Remember when a copyright maximalist think tank guy insisted that copyright would never, ever be used for censorship? Well, about that...
Earlier this year, we wrote about a crazy lawsuit filed by Gene Kelly's widow, after finding out that a college professor named Kelli Marshall was working on a book collecting interviews with Gene Kelly. Marshall and her publisher reached out to a number of people associated with those interviews to clear any legitimate copyright claims (interview collection books are pretty common, and the copyright issue rarely gets in the way). Kelly's widow, Patricia Ward Kelly, claimed that she held the copyright on all of Gene Kelly's interviews, and sued Marshall for infringement. This was crazy for a variety of reasons, starting with the fact that the person being interviewed very rarely holds a copyright in the words they said (and Kelly's widow made a mad dash to the copyright office to try to register these interviews right before suing). There's also the whole fair use thing.
A couple months back, the court tossed out the lawsuit -- but not over the issues mentioned above. Instead, the court noted (correctly) that the issue wasn't "ripe" for court, because Marshall hadn't even written the book yet, so it's crazy to claim that it's infringing when we don't even know what's in it. So that's a victory, but not a great one for Marshall, since it likely means she's still facing a lawsuit once the book is done. And based on that Marshall has announced that she will no longer write the book.
Despite the judge’s ruling in our favor, I have decided not to move forward with the book. After much frustration and deliberation, I realize I have neither the time nor the resources to endure another potential lawsuit. I regret this for my research. I regret this for academia and the university press. But mostly, I regret this for the fans of Gene Kelly.
I can totally understand why she would do this. Yes, you could argue that she could file a lawsuit for declaratory judgment of non-infringement -- and probably win, but what a hassle that would be (not to mention an expensive hassle). Instead, we get yet another example of a completely bullshit copyright claim being used to censor -- and in this case, an academic book.
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Look, it's getting ridiculous that Hillary Clinton defenders keep insisting that the John Podesta emails released by Wikileaks are full of fakes and doctored content. With most other leaks, including the one of Colin Powell's emails, the victims (and, yes, they are victims) eventually admit that the leaked content is legit. Not so with the Podesta emails. But that's dumb. As Robert Graham points out, it's
totally possible to validate many of the emails. And they do validate.
Whether you like or dislike Wikileaks, whether you think Julian Assange is a wonderful or horrible person, whether you think Wikileaks is just a propaganda tool of Russia or a powerful force for transparency -- one thing you cannot say is that the organization has been caught releasing fake or doctored information. It (and Assange) do have a history of overhyping releases, or misrepresenting their significance. And Assange does seem to be pretty quick to jump on conspiracy theories that don't hold up under much basic scrutiny. But, to date, pretty much everything that Wikileaks has actually leaked has checked out as legit.
So it's been a bit bizarre watching people try to insist that the troves of John Podesta emails that Wikileaks has been releasing are somehow fake, doctored or manipulated. We recently wrote about Newsweek reporter Kurt Eichenwald going crazy insisting that he had proved that Wikileaks and the Russians teamed up to "manipulate" an email. Of course, the reality turned out to be that a young American part-time reporter for a Russian-owned news site, had simply misread a tweet and turned it into an article. No big conspiracy. No manipulation. And, certainly, none of that has anything to do with Wikileaks (amusingly, Eichenwald then deleted all his tweets claiming proof that Wikileaks was a part of this conspiracy, and apparently tried to silence the young reporter by telling him he'd try to get him a job elsewhere).
Perhaps even more ridiculous is DNC chair Donna Brazile trying to deny any information from any email released by Wikileaks, including one specific one that she sent, apparently revealing a CNN primary debate question to the Clinton campaign prior to the debate (Brazile worked as a commentator on CNN at the time). This video is absolutely cringeworthy, starting at about five and a half minutes into this video. Brazile tries to avoid answering the question about sending debate questions to the Clinton campaign, first barely feigning ignorance of the issue, and then insisting multiple times that the emails are fake/doctored/not verified, and insisting that she did not send the email in question.
Being interviewed by Megyn Kelly, here's how Brazile tries to claim that the emails are not real, but basically comes out with a word salad of nothing, rather than simply admitting that the email is legit.
MEGYN KELLY: You're accused of receiving a debate question whether a CNN town hall where they partnered with TV One that you had this question on March 12th, that verbatim, verbatim was provided by Roland Martin to CNN the next day. How did you get that question, Donna?
DONNA BRAZILE: Well, Kelly, as I play straight up and with you, I did not receive any questions from CNN.
KELLY: Where did you get it?
BRAZILE: First of all, what information are you providing to me that will allow me to see what you're talking about? Everybody's....
KELLY: You've got the Wikileaks showing you messaging the Clinton campaign with the exact wording of a question asked at the March 13th CNN TV One Townhall debate.
BRAZILE: Kelly, Kelly, Kelly. You know, as a Christian woman, I understand persecution, but I will not sit here and be persecuted. Because your information is totally false.
KELLY: I'm getting it from Podesta's email.
BRAZILE: What you're -- well, Podesta's e-mails were stolen. You're so interested and talking about stolen material, you're like a thief that wants to bring into the night the things that you found that was in the gutter. I'm not...
KELLY: Donna. CNN's Jake Tapper came out and said this was unethical. "Someone was unethically helping the Clinton campaign." He said "I love Donna Brazile, but this is very, very upsetting. My understanding is that the email..."
BRAZILE: I love CNN
KELLY: This is Jake Tapper: 'My understanding is that the e-mails came from Roland Martin or someone around Roland Martin." He said "this is very upsetting and troubling." That's your own colleague at CNN. It's not Megyn Kelly. Who gave you that question?
BRAZILE: Megyn, once again, I said it and I said it on the record and I'll say it on the record and I'll keep saying it on the record. I am not going to try to validate falsified information. I have my documents. I have my files. Thank God I have not had my personal e-mails ripped off from me and stolen and given to some criminals to come back altered. I have my records and files. And as i said repeatedly, CNN, in the 14 years I was associated with CNN, I've never received anything. If I had a blank piece of paper, that would basically be the end of this conversation. I never get documents from CNN. Period.
KELLY (eye roll): Your email to the Clinton campaign said 'sometimes I get the questions in advance.'
BRAZILE: Uh, ma'am. Y'know. You know what...
KELLY: And CNN is saying Roland Martin gave them to you. Or someone at TV One. And they were provided to Hillary before that town hall.
BRAZILE: Well anybody who knows me... and... and... and there are a number of your colleagues as well. They know me very well. I know how I play it. I know what I do before every debate. I know what I do before every show -- even this show. I do my homework. I communicate. I talk.
KELLY: I understand.
BRAZILE: But I just, once again, let you know that... as far as I know that... that... that CNN has never provided me with questions. Absolutely. Ever. Nada. Sorry.
KELLY: Well, when you said "from time to time I get the questions in advance," what were you referring to? Because in that email you offered the exact question that one of the moderators, Roland Martin, then proposed the next day.
BRAZILE: So. So. My, my, my reference back to you, ma'am, with all respect -- and I respect you greatly --
KELLY: And I respect you too.
BRAZILE: The... the... the validity of those emails -- if I can only tell you one things, because you know, this whole episode is under criminal investigation -- but I can just tell you one thing: a lot of those emails, I would not give them the time of the day. I've seen so many doctored emails. I've seen things that come from me at two in the morning, that I don't even send. There are several email addresses that I once used, and I'm so sorry that we... these have not been verified. This is... nobody will. This is...
KELLY: I got it.
BRAZILE: This is under investigation. And let me just tell you something. If there's anything that I have, I will share. I don't have an agenda to smear anybody...
KELLY: Alright. I've got to run because we have another guest waiting...
Okay, so, here's the problem. She did send the email. And it's verified. Graham proves it in his post. The trick is DKIM (DomainKeys Identified Mail) signatures. DKIM was a system set up a while back to try to fight spam by cryptographically proving that the account that says it sent the mail actually sent the email in question. Not all email systems use DKIM, but hillaryclinton.com does use it, which is great for transparency, but bad for Donna Brazile.
Graham looked up that email in particular and found that it validates, using a Thunderbird add-on to check these things:
Downloading the raw email from WikiLeaks and opening in Thunderbird, with the addon, I get the following verification that the email is valid. Specifically, it validates that the HillaryClinton.com sent precisely this content, with this subject, on that date.
Let's see what happens when somebody tries to doctor the email. In the following, I added "MAKE AMERICA GREAT AGAIN" to the top of the email.
As you can see, we've proven that DKIM will indeed detect if anybody has "doctored" or "falsified" this email.
Graham also offered one whole bitcoin to anyone who can forge an email that still validates correctly under this method to show his confidence that the emails are verified as actually sent as is, despite Brazile's wacky performance.
Of course, the Clinton campaign keeps insisting that the emails are doctored, but fails to show any proof. Here's the campaign's Chief Strategist, Joel Benenson, saying many are not authentic:
BENENSON: Well, first of all, I'll tell you something, I haven't spent a lot of time reading through WikiLeaks e-mails.
But I will tell you this, what we know is that many are not authentic. We know that this is a hack, 17 of Russians -- no, because these e-mails, we have no idea whether they are authentic or not or whether they've been tampered with once the Russians, which 17 American intelligence agencies say are responsible for these hackings, have been manipulated. I have seen things -- I'm not going to go into details --
STEPHANOPOULOS: But you're not suggesting that those are --
BENENSON: They may well be. I don't know. I know I've seen things that aren't authentic, that we know aren't authentic. And it's not surprising. What's ridiculous about this whole conversation is that 17 intelligence agencies have said the Russians are responsible for this. Donald Trump refuses to accept it, refuses to condemn them.
Benenson is full of shit. Again, whether or not you like or dislike Wikileaks, or question Assange's motives, there's a simple fact here: the documents it's released have not been shown to be false, faked, doctored or inauthentic at all. And it's possible to verify many of them, and some have even written scripts to verify them in bulk.
The Clinton campaign, as it so often does, is making things worse for itself by being stupid. It's trying to cover up legitimate information, and the coverup always comes across worse than the original actions. Just admit that these emails are legit and move on. Lying about it is not a good look, even if that's just the way things go these days in politics.
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 Usenet.com. 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.
We've talked a lot about Donald Trump and his ridiculous views on defamation and the First Amendment -- including his penchant for threateningdefamationlawsuitsagainst basically everyone who says something he dislikes. He rarely follows through, though he certainly does sue sometimes.
In fact, someone has set up Trump-clock.com 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.
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.
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.
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.
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.
[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.
With the time we spend discussing the scourge of DRM that has invaded the video game industry for some time, it can at times be easy to lose sight of those in the industry who understand just how pointless the whole enterprise is. There are indeed those who understand that DRM has only a minimal impact on piracy numbers, yet stands to have a profound impact on legitimate customers, making the whole thing not only pointless, but actively detrimental to the gaming business. Studios like CD Projekt Red, makers of the Witcher series, and Lab Zero Games, makers of the SkullGirls franchise, have come to the realization that focusing on DRM rather than focusing on making great games and connecting with their fans doesn't make any sense.
And now we can add Polish game studio Flying Wild Hog to the list of developers that get it. The makers of the recently released Shadow Warrior 2 game have indicated that it basically has zero time for DRM for its new game because it's entirely too busy making great games and engaging with its fans. On the Steam forum, one gamer noticed that SW2 did not come with any embedded DRM, such as Denudo, and asked the studio why it wasn't worried about piracy. Flying Wild Hog's Kris Narkowicz replied:
“We don’t support piracy, but currently there isn’t a good way to stop it without hurting our customers. Denuvo means we would have to spend money for making a worse version for our legit customers. It’s like this FBI warning screen on legit movies.”
In a follow-up statement to Kotaku, Kris went even further.
“Any DRM we would have needs to be implemented and tested,” KriS explained to Kotaku. “We prefer to spend resources on making our game the best possible in terms of quality, rather than spending time and money on putting some protection that will not work anyway.”
In other words, the studio could spend time, money, and resources chasing around a white horse in the belief that it was some kind of anti-piracy unicorn, but doing so would be business-stupid. Instead, the studio has chosen to focus on making its game as great as it possibly can while choosing not to implement software within it that might harm that great experience for legitimate customers. Other staff at the studio essentially acknowledged that not including DRM on the game might result in some lost number of sales, but that the cost to the game and legitimate customers made it so that those lost sales didn't matter as much.
They’re banking on the quality of their game earning them enough money to counteract the lack of money coming in from people who’ll just steal their game. “We also believe that if you make a good game, people will buy it,” they said. “Pirates will pirate the game anyway, and if someone wants to use an unchecked version from an unknown source that’s their choice.”
It's always refereshing to hear when a game studio chooses to shrug off the understandable anger that must come along with finding that others are pirating its product to instead focus on what the best course of action for the business actually is: making the best product it can. Altruism doesn't run uniformly through the gaming public, but there are more than enough gamers willing to pay for quality games to make up the difference. It's not a perfect scenario from an ethics standpoint, but given that the alternative is arguably ethically worse in that it almost always carries with it a negative impact to paying customers, this is as good as it gets.
This might be big, depending on how much of this information is passed on to the general public, rather than delivered ex parte or under seal. Joseph Cox of Vice/Motherboard was the first to snag this ruling [PDF] by a Washington district court judge ordering the FBI to turn over tons of info about the NIT it deployed in the Playpen child porn investigation.
As we're already aware, the NIT was deployed by the FBI in Virginia but obtained identifying information about Tor-cloaked site visitors not just all over this country, but all over the world. The motion to compel discovery asked for several details about the NIT and its deployment and most of them have been granted.
Here's the full list (with additional commentary):
1. All records related to the Government’s review and approval of Operation Pacifier.
The Court has taken this discovery request under advisement. An order is soon forthcoming.
2. Copies of any reports made to the National Center for Missing and Exploited Children (NCMEC) regarding child pornography posted on the Playpen web site.
Defendants’ motions are granted.
3. Copies of any notifications that were sent to victims by the Government for obtaining restitution related to images that were posted on, or distributed from, the Playpen web site.
Defendants’ motions are granted.
4. The number of new images and videos (i.e. content not previously identified by NCMEC) that was posted on the site between February 20, 2015 and March 5, 2015.
Defendants’ motions are granted.
(This information -- whether or not actually useful in suppression motions -- should at least provide some insight into how much additional child porn made its way to site visitors as a result of the FBI's decision to seize [and act as administrators of] the server, rather than shut it down. Information obtained in other court cases suggests the FBI not only acted as hosts during the NIT deployment, but actually made the site faster and more responsive.)
5. The names of all agents, contractors or other personnel who assisted with relocating, maintaining and operating Playpen while it was under Government control.
Defendants’ motions are granted.
6. Copies of all notes, emails, reports, postings, etc. related to the maintenance, administration and operation of Playpen between February 20, 2015 and March 5, 2015.
Defendants’ motions are granted.
(Again, this info could confirm whether or not the FBI improved the child porn site's performance during its two-week turn as administrators, as well as provide additional insight into how much child porn distribution was aided and abetted by the agency.)
7. Copies of all legal memoranda, emails and other documents related to the legality of the FBI’s operation of Playpen (and the distribution of child pornography by the Government), including requests for agency/departmental approvals of the undercover operation of Playpen and any communications with Main Justice or the Office of General Counsel at the FBI.
The Court has taken this discovery request under advisement. An order is soon forthcoming.
(This would be the government's legal rationale for running a child porn site rather than shutting it down. Chances are this will remain under seal and is probably FOIA-proof, as most legal guidance documents are.)
8. Copies of all correspondence, referrals and other records indicating whether the exploit used in the Playpen operation has been submitted by the FBI or any other agency to the White House’s Vulnerability Equities Process (VEP) and what, if any, decision was made by the VEP.
The Court has taken this discovery request under advisement. An order is soon forthcoming.
(Little is known about the government's actual handling of the VEP. On one hand, we have public statements which pay lip service to not screwing US companies by hoarding vulnerabilities. On the other hand, we have the exact opposite in practice.)
9. Copies of invoices and other documents for the hosting facility/facilities where the Government operated the Playpen server, the server from which the Government delivered the NIT malware and the server that NIT targets sent their identifying information back to, including documents revealing whether the Government informed the hosting provider(s) that child pornography would be stored in their facility or transmitted over their networks.
Defendants’ motions are granted. To the extent that the Playpen hosting provider was the Government, not a private party, it appears there may not be much discovery responsive to this request.
(There may be nothing here. Or there could be third party hosts involved who were never informed about their participation in the FBI's sting operation. If so, fun times ahead for the US government.)
10. The number of Playpen-related investigations that have been initiated but did not result in criminal charges, beyond the approximately 200 cases now pending across the country.
Defendants’ motions are granted.
(Another can of worms the FBI would probably like to remain closed. According to the government's own arguments in these cases, users would have connected to the site for a single purpose: to engage in criminal activity. A lack of charges would be a surprise and somewhat undermine the government's assertions about the criminal intent of visitors to the site.)
11. The total number of IP addresses and MAC IDs that were seized during the time the FBI was operating Playpen, over and above those related to these approximately 200 pending cases.
Defendants’ motions are granted.
12. The number of IP addresses and MAC IDs obtained during the investigation from foreign computers and the countries in which this data was obtained.
Defendants’ motions are granted.
(These are the potential goldmine. This will show how far-flung the FBI's net actually was, as well as provide more ammo for suppression motions predicated on Rule 41 jurisdictional limitations. The FBI is well aware it can't perform searches outside the jurisdiction covered by the warrant, but it chose to do so anyway. So far, its evidence has mostly held up, thanks to courts deciding suppression isn't the correct remedy, or crediting the FBI for unearned "good faith." The FBI and DOJ are pushing for changes to Rule 41 that eliminate the jurisdictional limits, so it's disingenuous for the agency to claim its agents acted in good faith when securing the warrant.)
This now becomes the Playpen case to watch, even if most of this information is likely to remain in the hands of defense lawyers only. Dismissal and suppression motions will contain references to the content of these documents, however, which will shed more light on the FBI's NIT deployment and its child porn site administration.