by Mike Masnick
Mon, Feb 3rd 2014 8:07pm
by Mike Masnick
Thu, Jan 30th 2014 3:01pm
from the missing-out dept
Fair use is about so much more than that. Fair use has enabled a large part of the internet to thrive, and with it, tremendous opportunities for individuals to communicate. It has also been a key part of what has enabled the entertainment industry to thrive. When people treat fair use as this little "toy" that lets some people "play around" with writing fan fiction or remixing, it really underplays just how important fair use has been to the very core setup of the internet and culture. Without fair use, it would be almost impossible to build a search engine. Without fair use, blogging would be much more risky. Without fair use, a show like the Daily Show would be almost impossible. And yet, no one on the panel seemed to represent this aspect of fair use, focusing instead on just the creative side of things.
Ed Black has a great article detailing much of this, which I'm confident that I can quote because of fair use:
For example, it may be hard to believe, but 30 years ago last week the Supreme Court came one vote from labeling home video a "pirate" technology. Were it not for Justice Stevens' foresight and the fair use doctrine, an entire industry and a generation of technological innovation would have been sacrificed on the altar of copyright protection. (Ironically, home video turned into Hollywood's cash cow less than a decade after movie studios had attempted to strangle it in the crib.)I've talked for a while about how it's wrong to think of fair use as just an "exception or limitation" to copyright -- since it's actually the other way around. Fair use is the public's right. It's part of the right to free speech, where copyright is actually an "exception or limitation" on that right. But in many ways it goes further than that, since fair use has enabled so much great and powerful innovation as well. And yet, all too often, people think of fair use as just this little corner of the copyright world that lets people create mashups and write fan fiction. Those uses are important too -- the expression and culture that comes out of those areas are really quite impressive when you look closely. But it's important not to ignore just how fundamental fair use is to enabling both the tech industry and the entertainment industry to thrive over the years.
The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students' papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).
Of course, fair use benefits industries far beyond the technology sector. While fair use has always been recognized as protecting widely-enjoyed television programming like The Daily Show, The Colbert Report and Saturday Night Live, its significance extends far beyond parody. Just in the last year, the fair use doctrine came to the aid of movie studios, a Broadway musical, a rock band and the NFL, all of whom faced baseless piracy accusations. Woody Allen's Midnight in Paris led to a lawsuit because the actor Owen Wilson quoted nine words from the author William Faulkner. (Yes, you read that right: nine words.) The musical Jersey Boys was sued for including seven seconds of a 1960s TV program. The NFL was sued because online footage from old football games showed brief glimpses of the original Baltimore Ravens logo -- a logo that had been ruled to infringe copyright after the season was played. In each case, courts sided with the defendants and threw out the case on the basis of fair use. That such lawsuits were brought in the first place is a sad commentary on the state of our intellectual property system, but at least judges were able to resort to the fair use doctrine to reject the most absurd claims.
by Mike Masnick
Thu, Jan 30th 2014 11:57am
from the moral-panic-jackpot dept
Years ago, the target was Craigslist because prostitution rings used the site to advertise. The groups who organized this attack celebrated when they finally (based on no legal reason) hounded Craigslist into shutting down certain services, totally oblivious to the fact that this does absolutely nothing to stop prostitution. In fact, smart law enforcement folks realized that rather than blaming the online service providers, working with them would allow them to investigate and arrest lawbreakers. Shutting down those services doesn't lead to stopping any prostitution, it just makes it move elsewhere.
For example, after the attack on Craigslist, many just moved on to Facebook and Backpage. And, now, a breathless article in TheStreet (complete with obnoxious autoplay video! -- you have been warned) talks about the shocking fact that prostitutes also use Twitter. As if this is a surprise.
But, of course, the article comes complete with Congressional idiots grandstanding about how this is a "big problem" for Twitter:
Notified by TheStreet of its investigation that revealed that escort services were using Twitter, Rep. Chris Smith (R., N.J.) urged that Congress investigate. Smith sits on the subcommittee investigating human trafficking, which held hearings Monday on prostitution at sporting events, including this week's Super Bowl in New Jersey.Of course, the way you conduct a "crackdown" is to investigate those who are actually breaking the law: not the tools they use. But, of course, going after prostitutes is a lot less interesting than going after big famous internet companies. So guess who's getting dragged to Congress?
Addressing Ambassador-at-Large Luis CdeBaca of the U.S. State Department's office to monitor and combat human trafficking, Smith asked at the subcommittee hearing that he speak to U.S. Attorney General Eric Holder to initiate a crackdown on Twitter, Backpage, Craigslist and other social media "that are the conduit for this terrible exploitation of women."
Following that meeting, Smith, who serves as chair of the House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights and International Organizations, said he plans to convene a House of Representatives subcommittee hearing later this year, and intends to ask Twitter executives to testify on Capitol Hill to address the issue.Much of the ridiculous TheStreet article focuses on the fact that they're shocked (shocked!) that Twitter hasn't magically found all of the prostitutes using Twitter and killed their accounts. Because, apparently, TheStreet reporter Jonathan Marino thinks that Twitter has staffers who sort through the profiles of all ~700 million active Twitter account holders and can tell which ones are prostitutes and which are not.
"I'm going to look at putting together a hearing to focus on Twitter," Smith said. "We'll look to do a hearing very soon."
by Mike Masnick
Thu, Jan 23rd 2014 1:42pm
from the really-now? dept
And, ridiculously, the USTR continues to play right into the hands of Chinese officials on this front, who must be laughing maniacally every time they see the USTR release one of these reports, giving them even more ammo to slap American companies and promote their own.
But, the USTR report gets even more ridiculous the deeper you read. Matthew Rimmer noticed an insane little tidbit on page 112, in which the USTR talks about how it encourages China to do "spot checks" on libraries to make sure they're obeying US copyright law. I'm not kidding.
In October 2009, the NCA, the Ministry of Education, the Ministry of Culture and the National Anti-Pornography Office issued the Notice on Strengthening Library Protection of Copyright, which directs libraries to strictly adhere to the disciplines of the Copyright Law. The United States welcomed this directive and encouraged China to take steps to enforce this notices, including through unannounced spot checks of libraries and promptly investigating and taking action against web-based enterprise that provide pirated journal articles. Subsequently, at the December 2010 JCCT meeting, China committed to take steps to eradicate piracy of online academic journals, including actions against web-based enterprises.This is quite incredible on multiple levels. First, the very fact that this involves the "National Anti-Pornography Office" should have made it pretty clear that the Chinese recognize what copyright can be used as: a tool for widespread censorship and control. And the people at the USTR are so focused on maximalism that it doesn't even seem to have occurred to them that this is what's going on. In fact, they actually are encouraging the Chinese government to use this as a tool for censorship! Incredible. And incredibly short-sighted.
Then there's this focus on academic journals. As if libraries in China are actually going to pay the insane rates that journals charge? This isn't lost money. Remember, the original purpose of copyright law was to encourage better learning and the wider dissemination of knowledge. And here you have the USTR actively seeking to restrict that, while helping give the Chinese all the justification they need for widespread censorship of the internet.
by Mike Masnick
Fri, Jan 17th 2014 2:00pm
from the how's-that-for-working-closely-with-congress dept
This shows the kind of disdain that the USTR appears to hold Congress in. Congress remains a mere nuisance in the USTR's ongoing efforts to put forth the best agreement possible for a bunch of crony friends who will soon be offering USTR staffers new jobs as lobbyists.
Several committee members said they were puzzled and disappointed that USTR Michael Froman passed on an opportunity to convince some skeptical lawmakers they need to establish Fast Track authority for President Barack Obama’s priority Trans-Pacific Partnership (TPP) agreement.
“I wish they were here,” said Portman, a member of the committee and a former US trade representative under President George W. Bush. “It’s important.”
If the USTR can't even bother to show up to argue for fast track, while arguing how important it is, perhaps it suggests that Congress really ought not to give the USTR that kind of power. So far, the USTR has not been transparent. It has directly lied, repeatedly, to the American public about what it's trying to do, and when given the chance to explain itself to the Senate committee in charge of the very bill it wants to give it more power over the TPP and TTIP/TAFTA, it blows it off.
by Mike Masnick
Thu, Jan 16th 2014 1:52pm
Congressional Reps Ask Bruce Schneier To Explain To Them What The NSA Is Doing, Because The NSA Won't Tell Them
from the look-at-that dept
This morning I spent an hour in a closed room with six Members of Congress: Rep. Logfren, Rep. Sensenbrenner, Rep. Scott, Rep. Goodlate, Rep Thompson, and Rep. Amash. No staffers, no public: just them. Lofgren asked me to brief her and a few Representatives on the NSA. She said that the NSA wasn't forthcoming about their activities, and they wanted me -- as someone with access to the Snowden documents -- to explain to them what the NSA was doing. Of course I'm not going to give details on the meeting, except to say that it was candid and interesting. And that it's extremely freaky that Congress has such a difficult time getting information out of the NSA that they have to ask me. I really want oversight to work better in this country.There's really not much more to be said about that, other than it shows what a complete joke it is for anyone to claim that Congress has real oversight over the NSA. It's great that these Reps would reach out to someone with qualifications like Schneier to have this kind of conversation. It's depressing that such a thing was necessary.
by Tim Cushing
Wed, Jan 15th 2014 3:10pm
from the in-search-of-actual-oversight dept
Hidden in the 1,500+ pages of the $1.1 trillion federal funding bill is a stipulation aimed at giving the NSA's much-heralded oversight some actual oversight. The wording specifically targets the NSA's bulk collection programs, and if passed along with the rest of the bill (which is expected to pass shortly), will be the first Congressional action taken against the agency. (There are many, many more in the pipeline.)
Here's how the accompanying "explanatory statement" breaks it down:
The Director of the National Security Agency (NSA) is directed to provide the following to the congressional intelligence committees, the Senate Committee on the Judiciary, and the House Committee on the Judiciary, not later than 90 days after the enactment of this Act:The agency has been extremely resistant to the notion of quantifying its bulk collection efforts. The "incidental" collection of American data and communications has been discussed at length, but so far, the agency has refused to offer even an estimate at how much "incidental collection" actually occurs. While it has noted how many RAS-approved numbers it actually searches in its Section 215 database, it has not specified how many of those intersect with wholly domestic communications.
1) A report, unclassified to the greatest extent possible, which sets forth for the last five years, on an annual basis, the number of records acquired by the NSA as part of the bulk telephone metadata program authorized by the Foreign Intelligence Surveillance Court, pursuant to section 215 of the USA PATRIOT Act, and the number of such records that have been reviewed by NSA personnel in response to a query of such records. Additionally, this report shall provide, to the greatest extent possible, an estimate of the number of records of United States citizens that have been acquired by NSA as part of the bulk telephone metadata program and the number of such records that have been reviewed by NSA personnel in response to a query.
2) A report, unclassified to the greatest extent possible and with a classified annex if necessary, describing all NSA bulk collection activities, including when such activities began, the cost of such activities, the types of records that have been collected in the past, the types of records that are currently being collected, and any plans for future bulk collection.
3) A report, unclassified to the greatest extent possible and with a classified annex if necessary, listing terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA's telephone metadata program and whether this information could have been promptly obtained by other means.
This stipulation goes further than the 215 program, which would add to the body of knowledge needed for Congressional overseers to provide something closer to actual oversight. Much of what's being collected under other authorities (Section 702, Executive Order 12333) remains somewhat of a mystery. Obviously, the NSA would like it to remain this way, hence its oft-used tactic of purposefully reframing questions about these collections as questions about Section 215.
It's a small push but it does ask for a level of transparency and accountability the NSA hasn't experienced to date. The usual "national security" dodge has lost a lot of its effectiveness over the past several months as it's been repeatedly shown that vast, untargeted metadata collections are next to useless when it comes to preventing terrorist attacks. The other claims that exposing the inner workings will allow the nation's enemies to route around surveillance are equally weak considering the vast amount of documents Ed Snowden has released to journalists. Chances are, the inner workings will be exposed sooner or later. It would be better to get out ahead of the leaks and allow the Congressional oversight to do its job for a change.
The leaks have exposed the NSA's true motivations. It doesn't fear exposure nearly as much as it fears losing any of its surveillance programs, no matter how ineffective they are and how much they add to the problem of too much data.
by Mike Masnick
Tue, Jan 14th 2014 9:38am
from the not-the-end-of-the-world dept
However, on the flip side, we should be equally concerned about the FCC overstepping its bounds and mandate in regulating the internet. Because that opens up the opportunity for the FCC to regulate all sorts of aspects of the internet in dangerous ways. So, this ruling is both good and bad. It stops the FCC from overstepping its bounds... but opens up the opportunity for the telcos to sweep in and try to upset the basic concepts of the internet. It's what happens now that becomes interesting. The court does leave open the possibility that the FCC could use other aspects of its mandate to establish net neutrality rules -- where it has a much more firm legal footing. In other words, the court is telling the FCC basically: you can establish net neutrality rules if you do it correctly.
Separate from that, it's possible that Congress could step in as well -- though the issue of net neutrality in Congress has become partisan, and thus toxic. Of course, in the meantime, it seems likely that the FCC will appeal to the Supreme Court, and there's a decent chance that the Supreme Court will take the case -- though I'd be very, very surprised if the Supreme Court came to a different ruling. The original FCC rule, while well intentioned, definitely stretched the FCC's mandate, and it's no surprise that it's now been slapped down.
by Mike Masnick
Mon, Jan 13th 2014 3:38am
Many In Congress Opposed To Fast Track Authority: An Obsolete Concept For An Obsolete Trade Negotiation
from the get-modern dept
Fast Track procedures would allow the President to sign a potential Trans-Pacific Partnership (TPP) and other free trade agreements before Congress votes to approve them even though the Constitution gives Congress exclusive authority over trade. The process would also guarantee the pacts could come to the floor without giving Members of Congress the opportunity to amend them despite the fact these agreements will include binding obligations that touch upon a wide swath of non-trade policy matters under the authority of Congress.As their statement also notes, "Our constituents did not send us to Washington to ship their jobs overseas, and Congress will not be a rubber stamp for another flawed trade deal that will hang the middle class out to dry."
“For too long, bad trade deals have allowed corporations to ship good American jobs overseas, and wages, benefits, workplace protections and quality of life have all declined as a result,” DeLauro, Miller and Slaughter said in a joint statement. “That is why there is strong bipartisan opposition to enabling the Executive Branch to ram through far-reaching, secretly negotiated trade deals like the TPP that extend well beyond traditional trade matters.
They're not the only ones in the House to be concerned. A number of other powerful House members are not at all happy about the proposal and looking to kill it or change it -- including Nancy Pelosi. Then there's also Rep. Sander Levin who has spoken out against fast track. As that article notes, without Levin's support, Fast Track may be in trouble.
An even stronger condemnation of the attempt comes from the Senate side, where Rep. Levin's younger brother, Senator Carl Levin debunks the talking point we've already been hearing from copyright maximalist lobbyists, that "fast track authority has been used for decades and it's no big deal." As Levin points out, in the past, fast track was used for very different kinds of trade agreements. Narrow ones that were actually about trade, not the kind of monstrosity like the TPP which has little to do with trade, and plenty to do with changing laws around the globe.
The 2002 TPA became utilized mostly in negotiating single nation trade agreements affecting a relatively small portion of our economy. What the U.S is now engaged in is negotiating major multi-party agreements, including with 11 Pacific nations and with the entire European Union, affecting a huge percentage of the U.S. and the global economy.Levin further points out that without real transparency, any fast track authority should be a nonstarter:
USTR must make available to all Members of Congress and all staff with the necessary security clearance the text of the negotiations, including the proposals of our trading partners. We must also have a much more effective stakeholder advisory committee process than we do today so that the sectoral and functional advisory committees are representative of all industry, labor, agricultural, or services interests (including small business interests) in the sector or functional areas concerned. These private sector advisory committees must have access to the negotiating text. Finally, a new TPA will require USTR to publicly release summaries of its negotiating proposals and to provide opportunities for public comment.As we noted in our original post, not a single Democrat was willing to co-sponsor the House version of the bill that their own President wants. And reports are suggesting that this may scuttle the whole thing, as Republicans begin to wonder why they're out there not only helping President Obama against his own party, but relinquishing Congress's own Constitutional authority in the process. It's good to see a large number of folks in Congress suddenly wondering why they should be giving up their oversight over international trade on an agreement so big.
by Mike Masnick
Fri, Jan 10th 2014 10:34am
from the don't-buy-it dept
The USTR's statement on the fast track proposal is full of lies, half-truths and misleading statements. Let's look at a few.
TPA does not provide new power to the Executive Branch.Hell yes, it does. Trade Promotion Authority gives the power of regulating foreign commerce directly to the USTR, rather than Congress. It allows the USTR to negotiate a "final" agreement with other countries, which Congress cannot seek to change, amend or fix. Instead, Congress can only give a simple "yes or no" vote on what the USTR comes back with. Without TPA, the USTR actually needs to engage Congress, and win its support and approval on everything within the agreement. That gives Congress -- which is supposed to represent the public -- a chance to make sure that (as the USTR has shown a proclivity to do) the agreement is not filled with ridiculous "gifts" for cronies and friends at the expense of the public and disruptive innovation.
TPA is a legislative procedure, written by Congress, through which Congress defines U.S. negotiating objectives and spells out a detailed oversight and consultation process for during trade negotiations.If TPA didn't tie Congress' own hands, the USTR might have a point here. But it's not true. While the TPA bill does officially "define" the negotiating objectives, those objectives listed in the current bill are basically the USTR's own list of what it's working on, reprinted by friends in Congress. And, honestly, how is it possible that it "spells out detailed oversight," when what the bill really does is make sure that the USTR can give Congress whatever it comes up with and say "take it or leave it"? Without TPA, the USTR actually has to go convince Congress that what it's been proposing (secretly and with no public review) is actually in the public interest.
Under TPA, Congress retains the authority to review and decide whether any proposed U.S. trade agreement will be implemented.Misleading at best. Insulting to anyone with at least half a brain. Congress has significantly less authority under TPA to review and decide any trade agreement. That's because without TPA, Congress can review and question different aspects, or introduce amendments and fixes to all the stuff that the USTR screwed up. With TPA, Congress can only give an up or down vote on the entire package. That means, as long as the USTR includes enough "pork" to outweigh the crap for the majority of Congress, it can get through a ton of dangerous proposals -- like those we've already seen in the still officially "secret" intellectual property chapter.
TPA ENSURES TRANSPARENCY AND PUBLIC ENGAGEMENT IN TRADEIt's tough to read this and not laugh. This is an out and out lie. And it's a direct insult on the public. Remember, the TPP negotiations have been going on for years, and we still don't officially know what's in the TPP, other than what's been leaked. The idea that the public is "closely involved" is an insult. The public is not involved at all, entirely by the choice of the USTR, which has chosen to keep them out. As for Congress? They're also mostly in the dark. Yes, elected officials can go see the negotiating text, but they have to go to the USTR's offices, and they're not allowed to bring any staffers, make any copies or take any notes.
TPA bills establish consultation and notification requirements for the President to follow throughout the trade agreement negotiation process – ensuring that Congress, stakeholders and the public are closely involved before, during and after the conclusion of trade agreement negotiations.
The USTR keeps pretending that because it will "meet with anyone who asks" that it's being transparent. But transparency is not about listening to whoever knocks on your door. It's about the other direction: it's about providing information out to the public -- something that the USTR has absolutely refused to do. The TPA does absolutely nothing to increase transparency, and actually gives the USTR fewer incentives to be transparent because now it knows there's no real oversight any more.
The USTR is flat out lying here, and it's a disgrace.
In addition to our congressionally mandated committees of industry and public sector advisers , the United States consults with all interested stakeholders at each trade agreement negotiating round and in between. We do this to share information and get views that make the negotiated product better. For TPP, these stakeholders have included representatives from academia, labor unions, the private sector, and non-governmental organizations. Under TPA, this activity would continue and be strengthened.Misleading again. Yes, the USTR "shares" information, but only with a very small list of advisors -- who almost exclusively come from old legacy businesses. Everyone else? The USTR's response is to give them the middle finger. The claim about consulting with "interested stakeholders" at each round is also misleading. As we've covered in the past, at many (though not all) of the negotiating rounds, there would be an hour or two where "stakeholders" would have the opportunity to sit at a table and hope negotiators came to talk to them. Sometimes this would be done far away and at times when negotiators had better things to do -- like eat lunch. Sometimes stakeholders were allowed to give presentations, but with no guarantee that any negotiators would attend.
As for using those meetings to "share information" -- that's again highly misleading. Again, the USTR has been negotiating the TPP for years and still has not released any information at all on what's in it. What we know is what's been leaked out, and that little that's been leaked shows exactly why the USTR fears transparency and fears the public: because they're crafting an agreement designed to protect a few corporate interests at the expense of just about everyone else.
An honest an forthright USTR wouldn't fear the public, and it wouldn't insult and lie to the public as is happening here. The USTR is trying to pull a fast one over on the American public. It's negotiating an agreement in secret, pretending that it's being transparent, and then encouraging Congress to give up its right to review the agreement (without even seeing it), with insulting promises that by doing so, that will create more transparency.