Remember not too long ago when some internet dude was saying that the best way to deal with harassment on the internet was to basically create a DMCA for harassment, where people could issue takedowns? And remember how we pointed out that this would make things worse, because just as the DMCA is regularly abused to silence people, this new tool would actually be used as a tool to harass more people and silence their speech? Here's just a little example of why a DMCA-like approach is a really, really, really bad idea as a way to deal with harassment or abuse online. Business Insider has a story about an unfortunate setup where a woman who is clearly being harassed was told by Twitter that she should file a DMCA notice, since some of the harassment involved using some of her photos. Following the sending of the DMCA notice, Twitter forwarded her notice to the folks harassing her, making them somewhat gleeful since it included her full contact info.
The Business Insider story doesn't reveal who the person is, and we're not going to do so either, because having looked at the details it's not going to do anyone any good. Suffice it to say that the story is legit. It involves a "controversial" topic (that shouldn't be controversial, if you're even remotely informed) and I don't want the comments on this story to devolve into an argument about said controversial topic. Either way, this is a clear story where some people on "one side" of this issue decided they were going to harass and intimidate someone on the other side. And this wasn't just garden variety "disagreement on the internet" that someone claims is harassing. This was a dedicated plan to intimidate the person. And they were clearly happy about getting her info and planned to do more with it:
Elsewhere the same people discussed literally using the general controversy over the DMCA to create further harassment of the individual.
The person complained to Twitter about the harassment and it appears that someone from Twitter told her that since the people harassing her were using photos, she should make a DMCA complaint. This was mistake number one. The DMCA should never be used for things that aren't really about copyright issues. It's not designed for that kind of thing and Twitter deserves to be chided for one of its employees suggesting that. However, in looking at the commentary around all of this, a lot of people are angry that DMCA notices involve passing on the full notices. I saw someone complain that companies should never forward on DMCA notices because it only will be used for abuse. That's a really bad idea.
There are good policy reasons for why we should want companies to forward DMCA notices on to the person who gets their work taken down. For one, given all the bogus takedown notices we talk about, things would be a lot worse if the people who were accused of infringement never were able to find out the details of who sent the notice. That's part of the point of the DMCA, to create at least some channel of communication between the copyright holder and those accused of infringing. Obviously, in a harassment situation, things are totally different and it's why the DMCA notice-and-takedown is exactly the wrong tool for this sort of thing, and any attempt to expand it in that direction is a really, really bad idea.
Furthermore, we should want DMCA notices passed on, including to places like Lumen Database, because that's how we actually get some information about how the DMCA notice and takedown process is working -- or not working. Worrying about censoring information in notices or not passing them along is not a good move. It just highlights why the DMCA process is a bad idea in contexts like harassment.
Now, the Business Insider article does make a good point that other companies, like Automattic and Github, are much clearer to people who are submitting DMCA notices that their details will be passed on to those who they're accusing of infringement -- and point out that you can have an agent file on your behalf. That's also something that Twitter should do. But people complaining that Twitter should not forward on DMCA notices are confusing two separate issues. Twitter absolutely should forward on DMCA notices. That's important. What they shouldn't do is tell people to file DMCA notices over harassment issues.
Over and over again, we're told that copyright is not about censorship, and yet time and time again we see how it is used to censor speech quite frequently. Back in March, we wrote about the somewhat horrifying bit of news that a news website that posted stories about the app Popcorn Timehad been seized by Norwegian police. The "crime" according to the police was that the site -- which never hosted the app at all -- did link to some other sites where you could download Popcorn Time. This is so far removed from the actual infringement as to be crazy. Yes, some users of Popcorn Time use the software to infringe on copyright-covered works. No one doubts that. But the software itself -- like a VCR -- can also be used for legitimate purposes as well. If a user infringes, go after the user. But the software itself shouldn't be targeted (even though it is). But, then you go another step removed to sites that host the app. And then a further step removed to a news site that links to sites that link to the software that a user might use to infringe.
And the police deemed that worthy of seizing? Even though the site also had a ton of news articles that would normally be considered protected expression?
I want to repeat this just to show how crazy it is. The police in Norway didn't go after actual infringers, they went after a news site that links to sites that host an app that might be used to infringe. Oh, and they did it using an asset seizure procedure that has basically no due process prior to an entire news website disappearing. That's messed up.
Apparently, Electronic Frontier Norway (EFN -- which is unrelated but similar to the EFF here in the States) -- and the Norwegian Unix User Group (NUUG) went to court over this, but had that rejected (perhaps reasonably) for lack of standing. However, TorrentFreak is reporting that the case is being appealed... but this time with the legal owner of the site:
With the new party the groups hope to have sufficient standing to have the case heard. In their appeal there’s a strong focus on the free speech element, and they hope the court will clarify when domain seizures are appropriate.
“We feel that this is an important case that addresses the limits of free speech,” EFN’s managing director Tom Fredrik Blenning tells TorrentFreak.
NUUG leader Hans-Petter Fjeld adds that the authorities shouldn’t be allowed to seize the domain name of a news site, which writes about open source software that by itself is not infringing.
“Part of what makes us upset is that the domain name of a news site about a piece of free software that has both legal and illegal uses, has been seized without judicial scrutiny,” Fjeld says.
This use of asset seizure to take down news sites that might be distantly related to infringement is extremely troubling. It's happened in the US, including just recently returning some domains it had seized five years prior, without ever having any evidence of actual infringement associated with those news sites.
The idea that this form of blatant censorship is being used globally should be yet another warning of how copyright law is regularly abused for censorship.
Over the weekend, the internet blew up over the story that Paramount and CBS were going to drop their silly lawsuit over a professional looking Star Trek fan film. The news was "broken" by the producer of the next official Star Trek film, JJ Abrams, sitting alongside the director of that film, Justin Lin, at a Star Trek fan event. Lin had previously expressed support for the fan film on Twitter, and Abrams claimed that Lin urged Paramount to settle, and that "within a few weeks" there would be an announcement that the case had been settled.
Of course, between now and "within a few weeks," the case is still going on... and the folks behind the fan film, called Axanar, had to file their reply to the amended complaint. And they have. And, as per usual with these things, it goes through and rebuts various claims and then tosses in a bunch of counterclaims. Normally we'd go through and analyze the more interesting/important claims, but given that there's still a pretty good chance the whole case is going away shortly, we'll skip all that and jump to the part where Axanar's lawyers point to the JJ Abrams/Justin Lin statements and basically throw their hands in the air and say "we don't know what to do about this." After highlighting both of their comments, as well as the quote from Paramount "confirming" the settlement talks, the filing notes:
Nevertheless, despite these public comments, the present action remains pending, and Defendants are currently left with uncertainty as to how Axanar may proceed with its film to fulfill the wishes of thousands of fans who have contributed.
Given that pretty much everyone has admitted that there are settlement talks that are far along, it seems like the court should put the case on hold to see how those pan out. It's fairly common to see courts give parties extra time to settle such disputes out of court, and here's a case where that extra time clearly makes a lot of sense.
It still seems likely that the case will settle soon. I've seen some (fairly ignorant) commentary online arguing that because Axanar has filed counterclaims, the case must now move forward, but that's wrong. People are confusing the fact that the parties can settle the case outside of court with the issue of whether or not Paramount can just drop the case. From the statements everyone made, it's quite clear that they were discussing settlements, not Paramount universally backing away. A Star Trek "rumors" site claims that people at CBS are upset about the counterclaims and may continue the case even if Paramount settles (remember, Paramount and CBS co-own the various Star Trek IP). That report also claims that the two companies want the settlement to include the Axanar project being shut down -- which would seem to contradict the claims from Abrams.
While anything is possible, and the revealing of the settlement before it was actually agreed to could make things a bit messier, I find the claims about this difficult to believe. Axanar had to file its response because the case is still going and it was due. And they filed a strong response with counterclaims, because they have to do that, in case the settlement talks do fall apart for whatever reason. They can't go back to the judge and say "Hey, we filed a weak response because we thought we were all chummy now." That's not how it works. And, of course, the lawyers on the other side know this as well. The idea that the high priced lawyers at Paramount and CBS were somehow offended by this seems like a stretch. I may not agree with their views on copyright law, but I'd doubt they're so thin-skinned that some expected counterclaims will suddenly stop them from wanting to settle. Frankly, all the talk about how the counterclaims have sunk the settlement seem like wishful thinking from a group of folks who just hate the idea of Axanar.
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from the you'll-find-out-about-the-additions-when-you're-told-you-can't-talk dept
The annual intelligence authorization is under way, with the Senate deciding how much money the nation's spy agencies will receive next year, along with anything else they can slip in while no one's looking. The entire discussion takes place behind closed doors, so there's very little stopping the Intelligence Committee's many surveillance fans from amending the bill to increase intelligence agencies' powers.
A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.
If passed, the change would expand the reach of the FBI’s already highly controversial national security letters.
The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”
Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.
The FBI's history of abusing NSLs is well-documented. These letters allow the agency to route around judicial oversight by chanting "national security" while composing their requests. (Bonus feature: recipients are forbidden from talking about them... indefinitely.) Increasing the FBI's access with no corresponding increase in oversight is definitely not a good idea, considering it has never shown interest in self-restraint.
The FBI historically has not had access to email records via NSLs, although it did spend several years doing exactly that before being shut down by the DOJ. It obviously wants that access again and FBI Director James Comey claims the only thing standing between it and the access it always thought it had is a "typo."
If this secret amendment passes along with the authorization bill, it would weaken attempts to reform the ECPA -- the 1986 law that gives the government warrantless access to emails and other online documents more than 180 days old. But rather than fix the Senate intelligence authorization bill, legislators are looking to carve a hole in the recently (and unanimously) passed Email Privacy Act.
Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.
Privacy advocates warn that adding it to the broadly supported reform effort would backfire.
“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”
The FBI should be sending out fruit baskets to the Senate Intelligence Committee for both expanding its surveillance reach and undercutting a much-needed reform effort. Secret laws made by secretive committees during closed-doors sessions doesn't seem very "American," but much like the super-secretive NSLs the FBI loves so much, the routine invocation of "national security" tends to ward off the scrutiny this process desperately needs.
In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.
But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.
It certainly sounded scary enough. Obama said things about "cyber threats" being a serious threat to national security and the US economy. The state of emergency, according to the President, would create a "targeted tool" for combating our cyber-enemies.
This state of emergency is just one more in a line of uninterrupted states of emergencies dating back to the mid-1970s. A perpetual state of emergency is far more useful to the government than a "targeted tool," so a declaration of (cyber) war against a bunch of noncombatants still served a purpose, if only indirectly.
It started the ball rolling on the CISPA/CISA resurgence, which eventually "passed" after being attached to the coattails of a budget bill with far more momentum and support, as few legislators were willing to stare down the barrel of a government shutdown just to prevent a badly-written cyber-bill from passing.
Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.
Declaring a state of emergency allows for the potential wreaking of havoc in taxpayers' lives. And even if these powers go unexercised (or anything), it still costs the taxpayers money.
Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of “approximately $760,000, most of which represent wage and salary costs for federal personnel,” the Treasury report said.
The expenses of national states of emergency aren't being offset by seized funds or assets related to the targets of the executive order. The Treasury Department's report logically notes that zero targets means zero seizures. According to another report quoted by Steven Aftergood of the Federation of American Scientists, the long-running "state of emergency" prompted by various North Korean actions is resulting in less than ~$60,000 a year -- compared to an operational cost of at least $125,000/month (presumably the North Korean state of emergency is more expensive than the "cyberwar" one). No one really expects a "break even" government, but it's inarguable that targeting known or unknown entities via executive orders really isn't doing much to cripple their operations.
from the 'this-will-end-the-criticism-once-and-for-all!' dept
Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)
Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.
According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)
H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.
Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.
That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:
On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).
The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”
Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.
The 13 minute h3h3 productions video in questionuses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.
The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.
The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.
Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.
The Infringing Video does nothing to alter the original Work with new expression, meaning, or message
The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.
These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.
Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.
People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.
What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.
On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”
And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?
Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.
Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.
Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.
The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.
All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.
from the hope-the-feds-enjoy-their-victory-over-transparency dept
Judge Robert Bryan -- having set his own house against itself by declaring the FBI could keep its NIT info secret while simultaneously declaring the defendant in the child porn case had every right to see it -- has managed to find a way out of his self-induced conundrum. And it's going to make the FBI very sad. (h/t Ars Technica)
For the reasons stated orally on the record, evidence of the N.I.T., the search warrant issued based on the N.I.T., and the fruits of that warrant should be excluded and should not be offered in evidence at trial.
Well, not quite.
Michaud hasn't had the case against him dismissed, but the government will now have to rely on evidence it didn't gain access to by using its illegal search. And there can't be much of that, considering the FBI had no idea who Michaud was or where he resided until after the malware-that-isn't-malware had stripped away Tor's protections and revealed his IP address.
The FBI really can't blame anyone but itself for this outcome. Judge Bryan may have agreed that the FBI had good reason to keep its technique secret, but there was nothing preventing the FBI from voluntarily turning over details on its hacking tool to Michaud. But it chose not to, despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.
Judge Bryan found the FBI's ex parte arguments persuasive and declared the agency could keep the info out of Michaud's hands. But doing so meant the judicial playing field was no longer level, as he acknowledged in his written ruling. Fortunately, the court has decided it's not going to allow the government to have its secrecy cake and eat it, too. If it wants to deploy exploits with minimal judicial oversight, then it has to realize it can't successfully counter suppression requests with vows of silence.
It's doubtful the FBI will learn from this experience. It did the same thing in 2012 and received nothing but deference from the courts. This time around, courts and lawyers are better educated, thanks to Snowden's leaks and a few hundred FOIA warriors -- all of whom have served to expose the massive, secret expansion of the government's surveillance reach and the near-complete dearth of effective oversight.
The FBI will be pushing hard for the adoption of the proposed Rule 41 changes. If these had been in place, every illegal search it performed using its NIT and the invalid warrant it obtained would have been legal. As it stands now, however, multiple courts have examined the warrant and the hacking tool and found the FBI's actions to be in violation of current statutes. What should have been slam-dunk prosecutions against unsympathetic defendants have instead become multiple participants in an ongoing debacle.
from the defendant-screwed-everything-up-but-his-choice-of-representation dept
The legalization of marijuana in a few states has led to some interesting law enforcement problems. To date, most of the "solution" appears to be camping out on the borders and seizing drugs from travelers headed out of the state. The lack of legalization on a federal level inflates drug bust stats but doesn't do much for visitors to pot-friendly states whose purchases are completely legal, but their possession -- once crossing the border into a neighboring state -- suddenly isn't.
Deputy Jason Henkel asked if he had any drugs or large amounts of cash in the rental car, and Felsheim said no.
Henkel asked if he could search the car, and Felsheim paused but eventually agreed. In the trunk, deputies found $40,000 in a gym bag and $25,000 more in a duffle bag, according to court records.
Felsheim admitted he was going to Golden, Colorado, to buy 10 pounds of pot to sell in Mankato, where he went to college. He said the rest of the cash belonged to passenger James Atkinson, who planned to buy 7½ pounds.
Seems fairly open-and-shut, what with the pair freely admitting they were going to take legally purchased drugs and sell them in a state where marijuana is illegal. It certainly must have seemed that way to James Atkinson, who pleaded no contest and spent 6 months in jail. However, Felsheim decided to roll the dice on a trial… and won.
Felsheim opted for a bench trial, and was acquitted of both felonies. His lawyer, Tim Sullivan, did a good piece of work, and dug up a case called State v. Karsten, which dealt with conspiracies to commit crimes in other states.
Sullivan kept Felsheim from a jail sentence with this:
It is also a fundamental rule that criminal and penal laws are essentially local in character. Ordinarily, no penalty can be incurred under the law of this state except for transactions occurring within this state, and our state law has no extraterritorial effect. A conspiracy in this state to do something in another state which is lawful in that state is not a crime in this state. A conspiracy in Nebraska to gamble in Nevada is a convenient illustration of that principle.
The pot purchase would be legal, even if the resale in Minnesota wasn't. In between lies the route taken by the pair: the state of Nebraska. If someone says they're headed somewhere to purchase pot legally, Nebraska law enforcement can do nothing about it.
The prosecutor tried to salvage the case by saying it was "logical to infer" the pair planned to bring their marijuana back through Nebraska on their way to Minnesota -- that the conspiracy to commit an illegal act in Minnesota would manifest itself as illegal possession en route to that state. As Fault Line's Erinjeri points out, there's not a ton of logic in that inference.
In the age of Google Maps, it’s a relatively trivial exercise to plot a course from Colorado to Minnesota without going through Nebraska. Apparently Felsheim was either smart enough not to admit to that or (more likely) the police didn’t think to ask that question.
As the court noted, if this "loophole" is going to be closed, it's up to the state's legislature, not the court system. And Felsheim can no more be prosecuted under statutes yet to be created than he can for a conspiracy taking place entirely outside of Nebraska's borders and whose first step involves a completely legal purchase.
Unfortunately for Felsheim, a law the legislature did change arrived far too late to be of any assistance on the cash front. His share of the $67,000 is as good as gone, despite him being cleared by the court. Nebraska became one of the few states to require a conviction to seize assets, but that didn't go into effect until earlier this year. His open admission that the money was going to used to fund illegal drug sales is far, far more than any law enforcement agency would need to stake a claim on the cash, much less justify its seizure in the first place.
The obvious challenge with renewable energy sources like solar and wind is: what do you do when the sun isn't shining or the wind isn't blowing? Solar and wind generators don't tend to produce electricity in convenient amounts whenever we want, leading to wasted resources and further reliance on fossil fuel generators to keep up with electricity demand cycles. Storing lots of energy in an efficient way that can be readily recovered isn't easy, but there are some solutions that could work.