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Shake Up At The Copyright Office A Possible Preview To Fight Over Copyright Reform (Copyright)

by Mike Masnick

from the well,-this-should-be-interesting dept on Tuesday, October 25th, 2016 @ 8:27AM
As you may have heard, last Friday, the brand new Librarian of Congress, Carla Hayden, removed the head of the Copyright Office, Maria Pallante, from her job. The press release from the Library of Congress tries to spin this as a "new appointment" for Pallante, to advise Hayden on digitization projects at the Library, but pretty much everyone sees this as Pallante being fired rather abruptly. From the Billboard article linked above:
U.S. Register of Copyrights Maria Pallante was removed from her job Friday morning (Oct. 21) by the Librarian of Congress, Carla Hayden, who has authority over the Copyright Office. Officially, Pallante has been appointed as a senior adviser for digital strategy for the Library of Congress, although it’s clear she was asked to step down. Karyn Temple Claggett, currently associate register of copyrights, has been appointed the acting register.

Pallante was locked out of the Library of Congress computer system this morning, according to two sources who spoke with Library employees. Earlier, Hayden had called several members of Congress to tell them about her decision. Later, she called the heads of several media business trade organizations to give them the news, according to one who received such a call.
There are all sorts of rumors flying about this. Pallante has, apparently, been advocating strongly for moving the Copyright Office out of the Library of Congress, and either making it an independent agency or linking it up with the Patent & Trademark Office under the Commerce Department. That would be a big mistake, frankly, because copyright is not supposed to be about "commerce" and "industry" but about benefiting the public. That's why it makes sense to leave it as part of the Library of Congress.

Still, when Hayden was first announced, basically all of the copyright maximalist front groups put out statements vaguely suggesting that they'd support Hayden if she promises to leave the Copyright Office alone. It would appear that Hayden has decided not to take that advice. Of course, there are some concerns about what Pallante will do in advising on digitization at the Library of Congress, but it does seem odd that at basically the same time this news leaked, I received notice that the the Library of Congress was going to start archiving Techdirt (yes, this is 100% a coincidence, but a funny one):
That said, the Copyright Office really could use new leadership. As we've been discussing, the Copyright Office has a pretty long history basically acting as a lobbying arm for Hollywood, which seems highly questionable. Pallante's legacy is definitely marred by the fact that she came out as a strong supporter of SOPA early on. And this year, the Copyright Office seems focused on pushing a bunch of bad ideas on copyright reform, including a nefarious plan to strip many websites of their DMCA safe harbors. We're also still completely perplexed as to why the Copyright Office flat out misrepresented copyright law to the FCC concerning its set-top box plan. The Copyright Office simply lied about how fair use works. That's scary.

That said, I should admit that I don't think Pallante herself was as bad as some critics made her out to be (though she did surround herself with a lot of people with really bad ideas). She at least seemed marginally better than some of the previous heads of the Copyright Office, and was actually at least slightly open to some good ideas on copyright reform (and plenty of bad ones). But it does seem like today's Copyright Office needs someone who isn't just representing Hollywood's viewpoint and recognizes that copyright itself is supposed to benefit the public first and foremost -- something Pallante denies.

Pallante's temporary replacement, Karyn Temple Claggett, is unlikely to change very much. Beyond it just being an interim position, Claggett came to the Copyright Office after working for many years at the RIAA, where she helped in the litigation against Grokster, Limewire, XM and This is not exactly someone who recognizes the changing nature of the internet and says "let's embrace it."

So now the big question is really what happens next. Lots of people are gearing up for a fight over who will take over the Copyright Office on a permanent basis. Is it going to be someone who comes from that world where copyright is supposed to only benefit the big copyright gatekeepers? Or will it be someone with a more nuanced view on how copyright works, how it's supposed to benefit the public by providing tools for creators. Either way, it seems like the fight over this is going to get messy. You already have lobbyists whispering to the press about how awful all of this is:
That executive, and others who represent creators and media businesses in Washington, D.C., expressed surprise and dismay that Pallante, who had the job since 2011, had been removed. “The people in the creative community are furious about the fact that this was done,” says a lawyer who works for organizations that support strong copyright laws, “but especially about the way it was done.”
Wait just a second here. How the hell can the RIAA/MPAA's of the world claim that they represent "the creative community"? That's bullshit. They represent a few large gatekeepers, who have a long history of screwing over the actual creative community any chance they get. More and more of the actual creative community these days have found that the internet is a wonderful tool for creating, promoting, distributing and monetizing their works -- and they recognize that the legacy industries and overly oppressive copyright laws get in the way of that, rather than helping. But, no matter what, you can bet that when a new Copyright Register is announced, we'll see more of this kind of misleading language and attacks -- and it will be something of a preview for the eventual fight over actual copyright reform bills that are expected to show up in the relatively near future.

Chickenshit American Bar Association Scared Out Of Publishing Report Calling Trump A Libel Bully (Defamation)

by Mike Masnick

from the chilling-effects dept on Tuesday, October 25th, 2016 @ 6:24AM
We've talked a lot about Donald Trump and his ridiculous views on defamation and the First Amendment -- including his penchant for threatening defamation lawsuits against basically everyone who says something he dislikes. He rarely follows through, though he certainly does sue sometimes.

In fact, someone has set up which lists out every known legal threat against the press or critics since his Presidential campaign began (ignoring the long list that predates the campaign). It also has a clock showing how long it's been since Trump's last threat.

So it shouldn't be much of a surprise that a group of media lawyers at the American Bar Association commissioned a report on Trump's litigation history, and the report (correctly) concluded that Donald Trump is a "libel bully" making a bunch of bogus threats and with a history of filing bogus defamation lawsuits in court (something he's outright bragged about). This shouldn't be controversial. Trump is, clearly, a libel bully, and even he has more or less admitted that with his comments on why he sued author Tim O'Brien.

But, apparently, the American Bar Association was too chickenshit and refused to publish the report, out of a fear that (wait for it...) Trump would sue them.
Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a “libel bully” who had filed many meritless suits attacking his opponents and had never won in court.

But the bar association refused to publish the report, citing “the risk of the A.B.A. being sued by Mr. Trump.”

David J. Bodney, a former chairman of the media-law committee, said he was baffled by the bar association’s interference in the committee’s journal.

“It is more than a little ironic,” he said, “that a publication dedicated to the exploration of First Amendment issues is subjected to censorship when it seeks to publish an article about threats to free speech.”
With the ABA chilled into suppressing a report about Donald Trump chilling free speech, the Media Law Resource Center picked up the fumbled ball and released the report on its own. The opening executive summary is pretty clear:
Donald J. Trump is a libel bully. Like most bullies, he's also a loser, to borrow from Trump's vocabulary.

Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics.

But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court.
The full article then goes on to examine in more detail seven speech-related cases, and uses the paper to argue in favor of stronger anti-SLAPP laws to prevent such speech chilling.
... this examination of Trump's libel losses also provides a powerful illustration of why more states need to enact anti-SLAPP laws to discourage libel bullies like Trump from filing frivolous lawsuits to chill speech about matters of public concern and run up legal tabs for journalists and critics.
The ABA's refusal to publish the report is really ridiculous, but only serves to highlight the issue here. When an organization that absolutely must know better is still too afraid to publish a report like this, it highlights just how successful Trump can be in stifling speech with just his threats. And, yes, this report eventually was released, thanks to some First Amendment lawyers who knew how ridiculous this was, but we don't know how many others have been scared away into silence.

Leaked Documents Show New Zealand Company's Connection To GCHQ's Internet Dragnet (Privacy)

by Tim Cushing

from the build-a-better-data-scoop-and-the-world's-government-will-beat-a-path-to-you dept on Tuesday, October 25th, 2016 @ 3:24AM

Another stack of documents has been leaked to The Intercept, these ones detailing a little-known New Zealand company's facilitation of worldwide surveillance.

Dozens of internal documents and emails from Endace, obtained by The Intercept and reported in cooperation with Television New Zealand, reveal the firm’s key role helping governments across the world harvest vast amounts of information on people’s private emails, online chats, social media conversations, and internet browsing histories.

Endace -- like almost every other company in the literal spyware business -- also seems willing to sell to the highest bidder, no matter where they sit on their home nation's friends/enemies lists.

The leaked files, which were provided by a source through SecureDrop, show that Endace listed a Moroccan security agency implicated in torture as one of its customers. They also indicate that the company sold its surveillance gear to more than half a dozen other government agencies, including in the United States, Israel, Denmark, Australia, Canada, Spain, and India.

The documents now in The Intercept's hands detail Endace's work for GCHQ, assisting it in its quest to pull as much data and communications as it can from underseas cables which conveniently route about one-fourth of the world's internet traffic into the waiting arms of the spy agency. These leaked documents were cross-referenced with The Intercept's Snowden stash to confirm their legitimacy.

The documents show GCHQ asked Endace for several modifications of the stock product it originally presented to the agency. These alterations served one purpose: to build haystacks faster.

A November 2010 company document said that “FGA” ["friendly government agency"] had an order of 20 systems scheduled for delivery in March 2011. Each system was equipped with two “data acquisition” cards capable of intercepting 20Gs of internet traffic. The total capacity of the order would enable GCHQ to monitor a massive amount of data — the equivalent of being able to download 3,750 high-definition movies every minute, or 2.5 billion average-sized emails an hour.

Other info in the documents shows Endace and GCHQ were (are?) aiming for deployment of 300-500 of these systems, allowing the agency to pull in a large percentage of the traffic traveling through tapped underseas cables. There are also hints that suggest some data is more useful to the GCHQ than others, with WhatsApp, Facebook, Gmail, and Hotmail being specifically named. Also of importance to GCHQ: the ability to track targets by MAC address.

When Endace isn't selling to "friendly" government surveillance agencies (and "friendly" governments with decades of human rights abuses under their belts), it's also selling its interception technology to telcos to better assist them in complying with law enforcement requests.

Perhaps the most darkly comic aspect of all of this is that UK and New Zealand taxpayers are likely being double-dipped for surveillance efforts that encompass their own data and communications. Not only are they paying for the tech and ongoing collection efforts, but Endace was also awarded $11.1 million in government grants to defray 50% of the cost of "substantial product developments." Endace isn't saying which products were developed using these grants, and the New Zealand government says the company isn't obligated to reveal how this money was spent.


Corporate Sovereignty Helps To Bring EU-Canada Trade Deal To Brink Of Collapse (Legal Issues)

by Glyn Moody

from the politically-toxic dept on Monday, October 24th, 2016 @ 10:58PM

The trade deal between the EU and Canada, known as CETA -- the Comprehensive Economic and Trade Agreement -- is remarkable for the fact that it has still not been signed and ratified, even though its completion was "celebrated" over two years ago. That's partly because of growing resistance to the inclusion of a corporate sovereignty chapter -- also known as investor-state dispute settlement (ISDS). In an attempt to head that off, the European Commission persuaded Canada to swap out vanilla ISDS for a new, "improved" version called the Investor Court System (ICS). As Techdirt noted before, this is really just putting lipstick on the pig, and doesn't change the fact that companies are being given unique privileges to sue a country for alleged harm to their investments using special tribunals, as well as in national courts.

CETA has faced other problems, notably from Bulgaria, Romania and Belgium. The first two said they wouldn't sign because of Canada's refusal to lift visa requirements for their citizens. That blackmail seems to have paid off. The Sofia Globe reports that Canada has agreed to remove the visa requirements from December 2017, and Bulgaria and Romania now say that they will sign CETA.

That leaves Belgium, or more precisely, the French-speaking Belgian region of Wallonia, which, as we noted back in April, was not happy with CETA. A couple of weeks ago, the Walloon parliament confirmed that it would refuse to give its permission for the central government to sign CETA in its name (original in French). Because of the way the Belgian political system works, that meant that Belgium would not be able to sign CETA on October 27, as the European Commission had originally hoped.

That, in its turn, meant that the European Union as a whole would not be able to sign CETA on that day. That's because back in July, European Commission president Jean-Claude Juncker agreed to treat CETA as a so-called "mixed agreement," a deal that must be ratified by all of the EU member states' national assemblies, as well as by the bloc. If Belgium can't do that because of Wallonia, CETA is blocked.

As you might imagine, the Walloons have come under intense pressure to change their mind, from just about the entire EU and Canadian political establishment. Last Friday, Wallonia's Minister-President Paul Magnette told the regional parliament that he still refused to allow Belgium to sign, despite that pressure. As well as being worried about the impact of Canada's agricultural products on Walloon farmers, Magnette singled out corporate sovereignty as a particular worry for him and his colleagues.

The fact that CETA's ISDS/ICS remains the most problematic area can be seen from a fascinating CETA document (pdf) that was recently leaked. It's called the "Joint Interpretative Declaration on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States," and is an attempt to offer additional guarantees that are enough to convince Magnette and other CETA skeptics to allow its signing and ratification:

This interpretative declaration aims to provide a clear and unambiguous statement of what Canada and the European Union and its Member States agreed in a number of CETA provisions that have been the object of public debate and concerns. This includes, in particular, the impact of CETA on the ability of governments to regulate in the public interest, as well as the provisions on investment protection and dispute resolution, and on sustainable development, labour rights and environmental protection.
The section on Investment Protection is by far the longest, reflecting the seriousness of the problems there. Here's a key paragraph:
CETA clarifies that governments may change their laws, regardless of whether this may negatively affect an investment or investor's expectations of profits. Furthermore, CETA clarifies that any compensation due to an investor will be based on an objective determination by the Tribunal and will not be greater than the loss suffered by the investor.
As that demonstrates, there is nothing new in the declaration. Nobody is claiming that CETA will stop governments changing their laws, just that the massive fines that can be imposed by supra-national tribunals are likely to discourage them from doing so. Similarly, claiming that those fines will be "based on an objective determination by the Tribunal and will not be greater than the loss suffered by the investor" simply confirms the untrammelled power of the tribunal to impose whatever fine it thinks is appropriate.

As of this weekend, Magnette was still holding out for more guarantees. He has said that he is not against CETA in principle, but does want improvements to it, which offers the European Commission a way out of this crisis that they will surely try to seize. If the interpretative declaration is changed sufficiently, Magnette may be willing to give permission to Belgium to sign.

However, there's another factor. In the face of the continuing problems on the EU side, the Canadians seem to be close to calling the whole thing off. As the Guardian reported:

A landmark trade deal between the European Union and Canada is in meltdown, after Canada's trade minister walked out of talks with the Belgian regional parliament that has been blocking the deal.

The Canadian trade minister, Chrystia Freeland, was on the verge of tears on Friday as she announced the "end and the failure" of talks with the Walloon government.

However the head of the European parliament said late on Friday he would hold emergency talks in a bid to save the deal.
As that indicates, EU politicians are still trying to patch things up, but it's unlikely that Canada will be willing to make yet more concessions to satisfy Magnette. For his part, he said on Sunday night that he was "disappointed" with the Commission's latest attempt to convince him to accept CETA's ISDS (original in French). In any case, it looks increasingly likely that CETA will not be signed on October 27, and that Canada's prime minister, Justin Trudeau, will not be traveling to Europe to do so, which would be a huge diplomatic embarrassment for the European Commission. Corporate sovereignty may not be the only reason CETA is falling apart, but it is certainly one of the main ones. The twists and turns of the Walloon saga confirm just how politically toxic it has become.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+


PINAC Director Sues Miami Beach Mayor Over Refusal To Release Social Media Blocklists (Legal Issues)

by Tim Cushing

from the blocking-the-public-and-then-blocking-the-public dept on Monday, October 24th, 2016 @ 5:23PM

Executive director of Photography is Not a Crime (PINAC) Grant Stern is taking Miami Beach mayor Philip Levine to court over public records request denials. As Fusion's Ethan Chiel reports, the mayor has been busy blocking critics on both Twitter and Facebook, and Stern aims to find out just how many constituents the mayor is tuning out.

[T]he suit demands the release of 30 days of Levine’s tweets, the list of users blocked from commenting on his Facebook page, and records regarding Levine’s radio show. The suit seems to ask Florida’s Eleventh Judicial Court to decide what qualifies as official communication on social media by an elected official.

Stern has some personal experience with Mayor Levine. Facebook comments and tweeted responses by Stern have been deleted and/or met with blocks. The push to have the court issue an opinion on what is or isn't an "official communication" is also prompted by the mayor's actions (or the actions of whoever runs his official social media accounts). As Chiel notes, Stern's (swiftly deleted) Facebook comment requesting a month's-worth of Mayor Levine's tweets (after being blocked on Twitter) was greeted with a hasty rewrite of the mayor's social media account info.

At some point in the intervening period, the about section of Levine’s Facebook page and his Twitter bio were updated with a new disclaimer: “This page expresses the opinions and views of Mayor Levine and not those of the City of MB.”

This hasty rewrite appears to have led directly to the denial the city issued in response to Stern's request for social media blocklists:

Stern received a letter from Deputy City Attorney Aleksandr Boksner who said that the block list for the Facebook account was “not a public record that was made or received in the course of the official business of the City of Miami Beach,” and thus wouldn’t be produced.

Stern's lawsuit [PDF] argues to the contrary: Mayor Levine clearly uses both accounts for official city business.

Levine utilizes Facebook® to communicate the official acts and businesses of the City of Miami Beach to his constituents. Levine’s Facebook® account addresses him as a governmental official and that his current office is the mayor of Miami Beach, Florida. Levine’s account states that he is: “Making Miami Beach the city that works...for its people.”

After a cursory review of Levine’s Twitter® and Facebook®, there’s no question that Levine utilizes social media to communicate the City of Miami Beach’s official business. Levine’s communications include posts such as renaming a Miami Beach street after Muhammad Ali to informing residents of the Zika virus outbreak in the city.

The city has refused to comment on the lawsuit, but it's fairly clear it considers social media accounts off limits for public records requests. That decision may not stand up to judicial scrutiny, however, not even with the hasty appendage of "not the city of MB" wording. Other government agencies have turned over blocklists to requesters, and it's a bit disingenuous to claim a public account disseminating information of interest to constituents is not "public records" subject to Florida's public records laws.

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