by Mike Masnick
Tue, Nov 6th 2012 11:02am
by Mike Masnick
Thu, Nov 17th 2011 1:33pm
DOJ Two Step: It Should Be A Criminal Offense To Lie About Your Age On Facebook... But We Probably Won't Go After You For It
from the well,-that's-comforting dept
In this case, one of the key issues is that law enforcement has used the law in the past to say that any violation of a terms of service agreement -- such as lying about your age when signing up for a dating site -- could be a criminal offense under the CFAA. That, of course, is insane. Even more ridiculous, however, is that the DOJ's official testimony at the hearing was about how important it was to keep this part of the law in place, allowing it to add questionable charges.
The law must allow "prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider," -- Richard Downing, Justice Department's deputy computer crime chiefBut then, Downing also seems to be saying the exact opposite:
ďThe DoJ is in no way interested in bringing cases against people who lie about their age on dating sites, or anything of the sort. We donít have the time or resources to do that,ĒSo.... the law must allow such prosecutions, but it has no interest in bringing such prosecutions. That makes perfect sense. If you're a DOJ official, I guess. For the rest of us... huh?
by Mike Masnick
Mon, Oct 31st 2011 3:53pm
from the doesn't-sound-like-it dept
After looking over the details, I'm not convinced that's true -- and neither are the folks at Fight for the Future, and some of their legal experts. They've now put up a site called BieberIsRight.org, highlighting the legal problems, and how it appears that Klobuchar and the supporters of SOPA don't even understand their own bills. Part of the claim is that it's only the service provider who would be responsible for the "performance," but that's not supported by the case law. Hell, it's not even supported by Klobuchar's own co-sponsor, Senator Chris Coons, who admitted that it wouldn't just criminalize service providers, but "individuals and sites providing the streamed content."
But the bigger issue highlighted by the site is that there is caselaw showing that "a transmission that ultimately results in a performance to the public is, itself, a public performance." That would suggest that merely uploading to a site that then allows a performance to the public could certainly be interpreted as a public performance. Furthermore, in the case of Bieber, the problem is not that he merely uploaded the videos. I agree that for people who merely upload videos of other people's work, this might not apply. But Bieber clearly was performing the works of others in his videos. The uploading isn't the issue. The performance in the video then combined with the public performance of the infringing video seems like it could easily fall under the law.
Yes, this is a question of interpretations of the law, and a large part of the problem is that the text as Klobuchar and (on the House side) Lamar Smith have put forward, doesn't carefully distinguish, meaning that no matter how many times they insist the law won't apply to people like Justin Bieber, we really won't know that for sure until the courts weigh in -- and the ambiguity, especially given the existing case law, means it's no sure thing. One hopes that the court would give weight to the statements of Klobuchar's staff, but there's no guarantee that they will. Besides, any law that is going to require hunting down the press quotes from staffers to prove that it doesn't mean what it seems to say on its face is, without a doubt, a bad and dangerous law.
So why is Klobuchar so focused on getting it passed?
by Brady Kriss
Fri, Sep 16th 2011 11:06am
from the how-to-turn-the-whole-world-into-felons dept
At the root of many of the arguably overreaching applications of the CFAA is the prohibition on conduct which "exceeds authorized access" to a computer system. According to Kerr:
Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like.
Would you believe that some politicians are even thinking of making the bill even worse?
Professor Kerr's primary concern expressed in the op-ed was that the CFAA was going to be amended to make any violation of the CFAA a felony. Hopefully, this won't pan out. The original Administration proposal (pdf) did increase the baseline punishment for any violation of the CFAA (including exceeding authorized access) from a misdemeanor level offense (less than one year) to a felony. But, thankfully, the Judiciary Committee didn't take the Administration's suggestion. Lets hope it stays that way as this bill makes its epic journey through the Washington legislative sausage maker.
There is yet a glimmer of rational-thought hope. Senators Grassley and Franken have introduced an amendment (pdf) which would modify the definition of "exceeds authorized access" to exclude violations of a TOS, if that's the only basis for the charge of violating the CFAA, effectively improving the CFAA instead of making it worse. Fingers crossed that the amendment makes it in.
by Mike Masnick
Wed, Jul 20th 2011 4:01pm
from the is-that-good-or-bad? dept
by Mike Masnick
Wed, Jul 6th 2011 3:59pm
from the good-for-them dept
We've noted that the bill is getting more attention of late, and it appears that the YouTube community has awakened to the problems with it. If you now do a YouTube search on s978, there are a rapidly growing number of results, with plenty of people speaking out against the bill, in part due to claims and some videos from YouTubers related to worries from video gamers.
Tragically, going through a bunch of the videos... nearly all of them gets the facts wrong in some manner (sometimes getting nearly all the details wrong). I worry about that, because it allows politicians to brush aside the very real concerns about the unintended consequences of the bill. Also, some of the incorrect statements seem to lead to people saying that the bill won't pass because "something that stupid can't pass." And, indeed, no bill is going to pass that will force all these people to take their videos down or to fine them for old videos as some have suggested. The risk is in how the bill could be used by federal prosecutors to go after people embedding certain videos, and then using the letter of the law (though clearly not the spirit) to go after people.
It's good to see so many people speaking out, but it would be better if they spoke factually about the bill, rather than running with some of the wilder assumptions that people seem to be making.
by Mike Masnick
Fri, Jun 17th 2011 8:28am
Senators Unconcerned About Massive Unintended Consequences Of Criminalizing People For Embedding YouTube Videos
from the shame-on-them dept
What's really troubling here is that the media and plenty of concerned citizens have directly raised the issues about the unintended consequences of this law. And while Senators Amy Klobuchar, John Cornyn and Christopher Coons continue to insist that (of course) the law is not intended to be used against such people, they have made no move to fix the bill. Even supporters of this bill, who insisted that we were wrong about what the bill allowed, eventually conceded that our argument was accurate and that this bill could be used to put people in jail for embedding a YouTube video or doing a lip synch video.
And that's a huge, huge problem. Of course, no one thinks the bill is for that purpose directly or that it's going to be widely used for such purposes. However, the bill, as written, clearly allows law enforcement to charge people with a felony for that, assuming it meets a few other conditions. But those conditions are pretty minimal (ads on your page? you're in trouble...). The risk here of abuse is a serious risk, and it's incredibly troubling that Klobuchar, Cornyn and Coons failed to change or adapt the bill, and worse that the rest of the Senate Judiciary Committee allowed the bill to move forward in such a broken state. They were clearly made aware of problems with the bill, but directly chose not to make any changes. How do you explain that other than incompetence or corruption?
by Mike Masnick
Thu, Jun 2nd 2011 9:36am
from the criminalizing-sharing dept
The way the law works is to add the "entertainment subscription" phrase to an existing law concerning unauthorized access to cable or satellite TV services. Not surprisingly, Mitch Glazier (a man famous for selling out all musicians by allegedly sneaking a clause into a bill in the middle of the night that took away the rights of musicians to reclaim their copyrights... just months before taking a high paying RIAA job which he still holds today) is insisting this law is necessary to protect the music industry:
Mitch Glazier, executive vice president of public policy for the RIAA, said the bill is a necessary protective measure as digital technology evolves. The music industry has seen its domestic revenue plunge by more than half in 10 years, from $15 billion to $7 billion, he said.Either Glazier is lying here or the reporter is quoting him way out of context. It may be true that revenue for the record labels that Glazier represents has declined. But the revenue of the music industry -- which includes things like concerts, merchandise, publishing and other areas has actually done pretty well. Besides, the idea that Glazier has any interest in protecting "music" is pretty laughable. His job is to protect labels, often at the expense of musicians.
And this particular piece of legislation is particularly stupid and shortsighted on the part of the RIAA. For the most part, if people are buying one of these subscriptions with the intent to share, at least they're still buying a subscription and paying money to the industry. In the absence of that, it seems quite likely that they'll just go straight to full on infringement. Furthermore, the ability to share a single login with a few family members or friends is often seen as a part of the value. That is, a family may decide that it's worth it to buy such a subscription, because they can split it among a few different people. But, make that a crime and you've just massively decreased the incentive for people to buy such subscriptions.
The bill still needs to be signed by the governor, but it sounds like he's buying the bogus claims of Glazier and the RIAA on this one, saying that "I donít know enough about that legislation, but if it's combating that issue [infringement], I would be in favor of it." Update: Annnnnnnd... signed. Of course.
And, of course, this is just a foot in the door sort of move. Once the RIAA has this in Tennessee, expect to see similar, if not identical legislation popping up in lots of other states as well.
by Mike Masnick
Wed, Jun 1st 2011 10:32am
from the not-understanding-the-technology dept
Supporters of this bill claim that all it's really doing is harmonizing US copyright law's civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing -- but not performing. So, supporters claim, all this does is "harmonize" copyright law and bring the criminal side into line with the civil side by adding "performance rights" to the list of things.
If only it were that simple. But, of course, it's not. First of all, despite claims to the contrary, there's a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.
Furthermore, as we suspected, in the full text of the bill, "performance" is not clearly defined. This is the really troubling part. Everyone keeps insisting that this is targeted towards "streaming" websites, but is streaming a "performance"? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically effectively the same thing). Without clear definitions, we run into problems pretty quickly.
And it gets worse. Because rather than just (pointlessly) adding "performance" to the list, the bill tries to also define what constitutes a potential felony crime in these circumstances:
the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted worksSo yeah. If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link... you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand. Should it really be a criminal act to embed a YouTube video, even if you don't know it was infringing...? This could create a massive chilling effect to the very useful service YouTube provides in letting people embed videos.
by Mike Masnick
Fri, May 13th 2011 11:47am
from the oh-come-on dept
Yes, you read that correctly: a link is an "information location tool" and such tools may be barred from pointing to sites deemed "dedicated to infringing" purposes. That seems like a massive breach of the First Amendment. If there is relevant information, as someone covering the news, why should I be prevented from linking?
Making matters even worse is a companion bill introduced by Senators Amy Klobuchar, John Cornyn and Christopher Coons, which would ratchet up charges for sites that stream infringing works to a felony. The specific text of the bill is not yet public, and it's likely that it just extends the "public performance" rights to section 506a of the Copyright Act (which only covers distribution and reproduction rights today). But, that leaves open a huge question of what is considered a "public performance" and how you define "streaming" in relation to a public performance. I can see it reasonably applying to a site hosting the content and streaming it... but what about an embed or a link, in which the content never touches the site in question at all? Tragically, we've already seen that the feds consider merely linking or embedding to be a form of a felony -- so it appears this bill is designed to make that even clearer, and that is really dangerous.
Put it all together, and our elected officials are now claiming that linking to something can be a felony. Yeah. Scary.
It seems that we really should highlight the list of Senators who have sponsored these bills, and who are telling you that linking to content should be considered a felony. The first bill is sponsored by:
- Patrick Leahy
- Orrin Hatch
- Chuck Grassley
- Charles Schumer
- Dianne Feinstein
- Sheldon Whitehouse
- Lindsey Graham
- Herb Kohl
- Chris Coons
- Richard Blumenthal
- Al Franken <-- Updated to include, missed him on the first pass
- Amy Klobuchar
- John Cornyn
- Chris Coons, who has the distinction of sponsoring both dreadful bills