Posted on Techdirt - 24 April 2014 @ 1:53pm
Over the past few months, we've covered the bizarre trial of Rahinah Ibrahim, who was incorrectly placed on the no fly list, leading to a series of other problems, meaning that the Stanford PhD grad student was unable to fly back into the US for the past ten years. When the unredacted ruling in that case was finally released last week, we discovered that Ibrahim is still in the "terrorist screening database" (TSDB), though not on the no fly list, and barred from getting a visa to travel back to the US, even though the US admits she's no threat, because of a "secret exception" to the "reasonable suspicion" standard. And, given that the exception is secret, we may never know what it is.
However, perhaps it has something to do with "when the FBI wants to intimidate you into becoming an informant," as a new lawsuit suggests. (And because none of the news sources reporting on this seemed willing to put the actual legal filing online, here it is.) The lawsuit was filed on behalf of four different men, who all had similar experiences with the FBI threatening to put them on the no fly list if they didn't become informants, reporting back on what others in their Muslim communities were up to -- and then finding themselves on the list after refusing.
Plaintiff Muhammad Tanvir is a lawful permanent resident of the United States whose
most recent residence in the United States was in Corona, Queens, New York. Mr. Tanvir
is Muslim. Mr. Tanvir was placed on the No Fly List after he declined multiple requests
by FBI agents to serve as an informant in his Muslim community. He declined to do so
because it would have violated his sincerely held religious beliefs. He also felt that he
had no relevant information to share. After he learned that he had been placed on the No
Fly List, he was told to contact the same FBI agents to clear up what he presumed was an
error that led to his placement on the No Fly List. Instead, the FBI agents offered to help
him get off the List—but only in exchange for relaying information about his community.
Mr. Tanvir again refused. Mr. Tanvir does not pose, has never posed, and has never been
accused of posing, a threat to aviation safety.
Plaintiff Jameel Algibhah is a United States citizen who resides in the Bronx, New York.
Mr. Algibhah is a Muslim. Mr. Algibhah was placed on the No Fly List after he declined
a request from FBI agents to attend certain mosques, to act “extremist,” and to participate
in online Islamic forums and report back to the FBI agents. After Mr. Algibhah learned
that he was on the No Fly List, the same FBI agents again visited him, telling him that
only they could remove his name from the No Fly List if he agreed to act as an informant.
Mr. Algibhah again exercised his constitutional right to refuse to become an informant
and he remains on the No Fly List. Because of his placement on the No Fly List, Mr.
Algibhah has been unable to visit his wife and three young daughters in Yemen since
2009. Mr. Algibhah does not pose, has never posed, and has never been accused of
posing, a threat to aviation safety....
Plaintiff Naveed Shinwari is a lawful permanent resident of the United States who resides
in West Haven, Connecticut. Mr. Shinwari is a Muslim. Mr. Shinwari was placed or
maintained on the No Fly List after he refused a request from FBI agents to be an
informant on his Muslim community. Subsequently, he was prevented from boarding a
flight to Orlando, Florida, where he had found work. Following his placement on the No
Fly List, the same FBI agents approached Mr. Shinwari, told him they were aware of his
inability to board his flight, and again asked him to work as an informant. Mr. Shinwari
again refused. Because of his placement on the No Fly List, Mr. Shinwari’s work has
been disrupted and he has been unable to visit his wife and family in Afghanistan since
2012. Mr. Shinwari does not pose, has never posed, and has never been accused of
posing, a threat to aviation safety....
Plaintiff Awais Sajjad is a lawful permanent resident of the United States who resides in
Jersey City, New Jersey. Mr. Sajjad is a Muslim. Mr. Sajjad was prevented from flying
because he was on the No Fly List. After he sought to be removed from the List, he was
approached by FBI agents and subjected to extensive interrogation, including a polygraph
test, after which he was asked to work as an informant for the FBI. Mr. Sajjad had no
relevant information to share, so he refused. Because of his placement on the No Fly
List, Mr. Sajjad has been unable to visit his family in Pakistan, including his ailing 93-
year old grandmother, since February 2012. Mr. Sajjad does not pose, has never posed,
and has never been accused of posing, a threat to aviation safety
Note how these are all US citizens or lawful permanent residents. The filing notes that while the FBI has used a number of other threats to turn Muslims into informants -- including threatening their immigration status or trying to prosecute them for minor crimes -- at least in those cases, the victims know what's happening. Since the no fly list is totally opaque, the FBI can abuse it widely, with almost no recourse.
Withholding immigration benefits or
bringing criminal charges against American Muslims can be challenged and resolved
under known legal standards through procedurally adequate administrative or judicial
proceedings. Unlike those situations, the No Fly List operates under unknown standards
and a vague set of criteria with a process that provides no opportunity to learn of the
purported bases for placement on the List or to respond to such claims. This secretive
process is conducted with no impartial determination on the merits, and without regard to
the possibly retaliatory or unduly coercive motives of the field agents who place people
on the No Fly List.
The full filing goes into a lot more detail on the four cases above, showing just how far the FBI is willing to go to try to intimidate people into becoming informants. They're not just asking them to provide information, but often asking them to travel to foreign countries, infiltrate various groups, and send back information. For a whole variety of reasons, the individuals found this to be completely unacceptable, and were subsequently punished by the FBI. The stories are rather heart-wrenching, as these individuals are bullied (sometimes to the point of breaking down and crying), as the FBI threatens all sorts of punishment if they don't do what the FBI wants, which often involves putting themselves in very dangerous positions.
Of course, this is exactly what happens when you allow for secret "lists" like this to proliferate, and give the FBI nearly unlimited power to spy on Americans. I'm assuming that, as in previous no fly list cases, the US government will freak out and claim all sorts of "national security" reasons why the entire case should be dropped. Hopefully, the courts will not allow such games.
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Posted on Techdirt - 24 April 2014 @ 11:47am
A few years ago, we wrote about an insanely aggressive anti-piracy campaign in South Africa, in which the local version of the RIAA (RISA) suggested people "shoot the pirate." That hyperbolic and ultra-aggressive campaign resulted in some actual violence, when RISA sent a group of artists (armed with that slogan) onto the streets to "confront" counterfeit CD sellers. So, perhaps it shouldn't come as a huge surprise to find out that a man in South Africa has been criminally convicted for posting a torrent for a local movie to the Pirate Bay, and given a suspended prison sentence.
There's a reason why most copyright infringement should be handled under civil litigation, rather than criminal. But, apparently authorities down in South Africa are trying a more aggressive path. While the guy had his sentence suspended because he apologized and helped to remove the work from being accessed via the Pirate Bay, it's hard to see how this is even close to a proportionate or reasonable response to someone sharing your movie. Meanwhile, it seems worth noting that up in Nigeria, a massively successful film industry has been built over the past few decades, in part because piracy helped solve the distribution problems the industry faced. Perhaps South Africa might want to think again before throwing fans behind bars for sharing a local film they liked.
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Posted on Techdirt - 24 April 2014 @ 9:47am
Yesterday reports started leaking about how FCC boss Tom Wheeler was getting ready to release his proposal for "new" net neutrality rules, to be voted on in a few weeks. They've now been introduced -- and Wheeler insists that all the whining and hand-wringing from yesterday was wrong. Except that's not true.
These new proposed rules are a response to a court tossing out the FCC's 2010 rules for not actually falling under the FCC's mandate. We pointed out that if the FCC were serious (and it's not), it should be focusing on increasing competition (which it's not). Congress certainly isn't going to do anything. Like previous FCC bosses, Commissioner Tom Wheeler has made it pretty clear that he's too timid to do anything serious, and instead will seek to find some sort of weak middle ground. Because there seems to be a rule that, if you're to become FCC Commissioner, you can't take a solid stand, but instead have to take a weak middle ground position and pretend it's a strong stand.
But what's currently being suggested may actually be worse. Because this opens the door to killing off net neutrality while pretending it's supporting net neutrality. As Stacey Higginbotham points out, even if Tom Wheeler believes this proposal makes sense, it's pretty ridiculous to claim it's net neutrality or about protecting an open internet. Wheeler should step up and admit what he's doing: killing off net neutrality to create a system that lets the big broadband providers double charge -- and then explain why he thinks that's necessary. Pretending this is net neutrality is a joke. Here's the basic proposals:
- That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
That no legal content may be blocked; and
That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.
The key issue is that last one, in which the FCC claims it will still have the ability to stop "commercially unreasonable" activities by broadband providers, while refusing any
attempt to explain what commercially unreasonable means. At the same time, it makes it pretty clear that "commercially reasonable" (again, undefined) rules will be allowed -- and it's likely this means allowing ISPs to create "fast lanes" by which they can charge more, so long as anyone with a lot of cash can also pay more.
This is not net neutrality. Yes, the 2nd rule means that no ISP will get away with the outright banning of access to websites, but no ISP was seriously considering that anyway. This bans a practice no one was going to do, meaning it doesn't ban anything. But by opening up "commercially reasonable" discrimination, it's allowing ISPs to create privileged "fast lanes" by which large internet players can "pay" to have preferred access to users. If you have a fast lane, by definition you also need a slow lane
. So the (reasonable) fear here is that smaller entities, who can't pay for the fast lane, basically start out with degraded service compared to the big guys who can (and will) pay.
That means that services that don't pay up are throttled. By definition.
It's exactly what the big ISPs have wanted all along, which is a system to double charge
big companies, who will now have to pay for both
their own bandwidth and
a portion of your bandwidth. If you think "hey, I already pay for my bandwidth," you're right. And now you'll likely have to pay much more, because the big companies who pay are going to pass the costs on to you. And, you'll have fewer interesting new services because the barriers to entry will be higher. So, the end result is the immensely profitable duopoly of internet service providers get more profitable and you pay more. Big internet companies pay off the broadband providers to stay fast, while startups and innovation are basically more difficult to create, because they're going to have to set aside a huge chunk of money to pay for some of the bandwidth that you're already paying for (and probably not getting anyway).
The Comcasts and AT&T's and Verizons of the world are going to parade up and down about how this will let them invest in better networks and provide better services, but there is absolutely no incentive here for them to actually do so. In fact, they have every incentive in the world to degrade
service in the "slow lane" to make it less useful, driving more companies to need
to pay for the fast lane.
These aren't rules for an open internet or for net neutrality. These are rules to kill that off.
"Commercially reasonable" are the weasel words here that effectively sell out the internet. The old rules were dreadful, and these rules are still just in proposal stages, but Wheeler's first foray into net neutrality is a joke. He's doing the same thing as his predecessor in refusing to stand up and say what he actually means, because he knows that what he's proposing is bad news.
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Posted on Techdirt - 24 April 2014 @ 5:34am
A new study from Strategy Analytics highlights what you almost certainly already know, that no one actually uses the crappy bloatware apps that Samsung puts on its phones. This shouldn't be a surprise at all. But I actually wanted to highlight a different issue I'd noticed recently: which is that not only do people not use the bloatware apps, by making them both default and unintstallable, Samsung pretty guarantees that everyone hates those apps.
Now, I can imagine the execs at various app developers who got all excited when they had a chance to become a default app on a Samsung flagship phone like the S3, S4 or S5. After all, Samsung sells a ton of these phones. So if Samsung approaches you and offers to make you a default, it's got to be hard to say no. Because what they're offering is to put your app in front of many millions of potential users. And given the big hurdle of getting people to even download free apps, that must seem like a huge victory.
Until you realize that everyone hates unnecessary and unwanted bloatware. Beyond the study above showing that no one uses those apps, I recently looked at the Google Play Store reviews of many of the Samsung choices for bloatware. And pretty consistently, the large majority or reviews are about how they don't know why the app is on their phone and they're pissed that they can't delete it. Take, for example, Blurb Checkout, part of Samsung's near-totally-useless "book-making app." People absolutely loathe it almost entirely because it's a bloatware default app. Out of over 22,000 reviews, it has over 16,000 one star reviews. And nearly all of the reviews look like the "highlighted" ones on the page:
Or how about the Lumen Toolbar
? Frankly, I have no idea what it does, but it's there. The aggregate reviews on this aren't quite
as bad as Blurb above, and there do appear to be some people who really do like this toolbar. But the reviews are still filled with angry rants:
I'm sure HP thought it was a great way to jumpstart its mobile printing efforts by having its HP Print Service Plugin
installed as default bloatware on Samsung (and, apparently, on Nexus) devices. Until everyone started yelling about how they want that crap off their phone.
And, of course, none of this even touches on Samsung's own
apps, in which it has weak copies of much better apps out there, such as S Health, S Memo and S Voice -- all of which are stuck on your phone, even though there are much better and much more functional alternatives available in the Play Store and elsewhere. The thing is, all of these apps could be the greatest possible apps in the world, but by making them part of preinstalled bloatware and making it so you can't uninstall them, it's pretty much guaranteeing that people will hate on these apps, making it even worse than just not using them -- they're actively harming the reputations of those apps for folks who might actually like them.
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Posted on Techdirt - 24 April 2014 @ 3:34am
We've talked plenty about the big revolving door between government and big business lately, but there are still some moments that are purely insane that show just how broken the system is. On Wednesday, news broke that former FCC commissioner Meredith Attwell Baker has been named the new CEO of CTIA, the main lobbying organization for mobile phone operators. Baker is no stranger to questionable revolving door moves, seeing as just months after she voted to approve Comcast's merger with NBC Universal, she took a top lobbying job with Comcast. Funny how that works.
But, in this case, it's even more ridiculous because, as Jon Brodkin points out, the current head of the FCC, Tom Wheeler, previously was CEO of CTIA as well. And prior to that he was CEO of NCTA (the cable industry's main lobbying group). And, to top it off, the current head of CTIA is none other than former FCC chair Michael Powell.
If you're keeping score at home, it looks like this:
- Michael Powell: FCC Chair -> NCTA boss
- Meredith Atwell Baker: FCC Commissioner -> Comcast -> CTIA boss
- Tom Wheeler: NCTA boss -> CTIA boss -> FCC Chair
They're playing a game of musical chairs where no chair is ever removed... and they all get fabulously wealthy scratching each others' backs. Even if everyone is being completely sincere in their positions (a big if, but let's assume it for now), the real problem here, again, is that the perception
of rampant corruption is encouraged by this sort of thing, leading the public to seriously distrust the government. When the top two lobbying organizations on these issues are manned by former top officials and the current top FCC official used to run both those organizations, there's a pretty clear implication that it's the public interest that's going to get shafted.
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Posted on Techdirt - 23 April 2014 @ 11:57pm
About six months before Ed Snowden leaked his documents, we had written a post about why Google should encrypt our email, based on a bit of back-and-forth between Julian Sanchez, arguing why Google should encrypt all email, and Ed Felten, who noted it's not as easy as it sounds (though Julian highlighted how none of the problems Felten raises are insurmountable). There are, of course, already ways that you can add PGP encryption to Gmail, with tools like Mailvelope, but it can be a little kludgy, and not exactly foolproof. Still, many have insisted that Google would never go this route, since it would limit the company's ability to target ads based on the contents of email.
However, VentureBeat is reporting that, partly inspired by all of the Snowden revelations, researchers at Google are looking at ways to make encryption much easier within Gmail. While the report suggests that Gmail won't go site-wide end-to-end encryption, anything it does to bring real encryption more into the mainstream would be a good thing -- though it might make the NSA and DOJ freak out. But, as we've seen, well-done crypto does work. The problem is that so much crypto is not particularly well implemented, leading to all sorts of leaks. Still, it's encouraging to hear that Google is working on something, and hopefully it releases something that is both user-friendly and open to some sort of audit to ensure that it's safe.
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Posted on Techdirt - 23 April 2014 @ 7:53pm
In the continuing global legal fight over Megaupload, the company apparently is asking the Hong Kong high court to set aside the restraining order on the company's assets that was put in place over two years ago, following a request from the US Justice Department. Megaupload was always legally based in Hong Kong, even if the company itself was based in New Zealand. Megaupload appears to be claiming that the Hong Kong Justice Department did not properly follow the law in going along with the US DOJ's request. The main issue, which has been debated back in the US, is that, technically, the DOJ cannot serve Megaupload (the company) since it has no US employees or presence. The DOJ can go after foreign individuals, but when it comes to foreign companies, the law is pretty explicit that they can't. While the DOJ is actively seeking to change that law, it doesn't change the basic problem with the original request.
Megaupload is pointing out that the US DOJ's request to the HK DOJ depended on Megaupload being served the criminal summons. But since that hasn't been satisfied, it argues the HK DOJ has no basis for restraining Megaupload's assets:
The order was granted on the basis of an ex parte application by the HK DOJ made at the request of the US DOJ. The grounds for discharge of the order is the failure by the HK DOJ—acting on the basis of information provided by the US DOJ—to fully and frankly disclose in that ex parte application serious legal issues relating to the US DOJ’s inability to serve Megaupload with a criminal summons in accordance with United States federal law. Among other things, the US DOJ failed to explain how it intended to comply with the service of process requirements imposed by the Federal Rules of Criminal Procedure, which, as argued in Megaupload’s application, are an essential prerequisite to initiating any criminal proceedings against Megaupload and cannot be satisfied for a corporation that has no physical presence or subsidiaries in the United States. Megaupload has submitted those filings with its application to the High Court.
Megaupload claims it's seeking to free the assets in order to attempt to regain control
over the leased servers from Carpathia, which the DOJ has been hoping would be destroyed (leading to the destruction of evidence in a criminal case, at the DOJ's urging). While the issue of serving Megaupload is something of a technical snafu, it's one in a rather long line of sloppy lawyering by the DOJ throughout this case.
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Posted on Techdirt - 23 April 2014 @ 10:12am
We mentioned this briefly in our writeup of the oral arguments at the Supreme Court in the Aereo case, but I wanted to focus in on one particularly annoying issue that has come up repeatedly throughout this company's history: the idea that its compliance with the law is actually the company circumventing the law. A perfect example of this is an incredibly ill-informed opinion piece for New York Magazine's Kevin Roose that declares, based on a near total misunderstanding of the case, that the Supreme Court should shut down Aereo because its 10,000 antennas are a cheap "copyright-avoidance gimmick."
But that's simply incorrect. It's actually 100% the opposite. We'll fully admit, as that article does, that the setup of Aereo is simply insane from a technology standpoint. There is no good reason at all to design the technology this way. But the reason they're doing this is not to avoid copyright but to comply with it. If you think that this is insane (and you're right) the answer is not to whine about what Aereo is doing, but to note that it's copyright law that leads to this bizarre result. Don't blame Aereo for following exactly what the law says, and then say it's a "gimmick." Blame the law for forcing Aereo down this path.
Of course, it's one thing for an uninformed magazine columnist to make this argument... but quite another for Supreme Court justices to do so themselves. And tragically, in the oral arguments, a few of them appeared to be coming close to making that kind of argument (though not so ridiculously as the column above). The worst offender was Chief Justice Roberts, who asked:
All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, that's -- you know, lawyers do that.
Note the twisting here. Complying
with the law is now "circumventing legal prohibitions." Justices Ginsburg and Scalia both also asked about whether or not the technology decisions had any technological purpose, or if they were solely about the law (though, at least both questioned if the choices were about "complying" with the law). But the implication that is being raised (and has been explicitly raised by others) is that in setting up this "a Rube Goldberg–like contrivance" (as 2nd Circuit judge Denny Chin called Aereo in his dissent to the company's victory in that court) it means that they're somehow violating the law by meticulously complying with it
And that's a very
dangerous assumption, even by implication.
If that argument is allowed to fly, then it's not a stretch to see how copyright holders might twist lots
of versions of complying
with the law, into infringing on the law
simply by arguing that the form of compliance is somehow "too clever." That would lead to all sorts of dangerous implications -- in which those who are being careful to comply with the law
may suddenly be deemed infringing because of their careful compliance
. Under such a standard, the more carefully you aim to comply with the law, the greater chance you can be accused of "contorting" yourself in a manner that allows copyright holders to argue that your compliance is somehow "less than sincere" as appears to be the main suggestion here.
It's troubling that at least a few of the Supreme Court Justices appear to even be considering such a possibility.
Yes, Aereo's setup is technologically bizarre. But that's because it's doing everything to comply
with copyright law. If you have a problem with it, it's not because the company is breaking the law, it's because the law itself is broken
. It would be a cruel twist of fate for Aereo to lose its case because Supreme Court Justices believed that it had broken the law, because the inevitable results of the broken law itself create a situation where complying with the law looks so bizarre that it appears to be infringement!
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Posted on Techdirt - 23 April 2014 @ 9:05am
The ACLU has jumped into a troubling legal fight, in which it appears that the DOJ has issued gag orders against Twitter and Yahoo concerning grand jury subpoenas that have been sent to both companies. This case is one we mentioned last week where magistrate judge John Facciola asked the two companies to weigh in, as he appears unconvinced that the government's request is sound. However, the whole thing is happening under seal, which the ACLU feels is inappropriate, given the importance of allowing companies to respond freely to such requests, without being gagged.
The ACLU filed a motion last night seeking to represent the public's interest in open court proceedings when the government seeks gag orders on Internet companies. We know about the three cases only because the magistrate judge pushed back on the government, inviting Yahoo and Twitter to weigh in and ordering the government to make its legal arguments public. The government appealed those orders to a district court, where the judge ordered the appeals sealed. The ACLU is now moving to intervene in the district court for the purpose of opening these gag order proceedings to public scrutiny. In a democracy, if your government is going to gag someone from speaking, it should publicly explain why.
The federal government has an awesome array of tools and technologies in its investigative arsenal, and it often goes to great lengths to shield its tactics from outside scrutiny. Not only does this secrecy prevent people from challenging surveillance used against them, but it also means that elected officials can't openly debate the underlying policies, and communities can't discuss their government's actions.
Traditionally, gag order applications are considered ex parte – meaning with only the government's argument on the record before the court. However, Magistrate Judge Facciola noted that the government's request in this case raised controversial legal questions, and so invited Twitter and Yahoo to respond. (In one case, the government withdrew its gag order application after Judge Facciola invited Twitter's participation.) He also ordered the government file public copies of its gag order applications with limited redactions.
It's good to see at least some pushback on the feds' attempt to get information and to silence companies from saying anything about it. But it's still quite troubling that they seem to assume they have near free rein to do so in the first place. Kudos to the ACLU for stepping in as well, and representing the public interest.
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Posted on Techdirt - 23 April 2014 @ 7:47am
We didn't write about this case when it came out because it just seemed so ridiculous, but filmmaker Quentin Tarantino sued Gawker Media earlier this year for linking to a script he had apparently been working on. There had been a bunch of media coverage over the fact that his script for The Hateful Eight leaked, and was being shared around Hollywood, though not online. Gawker then asked anyone if they'd seen a copy, leading to a followup post which included a link to the newly leaked script.
Tarantino argued that by soliciting from the public a copy of the script and then subsequently linking to it, Gawker was guilty of contributory infringement. Thankfully, a federal court that actually understands copyright law has quickly disabused Tarantino of that bizarre interpretation of copyright law, granting Gawker's motion to dismiss. The big problem: at no point anywhere in the process above, did Tarantino's lawyer show how Gawker's actions resulted in anyone infringing on anyone's copyright. That makes it quite hard to pin "contributory infringement" when there's no direct infringement in the first place:
However, nowhere in these paragraphs or anywhere else in the
Complaint does Plaintiff allege a single act of direct infringement committed by any member of the
general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff
merely speculates that some direct infringement must have taken place. For example, Plaintiff’s
Complaint fails to allege the identity of a single third-party infringer, the date, the time, or the
details of a single instance of third-party infringement, or, more importantly, how Defendant
allegedly caused, induced, or materially contributed to the infringement by those third parties
In a footnote, the court further notes that even if Tarantino's lawyers could dredge up some example of direct infringement based on someone reading the script, the lawsuit still wouldn't make any sense:
Even if Plaintiff alleged that individuals accessed the links contained in Defendant’s article
in order to read Plaintiff’s script, such an allegation would still not support Plaintiff’s contributory
infringement claim against Defendant. Simply viewing a copy of allegedly infringing work on one’s
own computer does not constitute the direct infringement necessary to support Plaintiff’s
contributory infringement claim. See Perfect 10, Inc., 508 F.3d at 1169 (where alleged primary
infringers merely view pages containing infringing images, but do not “store infringing images on
their computers,” there is no infringement). In addition, based on the allegations of the Complaint,
there can be little doubt that Plaintiff has a strong claim for direct infringement against Doe 1, a/k/a
AnonFiles.com. However, Plaintiff has not alleged and it is highly unlikely that Plaintiff will be able
to plead facts demonstrating that Defendant somehow induced, caused, or materially contributed
to the infringing conduct by publishing a link to the screenplay after it was wrongfully posted on
The court notes that Gawker spent a lot of effort explaining why this is fair use but notes that, "albeit persuasive and potentially dispositive," it doesn't even need to bother with that argument since there's no infringement to defend against fair use here anyway.
Once again, it seems like people who grow up totally immersed in a world of copyright maximalism automatically leap to the conclusion that "something I don't like" must be an infringement of copyright. Thankfully, the law (mostly) doesn't work that way.
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Posted on Techdirt - 23 April 2014 @ 12:20am
We've covered the ridiculousness of the UK's "voluntary" web filters. UK officials have been pushing such things for years and finally pushed them through by focusing on stopping "pornography" (for the children, of course). While it quickly came out that the filters were blocking tons of legitimate content (as filters always do), the UK government quickly moved to talk about ways to expand what the filters covered.
The pattern is not hard to recognize, because it happens over and over again. Government officials find some absolute horror -- the kind of thing that no one will stand up for -- to push for some form of censorship. Few fight back because no one wants to be seen as standing up for something absolutely horrific online, or be seen as being against "family values." But, then, once the filters are in place, it becomes so easy both to ignore the fact that the filters don't work (and censor lots of legitimate content) and to constantly expand and expand and expand them. And people will have much less of a leg to stand on, because they didn't fight back at the beginning.
That appears to be happening at an astonishingly fast pace in the UK. Index On Censorship has a fantastic article, discussing how a UK government official has already admitted to plans to expand the filter to "unsavoury" content rather than just "illegal."
James Brokenshire was giving an interview to the Financial Times last month about his role in the government’s online counter-extremism programme. Ministers are trying to figure out how to block content that’s illegal in the UK but hosted overseas. For a while the interview stayed on course. There was “more work to do” negotiating with internet service providers (ISPs), he said. And then, quite suddenly, he let the cat out the bag. The internet firms would have to deal with “material that may not be illegal but certainly is unsavoury”, he said.
And there it was. The sneaking suspicion of free thinkers was confirmed. The government was no longer restricting itself to censoring web content which was illegal. It was going to start censoring content which it simply didn’t like.
It goes on, in fairly great detail, to describe just how quickly the UK is sliding away down that slippery slope of censorship. It highlights how these filters were kicked off as an "anti-porn" effort, where the details were left intentionally vague.
But David Cameron positioned himself differently, by starting up an anti-porn crusade. It was an extremely effective manouvre. ISPs now suddenly faced the prospect of being made to look like apologists for the sexualisation of childhood.
Or at least, that’s how it was sold. By the time Cameron had done a couple of breakfast shows, the precise subject of discussion was becoming difficult to establish. Was this about child abuse content? Or rape porn? Or ‘normal’ porn? It was increasingly hard to tell.
And, of course, the fact that the filters go too far, is never seen as a serious problem.
The filters went well beyond what Cameron had been talking about. Suddenly, sexual health sites had been blocked, as had domestic violence support sites, gay and lesbian sites, eating disorder sites, alcohol and smoking sites, ‘web forums’ and, most baffling of all, ‘esoteric material’. Childline, Refuge, Stonewall and the Samaritans were blocked, as was the site of Claire Perry, the Tory MP who led the call for the opt-in filtering. The software was unable to distinguish between her description of what children should be protected from and the things themselves.
At the same time, the filtering software was failing to get at the sites it was supposed to be targeting. Under-blocking was at somewhere between 5% and 35%.
Children who were supposed to be protected from pornography were now being denied advice about sexual health. People trying to escape abuse were prevented from accessing websites which could offer support.
And something else curious was happening too: A reactionary view of human sexuality was taking over. Websites which dealt with breast feeding or fine art were being blocked. The male eye was winning: impressing the sense that the only function for the naked female body was sexual.
But, of course, no one in the UK government seems to care. In fact, they're looking to expand the program. Because it was never about actually stopping porn. It was always about having a tool for mass censorship.
The list was supposed to be a collection of child abuse sites, which were automatically blocked via a system called Cleanfeed. But soon, criminally obscene material was added to it – a famously difficult benchmark to demonstrate in law. Then, in 2011, the Motion Picture Association started court proceedings to add a site indexing downloads of copyrighted material.
There are no safeguards to stop the list being extended to include other types of sites.
This is not an ideal system. For a start, it involves blocking material which has not been found illegal in a court of law. The Crown Prosecution Service is tasked with saying whether a site reaches the criminal threshold. This is like coming to a ruling before the start of a trial. The CPS is not an arbiter of whether something is illegal. It is an arbiter, and not always a very good one, of whether there is a realistic chance of conviction.
As the IWF admits on its website, it is looking for potentially criminal activity – content can only be confirmed to be criminal by a court of law. This is the hinterland of legality, the grey area where momentum and secrecy count for more than a judge’s ruling.
There may have been court supervision in putting in place the blocking process itself but it is not present for individual cases. Record companies are requesting sites be taken down and it is happening. The sites are only being notified afterwards, are only able to make representations afterwards. The traditional course of justice has been turned on its head.
And it just keeps going on and on. As the report notes, "the possibilities for mission creep are extensive." You don't say. They also note that technologically clueless politicians love this because they can claim they're solving a hard problem when they're really doing no such thing (and really are just creating other problems at the same time):
MPs like filtering software because it seems like a simple solution to a complex problem. It is simple. So simple it does not exist.
Of course, if you recognize that the continued expansion of such filters was likely the plan from the beginning, then everything is going according to plan. The fact that it doesn't solve any problems the public
are dealing with is meaningless. It solves a problem that the politicians
are dealing with: how to be able to say they've "done something" to "protect the children" while at the same time building up the tools and powers of the government to stifle any speech they don't like. To those folks, the system is working perfectly.
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Posted on Techdirt - 22 April 2014 @ 8:17pm
Back in December, it was revealed that the NSA had given RSA $10 million to push weakened crypto. Specifically, RSA took $10 million to make Dual Elliptic Curve Deterministic Random Bit Generator, better known as Dual_EC_DRBG, as the default random number generator in its BSAFE offering. The random number generator is a key part of crypto, because true randomness is nearly impossible, so you need to be as random as possible. If it's not truly random, you've basically made incredibly weak crypto that is easy to break. And that's clearly what happened here. There were other stories, released earlier, about how the NSA spent hundreds of millions of dollars to effectively take over security standards surreptitiously, including at least one standard from the National Institute of Standards and Technology (NIST). People quickly realized they were talking about Dual_EC_DRBG, meaning that the algorithm was suspect from at least September of last year (though there were indications many suspected it much earlier).
In response to all this, NIST quickly issued an announcement recommending against using Dual_EC_DRBG, but it didn't finally remove it from its random number generator recommendations until this week -- following through on an open comment process on changing its recommendations.
Following a public comment period and review, the National Institute of Standards and Technology (NIST) has removed a cryptographic algorithm from its draft guidance on random number generators. Before implementing the change, NIST is requesting final public comments on the revised document, Recommendation for Random Number Generation Using Deterministic Random Bit Generators (NIST Special Publication 800-90A, Rev. 1).
The revised document retains three of the four previously available options for generating pseudorandom bits needed to create secure cryptographic keys for encrypting data. It omits an algorithm known as Dual_EC_DRBG, or Dual Elliptic Curve Deterministic Random Bit Generator. NIST recommends that current users of Dual_EC_DRBG transition to one of the three remaining approved algorithms as quickly as possible.
In September 2013, news reports prompted public concern about the trustworthiness of Dual_EC_DRBG. As a result, NIST immediately recommended against the use of the algorithm and reissued SP 800-90A for public comment.
Some commenters expressed concerns that the algorithm contains a weakness that would allow attackers to figure out the secret cryptographic keys and defeat the protections provided by those keys. Based on its own evaluation, and in response to the lack of public confidence in the algorithm, NIST removed Dual_EC_DRBG from the Rev. 1 document.
In the announcement, NIST also points out that it's reviewing its cryptographic standards development process, to try to prevent this sort of thing from happening again.
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Posted on Techdirt - 22 April 2014 @ 3:59pm
Late last fall, we highlighted some very questionable practices by Intellectual Ventures in suing a bunch of big banks for patent infringement. Our focus was on a particular patent, 6,182,894, which was initially assigned to American Express, and which claimed to cover the concept of CID or CVV codes (those little extra three numbers on the back of your credit card you're supposed to type in as an added security measure). American Express, perhaps realizing how ridiculous it would be to sue over such a patent "donated" it to a non-profit, the Consumer and Merchant Awareness Foundation ("CMAF"), who explicitly promised that it would only be used to encourage better credit card security, and that it would never use the patent "against issuers, acquirers, merchants or consumers related to activity in the retail financial services and payment areas." Of course, it took all of about two years before CMAF effectively sold the patent to Intellectual Ventures, and then disappeared as an entity. IV, apparently, felt that it was not bound by the original promises, and started suing basically everyone. Soon after our story appeared exposing this questionable activity, Intellectual Ventures suddenly decided to drop that particular patent from its lawsuit. Shocking.
However, it continued with a few other patents... but that all ended last week when a judge rejected the remaining patents as completely bogus:
... the Court concludes as a matter of law, based on a clear and convincing evidence, that neither the '137 nor the '382 patent contains patentable subject matter under Section 101.... Nothing in the Court's Claim Construction establishes patentability, since however the claim terms may be construed each patent consists of nothing more [than] the entry of data into a computer database, the breakdown and organization of that entered data according to some criteria, disclosed in the '137 patent, but not the '382 patent, and the transmission of information derived from that entered data to a computer user, all through the use of conventional computer components, such as a database and processors, operating in a conventional manner. There is no inventive technology or other inventive concept that authorizes the protections of a patent, such as an improvement in the workings of the computer or the transmissibility of data or some other transformation of data into something qualitatively beyond the informational content of the data entered, even though the data might be organized and manipulated to disclose useful correlations. Rather, these patents are "drawn to a mental process -- i.e., an abstract idea."...
The two patents in question, 8,083,137
, describe some rather basic and obvious ideas that a couple of patent lawyers twisted around to make it appear like they were patentable. The '382 patent claims to patent offering up a custom webpage to a user based on their personal preferences. The '137 patent is about "administering financial accounts." In both cases, Joe Mullin in the link above notes that they appear to have really originated with patent lawyers. The '137 patent did come from an engineer, but it wasn't because of anything she invented. She was doing some retirement planning, and her patent lawyer husband thought that her ideas for tracking budgets could be patented. The '382 patent just came straight from a patent lawyer.
And, of course, what the judge was noting above, is that neither should have been granted as patents in the first place, because both just involved basic data processing that any software could do. Neither did anything even remotely inventive. And, of course, the fact that both originated with patent lawyers highlights just how bogus IV's constant refrain is about how it's protecting individual inventors. It's never been about individual inventors at all.
It's been about the lawsuits and the money.
Which is why it should be no surprise to read about IV's response
to this complete loss:
[Our] patent portfolio is deep and we have another action pending against Capital One in Maryland. We remain committed to defending our intellectual property rights, as well as those of our customers and investors.
In other words, okay, if we didn't get you with the first batch of bogus patents, we have tens of thousands of other bogus patents, and sooner or later, some judge will either let us win, or these banks will fork over lots of cash to make us go away.
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Posted on Techdirt - 22 April 2014 @ 2:59pm
A recent article in the NY Times talked about how the US State Department is behind a project to build up mesh networks that can be used in countries with authoritarian governments, helping citizens of those places access an internet that is often greatly limited. This isn't actually new. In fact, three years ago we wrote about another NY Times article about the State Department funding these kinds of projects. Nor is the specific project in the latest NYT article new. A few months back, we had covered an important milestone with Commotion, the mesh networking project coming out of New America Foundation's Open Technology Institute (OTI).
But the latest NYT article is especially odd, not because it repeats old news, but because it tries to build a narrative that Commotion and other such projects funded by the State Department are somehow awkward because they could be used to fight back against government surveillance, such as those of the NSA. The problem is that the issues are unrelated, and nothing in mesh networking deals with stopping surveillance. As Ed Felten notes, the Times reporters appear to be confusing things greatly:
There’s only one problem: mesh networks don’t do much to protect you from surveillance. They’re useful, but not for that purpose.
A mesh network is constructed from a bunch of nodes that connect to each other opportunistically and figure out how to forward packets of data among themselves. This is in constrast to the hub-and-spoke model common on most networks.
The big advantage of mesh networks is availability: set up nodes wherever you can, and they’ll find other nearby nodes and self-organize to route data. It’s not always the most efficient way to move data, but it is resilient and can provide working connectivity in difficult places and conditions. This alone makes mesh networks worth pursing.
But what mesh networks don’t do is protect your privacy. As soon as an adversary connects to your network, or your network links up to the Internet, you’re dealing with the same security and privacy problems you would have had with an ordinary connection.
The whole point of Commotion and other mesh networks is availability
, not privacy. The target use is for places where governments are seeking to shut down
internet access, not surveil on them. Yes, there is a case where if you could set up a mesh network that then routed around government surveillance points you could circumvent some
level of surveillance, but the networks themselves are not designed to be surveillance proof. In fact, back in January when we wrote about Commotion, we pointed out directly that the folks behind the project themselves are pretty explicit that Commotion is not about hiding your identity or preventing monitoring of internet traffic.
Could a mesh network also
be combined with stronger privacy and security protections? Yes, but that's different than just assuming that mesh networking takes on that problem by itself. It doesn't -- and it's misleading for the NYT to suggest otherwise.
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Posted on Techdirt - 22 April 2014 @ 2:01pm
The oral arguments in the Aereo case happened this morning before the Supreme Court and you can read the transcript here (it's still a travesty that there is no live broadcasting (or any video recording at all) of the proceedings, but that's a different argument for a different day). As with any such case, this discussion needs to be prefaced with the fact that reading the tea leaves from what Justices say during oral arguments is a unlikely to yield much that is useful. You'll often see large segments of the arguments discuss issues that later don't appear at all in the final ruling. In some cases, Justices are just testing out certain theories or pushing the lawyers to see how they respond. Oral arguments do matter, but not nearly as much as the underlying briefs. We still have a few months (probably) to find out how the Court will rule, but we can at least comment on some of today's discussion.
The important thing to get from the discussion was that the Justices, for the most part, seem to actually recognize that with copyright law the way it is today, finding -- as the broadcasters would like -- that Aereo is engaged in a public performance -- may have long term consequences for all sorts of other industries. It starts off early on, with Justice Sotomayor jumping in with a very different question, concerning whether or not Aereo is a cable company, which would include a different set of issues (in fact, this was exactly the strategy that Aereo competitor/predecessor ivi sought to take -- and ran into trouble). She points out that there may be value in avoiding the whole public performance question all together, since it could get messy:
If we take public performance, maybe we run
into what Professor Nimmer saw as a problem. Why isn't
what used to be called a phonograph record store that
sells phonograph records to 10,000 customers a public
performance? It seems to fall within that definition.
But if it is, there's no -- no first sale doctrine and
it's a big problem. So we could avoid that problem.
Meanwhile, Justice Breyer is clearly concerned about the possible impact on the cloud, again in discussing the possibility that the Court could avoid the issue by calling Aereo a cable company:
And what you've read in their briefs is
they, in their supporting amici, have thrown up a series
of serious problems not involving them, like the cloud,
which the government tells us to ignore, and many
others, which make me nervous about taking your
Which bounces back to Sotomayor, who notes that the public performance definition the broadcasters want "sweeps up" an awful lot of other businesses where it doesn't make sense:
I mean, Justice Breyer has already asked you -- said he's
troubled about the phonograph store, and -- and the
Dropbox and the iCloud. I'm also worried about how to
define or -- public performance or the performance of a
work publicly, which I guess is the better way to do it,
according to you. How do I define that so that someone
who sells coaxial cable to a resident of a building is
not swept up as a participant in this? Or someone
who -- the sort of passive storage advisors that -- this
is really hard for me.
Justice Kagan, also, quickly gets to the heart of the matter -- the point that we've been raising since the beginning with Aereo -- that this is all about the length of the cable. If someone were to do this at home -- with the same exact electronic setup, it's clearly legal. But the broadcasters want to make Aereo illegal, because the length of the cable between the "DVR" component and the "TV" component is much longer.
Suppose a company just gave the
antenna and a hard drive, that's what they sold to the
user, and the user was able to use the antenna and the
hard drive in her own house or apartment in order to get
all these broadcast programs. What would the -- would
that be a performance?
When the broadcaster's lawyer pushes back, Kagan points out that it does seem odd that where the hardware sits determines if there's a public performance or not.
But then it really does
depend on, like, where the -- where the hardware is. In
other words, if -- if Aereo has the hardware in its
warehouse as opposed to Aereo selling the hardware to
the particular end user, that is going to make all the
difference in the world as to whether we have a public
performance or not a public performance.
Chief Justice Roberts highlighted the same issue:
Why isn't -- and I don't want to stretch it too -- but why isn't it like a
public garage in your own garage? I mean, you know, if
you -- you can park your car in your own garage or you
can park it in a public garage. You can go to Radio
Shack and buy an antenna and a DVR or you can rent those
facilities somewhere else from Aereo. They've --
they've got an antenna. They'll let you use it when you
need it and they can, you know, record the stuff as well
and let you pick it up when you need it
There's then a discussion trying to see if there's a way to distinguish Aereo from the Cablevision decision (in the 2nd Circuit appeals court) saying that Cablevision's remote DVR was legal. The lawyer for the broadcaster says that he thinks the Cablevision decision was decided incorrectly, but the difference is that Cablevision already has a license. This is misleading, because the license in Cablevision was unrelated to the issue of the DVR feature. Furthermore, over-the-air broadcasts (which is what Aereo offers) have an implied license already associated with them (you don't have to pay to watch over-the-air TV for that very reason). So the distinction here is meaningless. Justice Breyer says that, even if that's true, there's still a real risk to cloud computing.
But then the problem is in the words that do
that, because we have to write words, are we somehow
catching other things that really will change life and
shouldn't, such as the cloud? And you said, well, as
the government says, don't worry, because that isn't a
public performance. And then I read the definition and
I don't see how to get out of it.
When asked similar questions, the Deputy Solicitor General, Malcolm Stewart, (again, bizarrely, the US is intervening
on behalf of Hollywood for no clear reason), appears to admit that there's no clear line, and that things should be decided on something of a case by case basis:
I think you would have to --
you would have to know both the details of the service
and you would have to be making a harder call there
about how to draw the line, because I don't pretend that
there is a bright line between providing a service and
providing access to equipment. If you look, for
instance, at the extremes of a person putting a rooftop
antenna at his own home, everybody agrees that the
rooftop antenna manufacturer is not performing at all
and the individual is engaged in a solely private
The other extreme is the cable company, one
big antenna, makes transmissions to a lot of people;
Congress clearly intended to define that as a private
performance. Somewhere in the -- you could come up with
lots of hypotheticals that look more or less like one of
the other extremes, they are somewhere in the middle.
It's an authentically hard call as to where to draw the
line. So I don't have a good answer for you.
But that seems rather important, given that this case is asking for that line to be drawn. And the Justices were clearly struggling with that point. Justice Breyer responded:
How do we get out of
the example? I mean, how do we get out -- what words do
I write to get out of this, throwing into this clause a
music store that distributes via Federal Express, a
device, or the U.S. Postal Service or even someone over
the counter, distributes to 10,000 people a copy of a
record which they then will take and play it? They
have, to the same degree, transmitted something that
will electronically make a performance of the music. So
are they when they sell the record violating the display
This isn't to say that the Justices are in agreement with Aereo. They expressed plenty of skepticism about the whole setup, arguing repeatedly that the whole thing seems to have been set up solely to fit within the law, using a technological setup that makes no sense. Aereo, in response, sought to argue that there were technical reasons for its setup, but frankly, that's bogus. The technological setup is insane
, but the insanity is not because Aereo is trying to "get around" the law, but the exact opposite. Because it's trying to stay within the law
. If the setup of copyright law itself wasn't so insane, there would be much better ways to do what Aereo is doing. But thanks to a bunch of interlocking "rights" buried within copyright law, and caselaw that is basically duct-taped onto the statute every time a new technology comes around, actually innovative requires
the Rube Goldbergian-approach that Aereo took just to stay within
the law. It's ridiculous that that
is seen as a suggestion of illegality...
When the broadcasters lawyer comes back to rebut Aereo's lawyer, he argues that if Aereo loses, it can just get a license or go out of business. But Justice Breyer notes that it's really not that simple:
Once you take them out of
the compulsory licensing system, they're going to have
to find copyright owners, who owns James Agee's
pictures? Who owns something that was written by --
like a French silent film in 1915? I mean, the problem
is that they might want to have perfectly good things
that people want to watch and they can't find out how to
get permission. That is a problem that worries me and
it worries me again once you kick them out of the other
In the end, I think the Justices were rightly worried about how any ruling might impact the cloud. While there was some skepticism about Aereo's setup, Aereo's lawyer did a good job highlighting why those were wrong. Still -- and again, reading Supreme Court tea leaves is nearly impossible -- if I were going to guess, I'd guess that the Supreme Court will seek some sort of "narrow" ruling that tries to say that Aereo should get a license (possibly just throwing the issue back to the lower courts on the details), while doing everything it can to avoid a ruling that throws the entirety of cloud computing under the bus.
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Posted on Techdirt - 22 April 2014 @ 1:13pm
Having followed the saga of Prenda Law over the past few years, one thing has become clear: John Steele really loves the "I know you are, but what am I" form of legal argument, in which whatever he's accused of, he aggressively accuses his accuser of being guilty of the same. It's a sort of faux macho move, in which every attack on him is met with an equally or more aggressive attack. To date, the strategy has failed badly, but it seems that Steele just can't let go of this kind of approach. In the latest round of the Anthony Smith case, Steele appears to be trying on a variant of that aggressive posture, taking on the very serious and direct accusations made against him (including those by multiple federal judges) and mocking them, by asking another court rhetorically, "what, do you really think I'm guilty of all these crazy things?" when the answer to that question may very well be yes.
At issue is the continuing fight over getting Steele and his collaborators, Paul Hansmeier and Paul Duffy, to actually pay up for their abuse of the legal process. Last we checked in on this particular case, the district court was finding them in contempt and piling more onto the money they would need to pay, while the appeals court does not appear to be impressed by Team Prenda's arguments, clearly calling out the "shell games" that Prenda and associated entities were playing.
While aspects of the case have been stayed during the appeal, other aspects are moving forward, including Smith's lawyer continuing to push for discovery on the actual assets of Steele, Hansmeier and Duffy. As you may recall, despite being required to provide such information, they did so in a questionable manner. As Judge David Herndon pointed out:
The Court finds that plaintiff's counsel has not met its burden. They submitted incomplete, and to say the least suspicious, statements of financial condition. Attached to each statement was a letter from their certified public accountant ("CPA"). In these letters, the CPA indicates a departure from generally accepted accounting principles. He further notes that plaintiff's counsel elected to omit substantially all of the disclosures required by generally accepted accounting principles. The Court finds these statements insufficient to establish plaintiff's counsel's inability to pay.
Since then, Smith's lawyer, Jason Sweet of Booth & Sweet, has continued to push for determining the financial position of the three individuals here. There's a sealed document which apparently hints at some shady financial dealings, but it appears to be making Steele very angry. While Paul Duffy filed a pretty empty opposition
saying that he has no offshore accounts, Steele went into full on, ultra-aggressive "who me?" defensiveness
in response, leading to some incredible statements, considering what multiple courts have already said about them. The classic part has to be this:
For this Court to find any act of Prenda should be attributed to Steele, the Court would have to believe that Steele lied to multiple federal judges without getting caught, committed massive tax fraud without the IRS finding out, and proactively broke into the Illinois Secretary of State’s corporate records database to hide his ownership of Prenda Law, all because of the remote chance that years later a federal judge might sanction Prenda Law for $261,000.
Except... of course, multiple judges have already
claimed that Steele and the others have
lied, including in this very case
. In the original ruling in this case, Judge Patrick Murphy directly called out Steele
for lying, saying: "These men have shown a relentless willingness to lie to the Court on paper and in person." He furthermore highlighted how it was quite clear that Steele was directly involved in Prenda, which Steele is now denying yet again. And no one is claiming he hacked into the corporate records database (though, now that he's denied it, it almost makes you wonder...), but that he was clearly in control of Prenda and received much of the money that went into Prenda.
As for the issue of the IRS, well, last we checked, at least one judge, Otis Wright, has referred their conduct to the IRS
, and there are at least some indications that an investigation is ongoing. And while no one thinks they set up this shell game specifically to avoid this particular ruling, it's not difficult to see that they did so to try to avoid a series of similar court rulings, after Prenda's initial approach started getting regularly shot down in court.
Steele's response also ratchets up the ridiculous rhetoric in describing the copyright trolling shakedown business, which they copied from a bunch of other firms:
Steele and his partner, Paul Hansmeier (”Hansmeier”) were early pioneers in catching thieves and hackers who engaged in stealing copyrighted works and other computer related misdeeds, including computer hacking and copyright infringement.
Except, of course, they were neither pioneers, nor were they catching "thieves" or "hackers." Rather, by all accounts, they set up a honeypot site
, uploaded their own content to it, shared it on file sharing sites, and then used the IP addresses of those who followed the release that they themselves put online, to shake them down with lawsuits and demands for settlement. The evidence
on this is fairly overwhelming
Steele tries to argue away the "oddities" the court noted in the filings made by the CPA they hired this way:
At the hearing, no reference was made to the GAAP, the Generally Accepted Accounting Rules, a set of standards designed for the financial reporting of corporations, not individuals. Steele submitted his financial statement as directed. Steele’s submissions were accurate, and no filing since has disproved any aspect of Steele’s statement
If he thinks that this will get him out of the fact that the CPA "elected to omit substantially all of the disclosures required" I would imagine he's got another thing coming.
Steele, also tries to angrily argue away the infamous Brett Gibbs spreadsheet
that revealed the revenue of Prenda Law, and how 70% of it went to both Steele and Hansmeier, who have long denied being associated with that firm. Steele argues that this spreadsheet was made by Gibbs
, as opposed to (as Gibbs has noted) made by Prenda and shared with Gibbs via a shared Dropbox account.
It appears that Mr. Gibbs created some accounting sheet of Prenda Law finances for some period of time prior to this case, and thus is irrelevant. Steele has no personal knowledge of Mr. Gibbs’ accounting records, methodology, or how Mr. Gibbs created his documents. According to Mr. Gibbs himself, he doesn’t either, and claims he doesn’t even know how his document came into existence. Such a document hardly comports with the Federal Rules of Civil Procedure governing admissible evidence.
He focuses on the fact that the spreadsheet is not admissible. Of course, his partner, Hansmeier, having argued basically the same thing in the past, has also suggested
that the facts of the document are accurate, noting (incorrectly) that the document supports Steele/Hansmeier's position and that it was "stolen."
Related to all of this, Steele appears to still be playing games. In a separate filing
, Sweet details how Steele took it upon himself to (incorrectly) inform various parties that Sweet had subpoenaed, that the stay on one part of the case meant those subpoenas were withdrawn as well. Except that they're part of a separate process, which is still ongoing. Sweet asked Steele to confirm that Steele had gone back
to those third parties, and admitted that he was wrong in interfering with the discovery process. Steele did not do so, but rather sent one of his snarky emails about how he promises that he "will address your most recent round of subpoenas as appropriate."
It's been a while since Steele has done this kind of thing, but it's the same old John Steele, cocky until the very end, even as all of the evidence is against him. It reminds you of a little kid who has been caught doing something wrong but figures if he just keeps denying it over and over again, buying himself time, there will be some way to get out of it all.
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Posted on Techdirt - 22 April 2014 @ 12:11pm
For the past five years or so, the USTR's chief intellectual property negotiator has been Stan McCoy. McCoy has long positioned himself as an intellectual property maximalist, repeating talking points from lobbyists regularly, while condescending to anyone who questions the legitimacy of those claims. McCoy famously was the chief negotiator behind the US's disastrous (and mostly failed) attempt to push ACTA through, as well as the lead on the TPP's intellectual property chapter -- a chapter so bad it may help sink the TPP agreement. In fact, previous reports have noted that McCoy's bullying and aggression in trying to push through the TPP were angering others in the negotiations. McCoy also has a long history of mocking public interest advocates, while praising maximalists for similar tactics. From a report a few years ago concerning a hearing that McCoy chaired:
The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.
Given all that, it should be no surprise at all that McCoy, the failed strategist behind ACTA and the TPP's IP provisions... has received his reward and pat on the back from the industry: a shiny new job at the MPAA
. As Tim Lee notes in that link, this is just the latest in the never-ending revolving door
between maximalist lobbying groups and the USTR:
Last year I wrote that at least a dozen former senior USTR officials have moved to industry groups that favor stronger protections. McCoy's hire makes it a baker's dozen. Previous hires include including Greg Frazier, who (according to his LinkedIn page) spent 8 years as the executive vice president of the Motion Picture Association of America after a stint at USTR. Other former USTR officials took jobs at drug and medical device companies.
McCoy's old job, assistant USTR for intellectual property and innovation, made him the Obama administration's highest-ranking trade negotiator on patent and copyright issues. Jamie Love, director of the public interest organization Knowledge Ecology International, notes that this isn't the first time USTR's top intellectual property official has gone on to take a lobbying job. McCoy's predecessor, Victoria Espinel, is now the head of the software industry group BSA.
Espinel's predecessor at BSA was Robert Holleyman, the man Obama just nominated to a senior post at USTR. While at BSA, Holleyman supported the controversial Stop Online Piracy Act, which would have created an official internet blacklist to aid in anti-piracy efforts. (He backtracked a few weeks later after an uproar in the technology community.
Another of McCoy's predecessors as USTR's top IP official is Joe Papovich, who later spent seven years as a lobbyist for the recording industry.
As Lee notes, the revolving door between maximalist lobbying organizations and the USTR goes round and round, with USTR officials joining the lobbyist organizations and then going back to the USTR. It's a clear case of regulatory capture by the industry. None of those folks go on to public interest or civil society groups, nor does the USTR ever seem interested in hiring those people. It's entirely a one-sided effort to help out the biggest lobbying interests. Work for a few years pushing through policies that favor those companies, and then get "rewarded" with a nice, high-paying job for those very same lobbyists, and no one ever seems to point out the obvious corruption in the entire process.
As Lee notes, as easy as it is to ascribe comic-book levels of ill-intent here, that's unlikely. McCoy and others genuinely believe what they're doing is the right thing. But the end results are clear:
I doubt public servants like McCoy consciously pursue dubious policies in an effort to curry favor with future employers. McCoy's press representative hasn't responded to my interview request, but I assume McCoy sincerely believes the Hollywood-friendly policies he advocated at USTR were in the interests of the nation.
But the revolving door between USTR and industry groups creates a strong but subtle pressure on USTR's culture. Like many government agencies, USTR regularly turns to outside experts to help it sort through complex trade issues. Naturally, they turn to people they trust: their former colleagues — or even former bosses — who now work at trade organizations with plenty of resources to devote to understanding the minutia of trade policy.
And it's even worse than that, frankly. Because, when you combine that revolving door, with the proposals seen in ACTA, TPP and elsewhere, it undermines the public trust
in all of this. People see it and naturally assume corruption
, even if the intent is pure. In other words, even if we give McCoy and others the benefit of the doubt, the very fact that he spent 5 years pushing entirely for the MPAA's policies, while brushing off any and all claims from the MPAA's critics, and then took a job at the MPAA, confirms in the minds of many people that the USTR has no interest in representing the public good. And that perception
(regardless if the underlying intent is real or not) corrodes public trust in the federal government, and the USTR in particular.
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Posted on Techdirt - 22 April 2014 @ 11:06am
Having followed the copyright industry for so long, I'm often shocked at the incredible sense of entitlement of those who argue strictly for greater and greater copyright powers. One thing we've discussed in the past is that the gatekeepers (and it always is the gatekeepers) have an issue of constantly overvaluing the content and undervaluing the service. That is, any time they see a new service come along that the public really likes, they insist that all or nearly all of the value must be attributable to the content and not the service. Thus, they will always argue that "the service" is somehow ripping them off. We've seen it over and over again, from ringtone royalties to Guitar Hero to Pandora and others. Every time the story is the same: these other companies are making some money (even if they already pay us) and therefore we're getting screwed. If anyone else is making any money, then the copyright holders start screaming about how it's completely and totally unfair.
In their minds, the value of the service is meaningless. The fact that they were unable to provide such services directly themselves gets totally ignored. They just insist that 100% of the value is the content, and thus they need to get more money. Nevermind the fact that companies like Pandora already pay nearly all of their revenue to the copyright holders. There's always more blood to be squeezed from that stone, even if it means killing the golden goose (to mix a few parables).
Two recent stories illustrate this extreme entitlement, and total dismissal of the value of anyone else, perfectly. Let's start with the Aereo case, which was heard today at the Supreme Court. It will be some time before the court rules, but check out this quote from Gordon Smith, the president of the National Association of Broadcasters on why he believes Aereo is breaking the law:
“Quite simply, Aereo takes copyrighted material, profits from it and does so without compensating copyright holders,” said Gordon Smith, the president of the National Association of Broadcasters.
Of course, that's misleading in the extreme for a variety of reasons. First of all, there are lots of areas where it's perfectly legal to profit from copyrighted materials without compensating copyright holders. Used book stores and used record stores (back when such things existed) are a perfect example. Fair use is another. The point is: just because someone is making a profit does not mean
that the copyright holders have to get paid. That's never been the case. In fact, it's the same fallacy described above. People are flocking to Aereo because it provides a better service
than the cable companies. But the broadcasters ignore all of that and insist all of the value must come from the content itself.
That brings us to the second story highlighting this, which involves comments over in the EU concerning the legality of reselling digital media. Not surprisingly, the record labels, represented by the IFPI and BPI, are 100% against this sort of thing
for no logical
reason, other than that consumers might actually prefer such a system
. They specifically highlight that the quality
of digital resales are too good
, and that might upset the business model the record labels have chosen. The argument echoes the labels' argument against ReDigi
in the US, a service that allows people to resell digital content that has been shut down in the US.
Again, the focus here has nothing to do with what's right or what's best for the public. In fact, the entire argument appears to be "fuck the public, we need more money." It completely ignores multiple studies that have shown that a thriving used goods market increases the value
of the original market. It ignores the idea that making things easier and better for consumers is a good thing. Instead, it's all about overvaluing the content and undervaluing everything else.
This all goes back to a point we made years ago: industries that have embraced copyright for the entirety of their business model have set copyright up as a crutch
on which they lean. Rather than exercising the rest of their body, finding all sorts of other good
business models that allow them to improve
the experience for customers, they just keep leaning on that crutch and insist it's entirely necessary for them to live. And thus, those other muscles atrophy and wither away. So now that the world is changing and innovating, and others are demonstrating lots of great ways to better serve the public
, the copyright maximalists are insisting it's all impossible. They need that damn crutch, and anything else is "piracy." They only have themselves to blame, of course. For decades, people have been explaining to them and showing them how to build better services, how to offer better experiences for everyone, while still making money. And, all they do is lean more on that old crutch and insist it's the only possible way to walk.
It's a massive sense of entitlement, in which they appear to have no self-awareness that they're actively advocating for a world in which the public is worse off.
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Posted on Techdirt - 22 April 2014 @ 7:53am
Back in 2012, we wrote about how Senator Dianne Feinstein appeared to be a lot more focused on who leaked information about the US involvement in Stuxnet, rather than the question of whether or not the US should have been involved in Stuxnet in the first place. Soon after, Feinstein pushed for astoundingly broad "anti-leak" rules that would effectively make it illegal to blow the whistle. It automatically treated any leak as bad, even if such a leak was clearly to blow the whistle on illegal behavior. Thankfully, Senator Wyden stepped in and helped kill that effort, noting the serious consequences:
"I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know," Wyden said in a floor statement publicly announcing his hold. "Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas."
This resulted in the anti-leak provision being withdrawn. However, it appears that, in late March, Director of National Intelligence, James Clapper, more or less put in place the same rules issuing an intelligence community directive
that bars all
unauthorized contact with the media, no matter what the subject or the issue. You can read the directive here
. While some may argue that of course no member of the intelligence community should be able to communicate with a member of the media without authorization, they are ignoring a few key points.
First, it makes no distinction at all between classified and non-classified information. That's a big deal. It's reasonable (to a certain extent) to suggest that intelligence employees should not be discussing classified information with the press, but when you get into unclassified material, it gets fairly ridiculous pretty quickly. Lots of members of the intelligence community will often help reporters out, providing explanations and details on background, and that's the sort of thing the intelligence community should support
given that they frequently complain that the press gets important details wrong.
Furthermore, as Wyden himself pointed out in the debate about Feinstein's original attempt:
I am concerned that they
will lead to less-informed public debate about national security
issues, and also undermine the due process rights of intelligence
agency employees, without actually enhancing national security.
But, of course, it gets even worse as you dig into the details. In the directive, "media" is defined incredibly broadly:
For purpose of this Directive, media is any person, organization, or entity (other than Federal, State, local, tribal and territorial governments):
a. primarily engaged in the collection production, or dissemination to the public of information in any form, which includes print, broadcast, film and Internet; or
b. otherwise engaged in the collection, production, or dissemination to the public of information in any ofrm related to topics of national security, which includes print, broadcast, film and Internet.
Perhaps I'm misreading it, but section "b" especially would appear to suggest that if you ever use your Facebook/Twitter/etc. account to share (i.e., "disseminate") any info concerning the "topic of national security," you're a part of the media. Did you share a Guardian story about Ed Snowden on Facebook? Or maybe comment about the Heartbleed bug? Congrats, you're now considered "the media" under this directive -- meaning that no one
who works for the intelligence community is allowed to interact with you at all, except with authorization. For intelligence community employees, this effectively rules out their ability to do things like go to their neighbors' barbecue this summer if that neighbor has ever shared any information concerning an issue that might be under the big umbrella of national security.
And, while it's unlikely that the FBI is suddenly going to be tracking down a lowly NSA analyst for sharing small talk with his or her neighbor, if that same analyst is suddenly under investigation for other issues, you'd better believe that such interactions will be brought under scrutiny. We've seen it before. An investigation into Thomas Drake's whistleblowing turned up nothing, so the DOJ went after him because he had a classified meeting agenda
on a computer (even though it was declassified anyway soon after) and threatened him with 35 years in jail. John Kiriakou blew the whistle on CIA torture, but was eventually charged with helping a reporter speak to another former CIA agent in a manner that revealed nothing that would have an impact on national security. In other words, when the DOJ wants to bring an intelligence community employee down, they'll find anything
to do so. And this directive gives them another tool, while at the same time making sure to stifle the public discourse on what the intelligence community is doing.
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Posted on Techdirt - 22 April 2014 @ 3:38am
As we've discussed, the administration has gone to incredible lengths to try to avoid any sort of public discussion concerning what legal authority it has to target American citizens with extrajudicial drone strikes. However, in a fairly big turn of events, a federal appeals court has overturned a lower court and ordered the DOJ to release "key portions" of the DOJ's classified memo that explains the legal justification for killing US citizen Anwar al-Awlaki via a drone in Yemen. What's interesting is that the panel came to this conclusion based on the administration's public discussion on drones:
The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.
“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”
The ruling is good in that this sort of information should be public and should be discussed publicly. However, at the same time, it also will likely lead to the administration clamping down on any other such information that it hopes to keep entirely secret -- which could be a real problem. It will lead to even less transparency and fewer open discussion concerning issues of the US doing things under questionable legal authority.
As we've seen over the past few years, DOJ lawyers seem happy and willing to justify just about anything, twisting the law in all sorts of ways to make very questionable decisions deemed "legal" with little to no oversight or review -- and no public discourse whatsoever.
Of course, it seems likely the DOJ will protest this latest decision and seek a Supreme Court review first, so it's not like the justification is going to be revealed any time soon.
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