Back in April, we wrote about an interesting lawsuit filed over excessive fees for PACER, the federal court system's electronic records system. If you're not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is. Not only does it look like it was designed and built in 1998, the court system leverages ridiculous fees for everything you do in it. It's officially 10 cents per page (with a limit of $3 max per document), but that's not just per page you download of court documents, but everything. Do a search? That'll be at least 10 cents and possibly more if the magic PACER system decides the results are long enough. Look at a docket of a court case? Better hope it's not one with hundreds of filings, because just opening the docket can cost you $3 -- and that's before downloading any documents. As we pointed out years ago, the fees charged for PACER appear to be illegal. The law, 28 USC 123, that allows the court system to charge for PACER limits the fees to being "reasonable" -- and that means, among other things, that the fees are only used for the upkeep of PACER, and not for other stuff.

But that's not true. PACER brings in a ton of money and most of it is used for other things within the court system (and very little of it seems to be earmarked for actually upgrading PACER). This is a huge problem if you believe in the rule of law, and the idea that people should be able to read the law. Because the law is much more than the official regulations -- it also includes case law. And PACER has made it so that the relevant caselaw can often be inaccessible and expensive. That's crazy.

So the lawsuit that was filed earlier this year was interesting -- and of course the federal government tried to get it tossed out. Thankfully, the judge in the case, Ellen Segal Huevelle, has rejected that request and allowed the case to move forward. The government objected on two grounds: first, that a similar, but slightly different case, had also been filed by someone else -- and (more importantly) that the lawsuit failed to state a claim, because they didn't first complain to the PACER operators. Judge Huevelle doesn't buy either argument. About the two separate cases, the judge notes that the two cases are about two different things. This case is about how PACER charges too much per page under the law. The other case -- Fisher v. the United States -- (which, yes, we also wrote about) is about how PACER overcharges people when they just look at a docket. That is, the claim is that because PACER just considers every 4,320 bytes to be "a page" it is overcharging people, since dockets that are many fewer pages are being charged at higher rates. As Huevelle notes, these are different issues:

According to the class action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of extracted bytes in a docket report, resulting in an overcharge to users.”... In other words, Fisher claims an error in the application of the PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the legality of the fee schedule. These are separate issues, and a finding of liability in one case would have no impact on liability in the other case. Therefore, the Court will not dismiss the suit based on the first-to-file rule.

Personally, I think both cases have merit, but they are definitely on different issues.

As for the failure to state a claim, again, the court doesn't buy it. Here, the government argued that because when you sign up for a PACER account, you agree to all the fine print in the user agreement, and part of that says that if there are billing "errors" you "must alert the PACER Service Center." Thus, our government lawyers argue, it means that because the plaintiffs here didn't claim "errors" in their bill to the PACER Service Center, there is no legal argument here. This is a ridiculous argument. And the court recognizes that. First it notes that in the other case mentioned above (the Fisher case), the courts have already said that clause does not require you to go to PACER before suing, but more importantly, notes that this case isn't about billing errors at all. It's about whether or not the bills are legal at all:

This Court need not reach those legal issues because, unlike Fisher, plaintiffs here do not claim a billing error. Therefore, even if the notification requirement constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality of the fee schedule. Likewise, even if users were required to exhaust their claims for billing errors, that requirement would not apply to the claim in this case. In sum, the PACER policy statement provides no basis for dismissing this suit.

At this point, there's still plenty to go on this case -- and this is just a procedural step along the way. But it's nice to see that the court recognizes the government's ridiculous arguments for what they are.

We've noted for some time how cable providers over the last few years have added a "broadcast TV" fee to customer bills. Such a fee, which simply takes a part of the cost of programming and buries it below the line, lets cable providers advertise one rate, then hit customers with a higher bill. It's false advertising, but you'd be hard pressed to find a regulator anywhere in North America willing to tackle the problem. When Comcast was criticized for the practice two years ago, the company claimed that burying a sneaky new fee below the line was just the cable company's way of being "transparent" with its customers:

"Beginning in 2014, we will itemize a portion of broadcast retransmission costs as a separate line item to be more transparent with our customers about the factors that drive price changes," he said. “In 2014, we will not increase the price of Limited Basic or Digital Preferred video service, and adjustments to other video service prices will be lower than they would have been without the Broadcast TV Fee."

While it's true broadcasters impose often unreasonable rate hikes on cable companies, the cost of programming is just one of several costs of doing business, and hiding these costs when listing your prices is the complete opposite of being transparent with your user base. Since the fee began popping up in 2014, some cable companies have as much as tripled the fee, which can now be as much as $6 to $8 per customer, per month.

Fast forward to this month when Charter (and now Charter-owned Time Warner Cable) was sued for the practice. The plaintiff in question wasn't asking for monetary damages; they simply wanted to highlight how an estimated 20% of Charter's revenues are now thanks to a practice that lets the cable company "deceive its customers by advertising and promising a lower price while actually charging a higher price." Charter has finally responded to the suit and, like Comcast, is actually claiming that it's misleading its customers for their own benefit:

"Our customer friendly approach includes simplified pricing and packaging with no data caps, no modem fee, no early termination fee and no separate USF [Universal Service Fund] fee. We provide simple to understand bills and want our customers to understand what they are paying for, including the skyrocketing cost of broadcast channels."

Right, but the lack of data caps is because the FCC banned them for seven years as a merger condition. And while Charter is one of the only cable ISPs that rolls the cost of renting a modem into the overall cost of service, breaking out the broadcast TV fee is the exact opposite of that. Hiding a part of your costs outside of the advertised price, then bumping that fee 300% in just a few years, remains false advertising and misleading jackassery by any measure. Leave it the cable industry to try and argue that intentionally misleading you into thinking you're not getting a rate hike this year is some kind of favor.

For some time now broadband providers have taken a page out of the banking playbook and hitting consumers with sneaky, below-the-line fees for TV and broadband service. Whether it's the use of "regulatory recovery fee" (a bogus fee designed to sound like it's government-mandated to misdirect blame) or an entirely pointless and nonsensical fee like CenturyLink's "Internet Cost Recovery Fee," these surcharges exist for one purpose: they let the ISP advertise one price, then charge something dramatically different.

You'd be hard pressed to find any regulator willing to crack down on this practice, leaving a rotating crop of lawsuits as the closest ISPs get to seeing actual punishment for such behavior. A few years ago Time Warner Cable was sued for false advertising and deceptive business practices after promotional rates wound up being significantly larger once the customer bill came due. While that suit still stumbles forward, Time Warner Cable (and new owner Charter) have just been hit with another, similar suit, this time more specifically focused on the company's use of "broadcast TV fees" and regional sports network fees.

The plaintiff in this case isn't seeking any monetary damages; the complaint itself going to great lengths (pdf) to point out how these kinds of deceptive charges now account for more than 20% of Charter's revenues. The case spends a lot of time focusing on the now-industry-standard "broadcast TV fee," which tries to take the cost of programming and bury a portion of it below the line:

"In March 2014, TWC began utilizing a shady backdoor way to increase prices to its prospective and current television service subscribers, while continuing to advertise and promise the same flat lower monthly rates for its service plans. Rather than implementing a top-line price increase for its advertised television service or bundled service plans - which would have been noticed by its prospective and current customers - TWC instead kept the advertised price the same and hid the price increase in a newly invented and inadequately disclosed “Broadcast TV Fee.”

You might recall that Comcast, when also sued for this exact same fee, tried to claim that taking the cost of business and hiding it below the line was just its attempt at being "transparent" with the company's customers. And of course once this fee is implemented it quickly soars — in Time Warner Cable's case having tripled in just three years to an additional $6.05 per month. These fees not only let companies falsely advertise a lower price, it also allows them to falsely crow about how they haven't raised rates in "X" years, even if they're technically raising rates pretty much constantly.

And while the FCC had been pondering a "nutrition label" for broadband & TV services that would have required ISPs be more clear about pricing, that program was voluntary and, like so many recent FCC initiatives, isn't particularly likely to see much attention under a Trump Presidency.

In an unpublished opinion, the Ninth Circuit Appeals Court has upheld awarded fees in an anti-SLAPP case.

Anti-SLAPP attorney fees awarded to a newspaper conglomerate as part of its legal battle with an Iranian-American attorney will stand, the Ninth Circuit ruled.

Shahrokh Mireskandari is a former partner in London firm Dean & Dean but was disbarred in England after an investigation by the Solicitors Regulatory Authority suggested that he was involved in a fraudulent telemarketing scheme.

Mireskandari claims the investigation was prompted by his efforts to prove that the Authority investigates minority attorneys more vigorously than white ones.

However, according to articles published by the British tabloid the Daily Mail — which is owned by Associated Newspapers (now known as DMG Media) — Mireskandari obtained his law qualifications from a mail-drop university in Hawaii and ran a telemarketing scam that misled people into believing they had won vacations.

Obviously unhappy with this portrayal, Mireskandari sued. And failed. The paper was mostly successful with its motion to dismiss. Anything left undecided by the lower court's decision is moot now because Mireskandari voluntarily dismissed his lawsuit, presumably because it was apparent he wouldn't win.

Both parties appealed the decision. The paper was looking for more fees to be awarded and Mireskandari was, unsurprisingly, hoping to mitigate the financial damage he'd inflicted on himself. Fortunately, the appeals court [PDF] has upheld the original fee shift.

Mireskandari asserts that the district court abused its discretion when it awarded the anti-SLAPP attorney’s fees against him because ANL did not succeed in striking all of his claims pursuant to its anti-SLAPP motion, and because the fees are unreasonably large. Of course, the mere fact that Mireskandari has now dismissed the action does not affect ANL’s right to recover appropriate fees, but the award is subject to the trial court’s broad discretion, and must be reasonable in amount.

This is the important part of this decision. To allow plaintiffs to simply abandon disingenuous lawsuits would undermine the aim of anti-SLAPP laws. This tactic, of course, isn't solely limited to these types of lawsuits. We've seen no less than the US government voluntarily dismiss cases without prejudice (leaving it the option to try again later) in hopes of preventing legal fees from being awarded. In some cases, plaintiffs have gotten away with this. Voluntarily dismissing a lawsuit that a plaintiff appears destined to lose allows legal bullies to force defendants to spend large amounts of time and money defending themselves while preserving the plaintiff's option to walk away before being ordered to compensate the opposing party.

No such luck for Mireskandari.

[W]e cannot say that the fee award was unreasonably large under the circumstances. The district court reduced ANL’s fee award by fifteen percent across the board because it determined that there was some overbilling. When properly explained, that approach is satisfactory. See Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The district court carefully delineated its reasoning in deciding that a reduction was required. Overall, it said enough to allow our review of its exercise of discretion.

Not only that, but Mireskandari is still personally responsible for previous litigation misadventures.

Mireskandari also asserts that the district court erred when it imposed sanctions upon him for his violation of the court’s scheduling and other pretrial orders. See Fed. R. Civ. P. 16(f)(1)(c), 16(f)(2). He argues that once he dismissed the complaint, sanctions for his past breaches of the district court’s orders were improper. We see no justification for holding that a voluntary dismissal precludes issuance of a sanctions order.

With this failed appeal, Mireskandari is on the hook for legal fees in multiple nations.

A bogus lawyer who was ordered to pay £1.4million in legal costs after being exposed by the Daily Mail and then struck off has been ordered to pay a further massive sum after abandoning an appeal.

Shahrokh Mireskandari, 53, has been given until April 4 to pay more than £230,000 in additional costs after being condemned by a leading judge for 'wholly abusive, unreasonable and manipulative conduct', including attempting to get the appeal hearing adjourned.

And his own legal bills are likely impressive in their own right.

Mireskandari was represented by 17 barristers at the misconduct hearing, but panel chairman Jacqueline Devonish said that allegations of dishonesty had been proved.

Courthouse News also reports that Mireskandari is listed as the plaintiff in seven related US lawsuits -- all of them filed within the last five years. There's nothing quite like quitting (at least once) while you're seriously behind.

In addition to vanilla price hikes and usage caps and overage penalties, ISPs have spent the last few years borrowing a tactic from the banking industry to covertly jack up the advertised price of broadband service: the completely nonsensical hidden fee. From CenturyLink's $2 per month "Internet Cost Recovery Fee" to Fairpoint's $3 per month "Broadband Cost Recovery Fee," such fees usually just hide some of the cost of doing business below the line, letting an ISP advertise one price, then charge something quite different at the end of the month.

Encouraged by the fact that the FCC can't be bothered to police this behavior, a few years ago Comcast began charging its cable customers a "Broadcast TV fee." At the time, Comcast proudly proclaimed it was just being "transparent" by taking a portion of the retransmission fees paid to broadcasters and putting it below the line:

"Beginning in 2014, we will itemize a portion of broadcast retransmission costs as a separate line item to be more transparent with our customers about the factors that drive price changes," he said. “In 2014, we will not increase the price of Limited Basic or Digital Preferred video service, and adjustments to other video service prices will be lower than they would have been without the Broadcast TV Fee."

The problem with this logic is two fold. One, the money Comcast pays to broadcasters for programming is the cost of doing business as a cable company and should be included in the overall bill. Two, this is effectively little more than Comcast advertising a lower rate, only to shock users with a higher bill. It's false advertising, which is about as far from being "transparent" with consumers as you can get. Yet again, you'd be hard pressed to see the FCC so much as mention this sort of behavior, despite occasional, breathless announcements that the regulator is very concerned about transparency in the cable and broadband sector.

Fast forward to this week, when eight plaintiffs filed a class action lawsuit against the cable giant alleging consumer fraud, unfair competition, unjust enrichment and breach of contract for trying to covertly raise rates while the users were supposed to be under a locked-in rate:

"Lead plaintiff Dan Adkins, of California, says Comcast started using "a shady backdoor way to increase prices" in January 2014. He says the company added a "newly invented" Broadcast TV fee to cable bills without clearly disclosing the price hike to customers or updating its advertisements to reflect the new prices. "Comcast not only charged the fee to new customers, but also added the charge to the bills of existing customers in violation of their contracts which had promised a flat monthly rate for the term of the contract," Adkins says in the 79-page complaint."

Like all Comcast pricing, the lawsuit also points out that Comcast has relentlessly raised the fee from $1.50 when introduced, to $6.50 per month this year, a 333% increase in just three years. And while FCC data makes it clear that programming retransmission fees are skyrocketing, again -- that's the cost of doing business as a cable company (also remember that Comcast NBC Universal is also a broadcaster). The lawsuit is also quick to point out that Comcast is among several cable companies that began charging regional sports fees last year. In Comcast's case (as the owner of Comcast Sportsnet), the lawsuit notes how that fee was also bumped by 350% in just a few years, from $1.00 to $4.50 per month.

Trying to mislead customers by advertising one rate -- then socking them with a notably higher bill -- doesn't seem like the actions of a company that repeatedly insists it's dedicated to fixing some of the worst customer satisfaction ratings of any company, in any industry in America.

We're still pretty skeptical about paywalls for most newspapers, because they really tend to limit the audience for your offering, and limit people sharing that content as well (which is pretty important for growing your audience these days). But, some newspapers have really embraced them, including the Washington Post, which lately has ramped up its paywall efforts. And, apparently with that, come sneaky fees. First noticed by an editor at the WSJ (another paywall site, though one that has been designed to be much more porous), Tim Hanrahan, it appears that the Washington Post now has an "activation fee" to subscribe to get around the paywall: Of course, we've been reporting on how telcos and broadband providers have made an entire (large!) business out of sneaking in bogus extra fees for well over a decade. As we noted back then, many of these tack-on fees are really so that the service provider can advertise much lower fees than they're actually charging. It certainly feels like misleading advertising, though the FTC doesn't seem that interested in getting involved.

Of course, we also wondered, all the way back in 2004, when these kinds of bogus fees would start spreading to other businesses.

"Perhaps other companies should get into this game as well. Want a pizza pie? It's just $3, but there's a $3.50 "crust fee," a $9.38 "oven fee," a $4.50 "service fee," and a $2.18 "cleanup fee." Plus tax."

Not too many other businesses have gone down that road... but I guess the Washington Post has decided to leap in head first.

A few years back, we noted how AT&T had begun charging broadband users a significant premium if they wanted to opt out of the company's Internet Essentials advertising program. Under that program, AT&T uses deep packet inspection to track consumer browsing behavior around the Internet -- down to the second. By default, AT&T users are opted in to the program. If they want to opt out of this data collection, consumers need to not only navigate a confusing array of options, but they also need to pay $44 to $62 more per month. AT&T, in typical fashion, has actually claimed this is a "discount."

With the FCC's Title II and net neutrality rules upheld, the agency is now considering new basic broadband privacy protections primarily focused on two things: ensuring ISPs properly disclose what's being collected and sold, and ensuring that ISPs provide customers with clear, working opt-out tools. But the agency is also considering banning ISPs from turning your privacy into an expensive luxury option.

Needless to say, Comcast isn't too pleased with this decision. In a new filing with the FCC (pdf) documenting a meeting at the agency, everybody's least liked cable company argues that stopping them from charging more for privacy would, amusingly, hurt consumers by making services more expensive:

"We also urged that the Commission allow business models offering discounts or other value to consumers in exchange for allowing ISPs to use their data. As Comcast and others have argued, the FCC has no authority to prohibit or limit these types of programs. Moreover, such a prohibition would harm consumers by, among other things, depriving them of lower-priced offerings, and as FTC Commissioner Ohlhausen points out, “such a ban may prohibit ad supported broadband services and thereby eliminate a way to increase broadband adoption."

Yes, that's Comcast actually trying to argue that charging customers more money for privacy is a good thing because it will lower rates and improve broadband adoption. Except as we all know, it's the lack of competition in the broadband space that sets broadband pricing and adoption. And there's yet to be an ISP that has seriously embraced the idea of offering a lower-priced service if consumers agree to have their behavior monetized. All AT&T is doing is taking an already expensive broadband service and tacking a very steep privacy surcharge on top of it.

In addition to trying to argue that the FCC doesn't have the authority to police such behavior (not true, it's simply updating existing Title II privacy rules governing phone network CPNI and applying them to broadband), Comcast said that making privacy a luxury option is simply a "bargained-for exchange of information for service":

"A bargained-for exchange of information for service is a perfectly acceptable and widely used model throughout the U.S. economy, including the Internet ecosystem, and is consistent with decades of legal precedent and policy goals related to consumer protection and privacy."

Again though, the implementation of this idea at AT&T is unique because in the broadband market, users can't switch providers if they don't like their privacy practices. Meanwhile, AT&T not only makes opting out expensive, it makes it incredibly cumbersome and confusing -- ensuring that the least number of users actually take the option. These ISPs consistently argue that they should be treated just like Google and Facebook when it comes to privacy regulations, intentionally ignoring the lack of competition in last mile broadband.

As they push harder into content and ads, Comcast, AT&T, and Verizon have all repeatedly tried to argue that there should be absolutely no privacy rules governing broadband because they can self-regulate in the absence of meaningful competition. But as we saw when Verizon was busted for covertly modifying wireless packets to track consumers (one of the things that drove the FCC to take this route to begin with), it's abundantly clear that's simply not the case.

You may recall the Kirtsaeng case that we covered a few years back, in which a student, Sudap Kirtsaeng, had been sued for copyright infringement by publishing giant John Wiley for buying English-language textbooks in Thailand (that were cheap) and then reselling them to students in the US. It was a classic arbitrage situation. Wiley insisted that this was infringing, while Kirtsaeng pointed to the First Sale doctrine, allowing people to resell physical products they've legally purchased, even if they include copyright-covered content. Wiley's argument against first sale is that it only applied to content that was "legally made under this title." Thus, since the textbooks were made in Thailand and not under US copyright law, First Sale didn't apply. The Supreme Court, thankfully, rejected that argument 6 to 3, and said that first sale does apply. That was good.

The case then went back to the lower courts where Kirtsaeng sought to have Wiley pay his legal fees. The lower court and the appeals court both rejected this request, arguing that the standard for assigning attorneys' fees in copyright cases was whether or not the plaintiff bringing the case had an "objectively reasonable" argument -- and noting that with 3 of the 9 Justices eventually siding with Wiley, the case was likely "objectively reasonable," even if it failed in the end. This argument also reached the Supreme Court and on Thursday, the Justices decided to tweak the standard.

Very similar to the case it decided earlier in the week concerning patent damages (and, in fact, it cites that case in this ruling), the Supreme Court rejects the purely "objectively reasonable" standard test as being too "rigid." It's pretty clear that the court thinks that lower courts should have some leeway in determining the appropriate remedies, rather than sticking to a set of strict guidelines.

All of that said, objective reasonableness can be only an important factor in assessing fee applications—not the controlling one. As we recognized in Fogerty, §505 confers broad discretion on district courts and, in deciding whether to fee-shift, they must take into account a range of considerations beyond the reasonableness of litigating positions.... That means in any given case a court may award fees even though the losing party offered reasonable arguments (or, conversely, deny fees even though the losing party made unreasonable ones). For example, a court may order fee-shifting because of a party’s litigation misconduct, whatever the reasonableness of his claims or defenses.... Or a court may do so to deter repeated instances of copyright infringement or overaggressive assertions of copyright claims, again even if the losing position was reasonable in a particular case. See, e.g., Bridgeport Music, Inc. v. WB Music Corp., 520 F. 3d 588, 593–595 (CA6 2008) (awarding fees against a copyright holder who filed hundreds of suits on an over-broad legal theory, including in a subset of cases in which it was objectively reasonable). Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals.

Based on this, the court sent the case back down to the lower court to reconsider, since it originally rejected the request for fees by saying the original claims were "objectively reasonable." So now the court has to consider "other stuff" not clearly laid out by the Supreme Court to see if it could award attorneys' fees for other reasons -- such as the fact that the case was useful in settling an important, but until then, unsettled bit of law: whether or not first sale applied to foreign made goods.

This is probably, mostly, a good thing. Rigid tests can fail in unique circumstances, so granting flexibility is good. But of course, there's also a downside to flexibility, in that it leads to greater uncertainty, and that may scare off certain worthwhile activities. Either way, the court seems to have made the right decision here, and now Kirtsaeng gets another shot at getting attorneys' fees from Wiley.

The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall.

Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration.

The Department of Defense has fought this the whole way. It wanted a clear-cut delineation between students and staff for reasons only it comprehends, as that would mean saddling those with fewer financial resources (students) with higher fees.

The decision starts out by noting that FOIA fees -- if high enough -- are an effective deterrent to requesters. It then goes on to examine the government's assertion that the category of "educational institution" does not include these institutions' student bodies.

We thus must decide whether the statutory term “educational institution” is properly read, as the Government reads it, to include teachers but exclude students from the category of preferred requesters who are eligible for reduced fees. We conclude that the Government’s reading is inconsistent with the statute. Indeed, we think the Government’s reading makes little sense at all.

[...]

It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.

The government -- in making its nonsensical argument that students are not part of educational institutions -- relies on two different pull quotes. One is from a statement Sen. Charles Leahy made way back in 1986 during his legislative push to amend the FOIA to reduce fees for schools.

“A request made by a professor or other member of the professional staff of an educational or noncommercial scientific institution should be presumed to have been made by the institution.”

The government has chosen to believe this excludes students. The court, however, points out that Leahy was actually expanding the definition from what was originally assumed: that only top-level representatives of education institutions (presidents, chairpersons, etc.) could benefit from the lowered fees. The amendment, as written, makes no delineation between staff and students, no matter what the government feels Leahy must have meant when he made that statement.

The second pull quote is from an OMB (Office of Management and Budget) FOIA guideline.

“A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify” as a request made by an educational institution.

With this, you'd figure the DoD has a point. But it doesn't, as the court explains. There are questions that need to be answered and one of them is, "How does the OMB arrive at this conclusion without a single statutory leg to stand on?"

In our view, OMB’s rule for student requests is inconsistent with the statute. FOIA refers broadly to an “educational institution.” As we have explained, we see no good basis in the text or context of FOIA to draw a line here between the teachers and students within the educational institution. The Guideline’s ipse dixit distinction of students from teachers is entirely unexplained and unpersuasive. The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets. We discern no meaningful distinction for purposes of this statute between the geology teacher and the geology student.

As the court sees it, the OMB's diversion from the statutory mean may be more motivated by its position (the "Budget" part of OMB) to seek higher fees from more requesters -- allowing it to make more money while deterring a certain percentage of FOIA requesters. If so, that's its own problem and one it fixes immediately. The FOIA isn't supposed to be a profit-making enterprise, much less a reliable revenue stream.

But this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students. The statutory text and context lead us to this simple conclusion: If teachers can qualify for reduced fees, so can students.

The court cautions that its take on the "educational institution" price break is not meant to be read as FOIA: Student Edition and used by attendees to obtain cheap documents for personal or commercial use. It says the government can take steps to prevent abuse by requiring things like copies of student IDs, letters from instructors, etc. That being said, the court is similarly not granting agencies the power to follow the letter of ruling while doing everything they can to break its spirit.

We caution agencies against requiring hard-to-obtain verifications that will have the practical effect of deterring or turning away otherwise valid student FOIA requests.

This is a win for student Kathryn Sack and for all others similarly situated. It returns a fee exemption to a more logical place, rather than leaving it in the shape it was, where it could be used to deter requesters with limited means.

Mitch Stoltz, over at EFF, has been writing about a ridiculous situation in which Sony Music has been using ContentID to take down fair use videos -- and then to ask for money to put them back up. As Stoltz notes, the videos in question are clearly fair use. They're videos of lectures put on by the Hudson Valley Bluegrass Association, teaching people about bluegrass music. They're hourlong lectures in a classroom setting, that do include snippets of music here and there as part of a lecture, with the music usually less than 30 seconds long.

HVBA’s use of clips from old bluegrass recordings is a clear fair use under copyright law. The clips are short, the purpose of the videos is educational, and the group does not earn money from its videos. Plus, no one is likely to forego buying the complete recordings simply because they heard a clip in the middle of an hour-long lecture.

Nonetheless, like so many others, HVBA had its videos disappear thanks to a ContentID match on some Sony music. Here's where the story gets much worse than the standard version of this story. HVBA reached out to Sony Music, asking it to release the claim, but Sony Music demanded money, saying it was an "administrative" fee.

When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up.

As the EFF post notes, this highlights (yet again) what a dangerous disaster "notice and staydown" would be. It would open up the ability for shakedowns and censorship like what happened above.

Of course, once EFF publicized the story, Sony Music quickly backed down, but not everyone will be able to have their story told by EFF.

Even worse, even in backing down, Sony Music refused to concede the point, and indicated it still believed that fair use needed to be paid use.

A Sony executive emailed HVBA to say that the company “has decided to withdraw its objection to the use of its two sound recordings” and “will waive Sony Music’s administrat[ive] fee.” That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all.

It does make you wonder if Sony Music has been successful in charging this $500 fair use "administrative fee" to others, in a move that would be pure copyfraud.

Either way, imagine how copyright trolls would react to this kind of situation if it were more global on the internet with a mandated notice and staydown provision. We've already written about cases where people falsely claim copyright on works to get stuff taken down on other sites, but if there's a way to not just censor with that, but also make money, you know it's going to get widely abused. Hell, we've even had a similar situation here, where a small publication in another country (which does not have a fair use regime) sent us a letter objecting to our linking and quoting them without reaching "an agreement." Giving more power to folks like that is a recipe for widespread censorship and shakedowns.