation where someone with a severe visual impairment can't get everything possible out of the devices he's purchased. What kind of world are we living in that we think it's okay to have this as "standard operating procedures" for the electronics we use every day?
Thankfully, what giant companies try to lock up, creativity can hopefully unlock. And, in this case, we've got layer upon layer of creative innovations to try to get around a bad situation. While it's unfortunate that such a project is even necessary in the first place, it's inspiring to see this kind of creativity pop up to try to solve the problem. Go check out the project. If you want to contribute to the prize, you can do so there (and, yes, they accept Bitcoin, too), or if you feel like creating an open source jailbreak for iOS7 and collecting the prize (or just basking in the wonders of doing something good), check it out as well.
20 Comments | Leave a Comment..
Posted on Techdirt - 10 December 2013 @ 1:08pm
We've written a few times now about how a producer for On the Media, Sarah Abdurrahman and many of her friends and family (all of whom are American citizens), were detained by US customs and border patrol (CBP) officials at the US Canadian border for many hours with no explanation. Their treatment was horrific, and worse, no one at DHS seems to have any interest in explaining what happened or why. On the Media then created a cool crowdsourcing tool asking people to call their Congressional representatives to try to get answers.
The latest report involves some of the people who have called and what sort of response they got back. Not surprisingly, so far, not much has come of the effort, as no one in Congress seems particularly interested. However, I did want to call out one particular interaction, involving Rep. Pete King's "new media guy" who a caller reached. The caller, Philip Elmer-Dewitt, explained Sarah's story, and King's staff apparently got confrontational. According to the caller:
And he said:
"Why should I believe this just because someone reported it?"
And I kinda got my back up and said:
"So, are you calling the NPR producer a liar?"
And he said:
"Oh! So you got your 'gotcha moment' now!"
And he was a little hostile, so I backed off a bit and said:
"No, it's a journalistic experiment. We're trying to elicit information. We're trying to learn what the policy is."
But, basically his answer was that Sarah should call her representative and that's all there was to it.
Of course, it's worth remembering that Rep. Pete King famously was very supportive of IRA terrorists
, but now argues that Ed Snowden and Glenn Greenwald are "traitors" and even that Greenwald should be prosecuted
(based on completely false claims that King appears to have made up himself). He's also claimed that calling the NSA's activities "snooping" or "spying" amounts to slander
. Now, apparently, his staff are getting confrontational with constituents asking rather basic questions about how DHS is treating American citizens at the border. Makes you wonder whom Rep. Peter King actually thinks he's representing.
32 Comments | Leave a Comment..
Posted on Techdirt - 10 December 2013 @ 12:08pm
While TPP negotiators had hoped to finish off the negotiations in Singapore over the past few days, it appears that did not happen, though they claim to have made substantial progress and will meet again next month. From the reports of people there, the negotiators made sure that public interest groups were excluded from even the press briefing about the negotiations, which should tell you all you need to know about what the negotiators think of the public. But, in case you weren't sure, the USTR, Michael Froman, has finally explained why the TPP negotiating positions must be kept secret. Apparently, all of us in the public, are too fucking stupid to understand the important work that he's doing, and we might "misunderstand" it. Therefore, we peons must be kept in the dark, while important people like himself negotiate on our behalf. According to Jamie Love:
Froman said if the text was public, people would misunderstand "negotiating positions."
In other words, the USTR is not a fan of democracy.
If you think the public is too stupid to understand the public policy positions you're negotiating for, then you shouldn't be in that job.
61 Comments | Leave a Comment..
Posted on Techdirt - 10 December 2013 @ 9:02am
The Princess Bride remains quite the iconic book and movie for tons of people who grew up in the 1970s and 1980s (and, hopefully, other ages as well... but I can only speak from experience). A huge number of lines have lived on from that movie and become mainstays in popular culture. And like all sorts of great culture, it has inspired plenty of additional creativity around the original as well. A guy named Joe Brack created a one-man show called My Princess Bride, in which he intersperses events and stories from his own life with elements of the book and movie:
While Brack does snippets of re-enactments, he intersperses such scenes with commentary. For example, during a solo parody of the iconic swordfight between Inigo Montoya and the man in black, Brack explains some of the history behind the obscure names of fencers that are thrown around in the dialogue.
But there is also plenty of personal material in the show: At one point Brack talks about the death of his grandmother in 2012.
And, guess what? Just as the one man show was about to come back, someone stepped in with a cease and desist letter
, saying that the show infringed. While Brack won't say who sent the cease and desist, there's a pretty short list of whom it might be.
Brack's partner in putting on the show, Matty Griffiths, says they had explored the copyright issues before putting on the show and were reasonably confident that it was fair use -- and it would appear that they have a very strong fair use argument here. But... because of the stupid way
our fair use laws work, the only way to definitively know if it's fair use is to spend megabucks on a lawsuit. So, instead, this bit of creativity that people seemed to enjoy... has been shut down. While the two guys seem willing to test it, the theater where they were going to put on the show has bailed out, citing the potential liability.
Yet another bit of creativity completely stomped out thanks to copyright.
Not only that, but it's turning fans of the original into... not fans:
“I’m gutted,” Brack says. “The past two days have been so hard. And whenever I’ve been bummed out and sad, I watch ‘The Princess Bride,’ and I can’t even do that now.”
He owns three copies of the book, and he’s reversed them in his bookcase to hide the titles.
“It feels like I’ve lost a friend,” he says.
Isn't copyright supposed to inspire creativity, rather than stomp it out?
137 Comments | Leave a Comment..
Posted on Techdirt - 10 December 2013 @ 7:48am
Thought it was just officials at UK airports detaining and interrogating journalists? According to a new lawsuit from two NY Times reporters, they were also pulled aside and interrogated by Homeland Security officials multiple times concerning their own reporting efforts. The two reporters, Mac William Bishop and Christopher Chivers were apparently pulled out for special interrogation at JFK.
Among other things, Plaintiffs seek records used or created by DHS employees in respect to the questioning of Plaintiffs at JFK Airport earlier this year. Plaintiffs were subject to segregated questioning by DHS employees at JFK on May 24, 2013, as they prepared to board an international flight for a work assignment as journalists. Subsequently, on June 6, 2013, Mr. Bishop was subjected to further segregated questioning by DHS employees at JFK as he returned to the United States.
Given this, the two journalists filed Freedom of Information Act (FOIA) requests on records pertaining to themselves... and got back absolutely nothing. After playing hot potato with the FOIA requests between different DHS agencies, the reporters basically got back messages saying that there were no records on either.
On September 27, 2013, ICE denied the Bishop Request. ICE reported in a "final response" that the unite had conducted a search and found no responsive documents.
On October 28, 2013, Mr. Bishop appealed ICE's denial. In his appeal letter, Mr. Bishop said it was "inconceivable that DHS has no records pertaining to [him]" as someone who is "a frequent international traveler." He pointed out that on June 6, 2013 he had answered questions for DHS employees in a private room at JFK, and those answers were recorded on a computer.
On November 18, 2013, ICE denied Mr. Bishop's administrative appeal, finding that the agency had done an adequate search.
As for the TSA, that unit of DHS informed Mr. Bishop by letter on July 31, 2013 that his "request was too broad in scope." TSA required more information before processing the request.
On August 9, 2013, Mr. Bishop, through counsel, responded by letter. He restated the initial request and asserted that no legal authority supports the proposition that TSA could simply refuse to do the search.
More than two months later, on October 23, 2013, TSA told Mr. Bishop's counsel that it could not find the August 9, 2013 letter. Counsel subsequently provided a new copy of the letter and additional information about the June 6, 2013 questioning at JFK. There has been no further response from TSA.
Remember how Eric Holder insisted that the feds weren't
going to keep intimidating journalists? Yeah, right.
Read More | 44 Comments | Leave a Comment..
More posts from Mike Masnick >>