Posted on Techdirt - 1 July 2015 @ 2:33pm
There's been a bunch of fuss online over the "news" that Craigslist is supposedly donating $1 million to EFF when the money is not actually from Craig. It's from a startup that Craigslist has sued out of business, under a dangerous interpretation of the CFAA that harms the open internet. Obviously, EFF getting an additional $1 million in resources is really great. But it's troubling to see so many people congratulate Craigslist and Craig Newmark for "supporting EFF." Craig himself has contributed to this misleading perception with this tweet implying he's giving his own money to EFF:
Plenty of smart people are cheering on
Craig for supposedly being so generous
. But that's wrong. This isn't Craigslist being generous. This is Craigslist abusing the CFAA to kill a company who was making the internet better, and then handing over some
of the proceeds to the EFF, which actively opposed Craigslist's lawsuit.
Now, I should note upfront that I like
Craigslist and very much like Craig Newmark personally. I think that the company has been really innovative
in taking a more long term view of its business (even if it's been losing ground more recently). However, this lawsuit was always really sketchy. It sued a few companies for making Craigslist more valuable
. Those companies were scraping Craigslist data, but only to overlay additional information and always pointing people back to Craigslist
. In other words, the companies Padmapper and 3taps were adding value
to Craigslist in the same manner that much of the internet was built -- by providing more value on top of the work of others.
And yet Craigslist sued these companies under a tortured
definition of the CFAA, arguing that the mere scraping of its data to provide value on top of it (none of which took away any value from Craigslist) was "unauthorized access." The EFF filed an amicus brief against Craigslist
, slamming the company (which it has frequently supported in other circumstances) for abusing the law:
The CFAA does not and should not impose liability on anyone who accesses information publicly available on the Internet. Because the CFAA and Penal Code § 502 imposes both civil and criminal liability, it must be interpreted narrowly. That means information on a publicly accessible website can be accessed by anyone on the Internet without running afoul of criminal computer hacking laws. In the absence of access, as opposed to use, restrictions, Craigslist cannot use these anti-hacking laws to complain when the information it voluntarily broadcasts to the world is accessed, even if it is upset about a competing or complementary business.
Craigslist’s enormous success is a result of its openness: anyone anywhere can access any of its websites and obtain information about apartments for rent, new jobs or cars for sale. Its openness means that Craigslist is the go to place on the web for classified ads; it users post on Craigslist because they know their ads will reach the largest audience.
But what Craigslist is trying to do here is to use the CFAA’s provisions to enforce the unilateral determinations it has made concerning access to its website, an Internet site that it has already chosen to open up to the general public, attempting to turn a law against computer hacking into a new tool. But prohibiting access to an otherwise publicly available website is not the type of harm that Congress intended to be proscribed in the CFAA, and nowhere in the legislative history is there any suggestion that the CFAA was drafted to grant website owners such unbridled discretion.
That's the EFF directly arguing against Craigslist in this case. Unfortunately, the initial district court ruling agreed with Craigslist
, leading EFF to note just how dangerous the ruling was:
There's a serious potential for mischief that is encouraged by this decision, as companies could arbitrarily decide whose authorization to "revoke" and need only write a letter and block an IP address to invoke the power of a felony criminal statute in what is, at best, a civil business dispute.
Orin Kerr, who is an expert on abuses of the CFAA was similarly alarmed
Judge Breyer’s opinion appears to mix up two different aspects of the CFAA. The first aspect is the prohibition on unauthorized access, and the second is its associated mental state element of intent. The CFAA only prohibits intentional unauthorized access; merely knowingly or recklessly accessing without authorization is not prohibited. So whatever unauthorized access means, the person must be guilty of doing that thing (the act of unauthorized access) intentionally to trigger the statute. Breyer seems to mix up those elements by focusing heavily on the fact that 3taps knew that Craigslist didn’t want 3taps to access its site. According to Judge Breyer, the clear notice meant that the case before him didn’t raise all the notice and vagueness issues that prompted the Ninth Circuit’s decision in Nosal.
So now the case has been settled, and, as a result at, least one of the companies involved, 3taps, is shutting down altogether
. 3taps points out that it's 3taps, not Craigslist
whose money is going to EFF:
As part of the settlement, 3taps and its founder, Greg Kidd, have agreed to pay craigslist $1 million, all of which must then be paid by craigslist to the EFF, which supported 3taps' position on the CFAA in this litigation, and continues to do great work for Internet freedom generally. Mr. Kidd's investment firm, Hard Yaka, has also committed to make a substantial investment in PadMapper to provide it with the resources to continue to innovate and serve the post-craigslist marketplace.
Although 3taps lacks the resources to continue the fight, this settlement provides much needed resources to the EFF, as there is still much to be done on the issues raised in this case.
For example, the question remains whether private companies that maintain public websites can selectively exclude visitors, exposing the banned visitor to civil and criminal liability under the CFAA.
Furthermore, this is unlikely to be the last litigation involving craigslist's copyrights, particularly given craigslist's current practice of selectively obtaining copyright assignments and registrations (the prerequisite to a copyright infringement lawsuit) in certain user-generated posts, but failing to inform its visitors which posts it owns. This effectively creates a copyright litigation trap for unwary visitors.
Finally, it remains unresolved whether craigslist's well-recognized practice of "ghosting" (the hiding or interception of user postings and emails) without the users' knowledge or consent is legal or ethical.
Given all that, it's fairly disappointing to see lots of prominent people backslapping Craig
for "donating" this money to EFF. It's not Craig's money. And, according to the settlements
, it appears that the $1 million isn't all that Craigslist is getting. That's just the money 3taps is paying. Another company in the dispute, Lovely, is paying an additional $2.1 million. It's unclear if Craigslist is giving that money to EFF or anyone else -- or keeping it.
Again, on most
issues, I think Craig and Craigslist are on the right side of things. He fought strongly against SOPA and for net neutrality. I think the company does the right thing in many cases, but in this case it clearly
did not, and the fact that people are now cheering him
on when it's not even his money, and is only happening as a result of his bad lawsuit that forced another company to shut down, is really disturbing.
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Posted on Techdirt - 1 July 2015 @ 12:45pm
Remember Thomas Dart? He's the sheriff of Cook County, Illinois (the county that covers Chicago and many of its suburbs). For reasons that make no sense at all, he's somewhat obsessed with the fact that some prostitutes have figured out how to use the internet. But, rather than using this information to actually find and arrest those who are breaking the law, he's decided a much better move is to ignore the law and attack the internet tools those prostitutes use. Back in 2009 he sued Craigslist, wasting a ton of taxpayer money, until the court inevitably threw out the case, explaining (in detail) to Dart that the law (in particular, Section 230 of the CDA) says he can't do that. As we noted at the time, the really, really bizarre part was that in Dart's initial announcement, he even noted how his staff used Craigslist to find and arrest those engaged in prostitution. In other words, his lawsuit appeared to be an attempt to shut down a tool that had been useful to his staff in stopping crime. Indeed, in the court ruling throwing out his bogus lawsuit, the Court pointed out the obvious:
Sheriff Dart may continue to use Craigslist's website to identify and pursue individuals who post allegedly unlawful content... But he cannot sue Craigslist for their conduct.
Sheriff Dart may not be suing again, but it appears he has not learned his lesson yet. Of course, after being hassled by a number of law enforcement officials with no legal authority, like Dart, Craigslist eventually shut down any section of its site that might have been used for prostitution. And, just as we predicted, the prostitution just moved onward to another site, Backpage.com. And, of course, the same law enforcement officials suddenly freaked out
over Backpage -- even though, yet again, the law is pretty clear that Backpage is not liable
So, now, Thomas Dart is back again, this time without a lawsuit, but using his position as a law enforcement official to strong-arm payment companies into no longer working with Backpage
MasterCard said on Tuesday that its credit cards can no longer be used to pay for ads on the Backpage.com website, following a request from a Chicago law enforcement official who said the site is used by sex traffickers.
Cook County Sheriff Thomas Dart said that so-called "escort" ads on Backpage.com and similar sites make up the foundation of the sex trafficking industry, which preys on the young and vulnerable. He has asked both Visa Inc and MasterCard Inc to cut off any association with the Backpage.com "adult" section.
"Backpage has significantly lowered the barrier to entry for would-be traffickers," said Dart, adding he will reveal details of a larger initiative against Backpage at a news conference on Wednesday.
The "news conference" on Wednesday was just a chance to say that Visa was in on the ban as well
Visa Inc said on Wednesday it is joining MasterCard Inc and American Express Co in barring its credit cards from being used to pay for ads on Backpage.com following a request from a Chicago sheriff who said the site is used by sex traffickers.
Once again, Backpage has tons of legitimate uses as a classifieds service, and whatever prostitution that is done on the site should make Dart's life easier
by allowing him and his staff to find those engaged in prostitution. I'm curious, did Dart similarly recommend that streetlights be turned off at night so that street walking prostitutes can no longer walk the streets? Why not target the actual prostitutes, rather than the tool that helps you find them
In the meantime, while this move will get stupid headlines for Dart, it won't change much. Backpage is already accepting Bitcoin, and I can't wait to see Dart's office try to figure out how to pressure "Bitcoin" into no longer working with Backpage.
Ridiculously, Dart now claims this will make traffickers easier
to catch. Though he doesn't explain how:
"We have no naive notion that we'll end prostitution, end trafficking, end exploitation of children," Dart said. "What we've wanted all along is to make it more difficult and make (traffickers) easier to catch."
So the way you make them "easier" to catch is to cut off their ability to use tools that make it ridiculously easy for you to track down, and instead push them to using tools and systems where you can't track them down? Want to try that one again?
Either way, doesn't it seem highly questionable
for a law enforcement official to interfere in the private business agreements of two companies, neither of whom are breaking the law?
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Posted on Techdirt - 1 July 2015 @ 9:32am
Donald Trump seems to be showing off what would happen if your prototypical internet troll had way too much money at his disposal. As you may have heard, he's putting on a big show of "running" for President, though as many have recognized, the move appears to be a hell of a lot more about getting himself publicity (thankfully, at least some news organizations are properly categorizing stories about Trump as entertainment rather than politics). Of course, the plan to get more attention may be backfiring somewhat, as some of the ridiculous comments he's made "on the campaign" are coming back to bite him -- including Univision cutting ties with him over the Miss USA telecast and NBC dumping both the pageants and his Apprentice series (that thing is still on?).
In response, Trump has filed what has to be one of the funniest lawsuits we've seen in a long time against Univision over the cancelled deal. It honestly reads like one of those nutty conspiracy theory lawsuits we see all the time, often filed pro se. You'd think that Trump would have trouble finding lawyers willing to file nuttiness on his behalf, but apparently there's always someone. It even resorts to the worst trolling tactic of internet commenters: complaining that his "First Amendment rights" are being violated because Univision dropped him. And it all involves a conspiracy involving Hillary Clinton. Seriously.
While Univision has claimed in the media that its decision to cut ties with MUO came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly
veiled attempt by Univision, a privately held company principally owned by longtime Clinton
Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump's
freedom of speech under the First Amendment as he begins to campaign for the nation's
presidency and, in recent weeks, has dramatically risen in the polls while expressing critical
views of Mrs. Clinton. Little else can explain Univision's decision to not only abandon its
contractual relationship with MUO, but also, upon information and belief, pressure NBC to
follow suit and cut longstanding ties with Plaintiffs nearly two weeks after the statements were
First of all, as all of you (minus a few trolls) are currently screaming right now, no the First Amendment has absolutely nothing to do with this. We'll let the obligatory xkcd explain
The statement is also entirely superfluous to the lawsuit as well, as none of the actual legal claims have anything to do with his First Amendment rights. Apparently Trump could get the lawyers to throw that bit into the description of the case, but when it came time to make actual claims, even the lawyers wouldn't go so far as to make a First Amendment claim.
Also, "little else can explain?" Really? Actually, there are tons
of other explanations, with many of them being a hell of a lot more plausible than any fear of Trump being a legitimate contender for the White House -- for example, the actually stated reason
that Trump out and out offended the entire country of Mexico with some ridiculous statements.
Next up in the internet troll playbook, we have the ridiculous claim of "defamation" over statements that the person doesn't like
, but which are clearly statements of opinion, rather than fact:
In a move which can only be described as both tasteless and defamatory, on June
25, 2015, Mr. Ciurana, Univision's President of Programing and Content, then posted a photo on
his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old
who was recently arrested in the murder of nine (9) African-Americans attending bible study at a
church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S.
soil. While Mr. Cuirana would later remove the defamatory post, the damage was already done:
almost immediately, Mr. Ciurana's post was picked up by the media and became the subject of
hundreds, if not thousands, of press articles, yet another example of Univision's dubious efforts
to create a false narrative in an attempt to upset Mr. Trump's longstanding personal and business
relationship with the Hispanic community.
If you're curious, here's the Instagram that Alberto Ciurana put up:
It's pretty clearly a somewhat weak attempt at humor, mocking the hair cuts of Trump and Roof. Tasteless? Perhaps, but there's no law requiring anyone to be tasteful in their internet jokes. Defamatory? Not in any way, shape or form. Not even close. And yet, unlike the non sequitur (and incorrect) First Amendment claims earlier, the lawsuit actually does
It's entirely possible
that there are legitimate issues concerning breach of contract here, but even most of that seems like a stretch. Because Univision didn't just cut ties with Trump, it actually agreed to pay the full licensing amounts it promised
for the next five years (totaling $13.5 million). In other words, Trump actually didn't lose any direct money from this, because Univision paid up (and, in theory, he could try to license it to someone else, though I'm not sure who would want to pay at this point). But Trump is -- hilariously -- claiming damages of $500 million
because now people won't see the pageants.
Of course, Trump's own arguments undermine his arguments (because of course
they do). The lawsuit repeatedly brags that there was a bidding war earlier this year, in which Univision emerged victorious. Thus, at least a few months ago, other TV media properties wished to broadcast the pageants. If it was true that this was all just a grand conspiracy by Hillary Clinton supporter Saban, then you'd think that Trump could simply move on to whoever else was in that bidding war (while keeping all the money that Univision paid him anyway!). But, of course, if the real reason for the cancellation was because of Trump's comments about Mexico and the concern about how Spanish-speaking audiences felt about that -- well, then Trump wouldn't be able to find that alternative.
The lawsuit is then equally hilarious in arguing that it can't possibly be Trump's offensive comments about Mexico because Trump has said the same offensive crap many times before
. That seems like an odd thing to argue in such a lawsuit, but it's what Trump's lawyers have chosen to claim:
In reality, however, Mr. Trump's calls for immigration reform, particularly with
respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump
had, in numerous television and news interviews, consistently voiced his concerns regarding the
influx of illegal immigrants pouring into the United States across the Mexican border and the
crime that has resulted therefrom, views which were widely reported by every major media
outlet, including, both Univision and NBC.
As Mr. Trump explained in an interview with Fox News' Bill O'Reilly on March
30, 2011, "[t]hey're coming over, and they're climbing over a fence, and there's nobody within
10 miles -- and they're selling drugs all over the place, they're killing people all over the place --
and we're not doing anything about it."
Indeed. It may be true that Trump has said offensive things in the past, but that doesn't mean that Univision can't later decide that the greater attention paid to his more recent offensive comments are such that it no longer wishes to do business with him. There's no rule anywhere that says, "Well, if you didn't complain four years ago when I said some stupid shit, you can't complaint now!" Even if it's true that Univision is only making this decision because Trump's comments went a bit viral, that's Univision's decision to make, and his previous comments are completely meaningless.
Frankly, this lawsuit is absolutely hilarious. The chances of it going anywhere are pretty slim. The First Amendment arguments are ridiculous, but meaningless, as there's no actual legal claim there. The defamation claims are going to get laughed out of court. The whole thing is fairly hilarious, and fits in with the designation of Trump as "entertainment" rather than anything even remotely serious.
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Posted on Techdirt - 1 July 2015 @ 8:31am
For many years, despite claims from legacy copyright industry extremists who sought to blame everyone else for any piracy issues, we've pointed out that the reality is almost always that piracy is their own fault for failing to provide convenient, reasonably priced alternatives to the public. When they actually do that, piracy rates almost always drop significantly. And now we have even more proof that these legacy industry insiders know this and don't care.
You may remember that, two years ago, Apple was found guilty of price fixing for ebooks, in an effort to break Amazon's hold on the market and to artificially inflate the price of ebooks, creating significant consumer harm. Apple agreed to settle with the government last year, but dependent on how its appeals process went. Well, the Second Circuit appeals court was... unimpressed with Apple's appeal and has upheld the original ruling. The ruling (and the dissent) are interesting reads, but perhaps most interesting is the tidbit in which the big publishers admit that what they're doing will increase piracy, but they don't care because they so badly want to raise prices from Amazon's established $9.99 per ebook.
The most significant attack that the publishers considered and then undertook, however, was to withhold new and bestselling books from Amazon until the hardcover version had spent several months in stores, a practice known as “windowing.” Members of the Big Six both kept one another abreast of their plans to window, and actively pushed others toward the strategy. By December 2009, the Wall Street Journal and New York Times were reporting that four of the Big Six had announced plans to delay ebook releases until after the print release, and the two holdouts — Penguin and Random House — faced pressure from their peers.
Ultimately, however, the publishers viewed even this strategy to save their business model as self‐destructive. Employees inside the publishing companies noted that windowing encouraged piracy, punished ebook consumers, and harmed long‐term sales. One author wrote to Sargent in December 2009 that the “old model has to change” and that it would be better to “embrace e‐books," publish them at the same time as the hardcovers, “and pray to God they both sell like crazy.” .... Sargent agreed, but expressed the hope that ebooks could eventually be sold for between $12.95 and $14.95. “The question is,” he mused, “how to get there?”
In other words, the publishers were so focused on wanting to raise the price of ebooks, they were willing to embrace a solution that they knew
both encouraged piracy and harmed long-term sales.
It really makes you wonder what kind of boards of directors these legacy publishers have, that they'd allow their companies to purposely
shoot themselves in the foot, so they could raise prices and put in place windowing, even while recognizing all the harm it causes long term.
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Posted on Techdirt - 30 June 2015 @ 9:03pm
First, the good news: members of the House of Representatives in the US Congress are now allowed to use open source technology in their offices, rather than the very limited list of proprietary offerings they were given in the past. Second, the bad news: how the hell is it 2015 and this is only becoming an option now? I guess we can't change the past, and so let's celebrate the House of Reps finally getting to this point -- which just happens to coincide with the upcoming launch of the House Open Source Caucus (led by Reps. Blake Farenthold and Jared Polis). We've talked plenty about how little Congress understands technology, software and the internet today -- so actually introducing them to the basics of open source software can only help. And, yes, this comes on the heels of a Congressional rep making a pull request on Github. So, maybe (just maybe) we're starting to see more of our elected officials actually taking the time to understand the technologies that their policies will impact.
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Posted on Techdirt - 30 June 2015 @ 1:40pm
We've been covering France's bizarre war against Uber, starting with last week's taxi driver riots in which they overturned Uber cars, set fires, and held drivers and passengers hostage. This was followed by a bizarre caving in by the French government, who didn't go after the taxi drivers for their actions, but rather declared that Uber should be stopped and told law enforcement to seize the cars of Uber drivers. And, yesterday it went up a notch with two top Uber execs in France getting arrested and accused of the horrible crime of "inciting illegal employment" in a country where the unemployment rate continues to rise.
We keep pointing out that the public really seems to like Uber, so this crackdown seems rather bizarre. And, not so surprisingly, it seems to only be creating that much more interest in Uber in France, with the service reaching a record high in downloads since this all went down.
So I decided to take a look at Uber downloads in France, to see what happened during the strike. Not surprisingly, they spiked. In fact, Uber last Thursday was the second-monst downloaded iPhone app in France, which was the first time that had ever happened. Then, on Friday, it hit the top spot.
As Uber has discovered in the past, controversy can be great marketing. But it really makes you wonder what French politicians think they're doing here. Yes, there are some people who really hate Uber, but the public certainly seems to find the service to be pretty damn valuable.
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Posted on Net Neutrality Special Edition - 30 June 2015 @ 9:31am
In 2014, it really looked like Europe was moving towards strong net neutrality, while the US was going to allow for special fast lanes on the internet. In 2015... everything has gone the other way. The US passed real net neutrality rules, while Europe has not only decided to kill net neutrality, but has done so in a way where they pretend that they're actually supporting net neutrality.
In some way, this isn't a surprise. EU Digital Commissioner Gunther Oettinger recently mocked net neutrality and its supporters, saying they had turned it into a "Taliban-like" issue. Then a month ago, rumors started to fly that the weekly "trialogue" meetings between the EU Commission, the Council of the EU and the EU Parliament was looking to ditch net neutrality altogether. Instead, it appears that the final solution was actually to redefine net neutrality to pretend they were offering it, while really killing it. And, as a consolation prize, they're killing off roaming charges around Europe (which can be pretty extreme). But that is little consolation for the fact that they're actually destroying net neutrality in the process.
The little trick being pulled by politicians who apparently think the public is too stupid to understand this is to redefine net neutrality. First, they claim that the "open internet" is really important and they won't allow paid prioritization. This part all sounds good:
The rules enshrine the principle of net neutrality into EU law: no blocking or throttling of online content, applications and services. It means that there will be truly common EU-wide Internet rules, contributing to a single market and reversing current fragmentation.
- Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet.
- All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic.
Sounds good, right? But there's a pretty big catch. Those rules and the "open internet" don't cover what most people think of as the internet. Instead, it's been boxed in. Because the deal also creates a made up new categorization known as "specialized services" where such prioritization will
What are specialised services (innovative services or services other than Internet access services)?
The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access. These are services like IPTV, high-definition videoconferencing or healthcare services like telesurgery. They use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet. The possibility to provide innovative services with enhanced quality of service is crucial for European start-ups and will boost online innovation in Europe. However, such services must not be a sold as substitute for the open Internet access, they come on top of it.
Got it? The "regular" internet has no fast lanes. But... right over here, we have the "specialized services" part of the internet which, you know, kinda looks like a fast lane. Because it is. So, now, basically, in Europe you can buy your way into the fast lane by claiming your services are "specialized" and watching as the regular internet pokes along at slower speeds.
The agreement does a lot of handwaving to pretend this doesn't destroy net neutrality, but the more handwaving they do, the more obvious it is that the politicians here know exactly what they're doing:
By allowing the provision of innovative services, are we not promoting a two-tier Internet?
No. Every European must be able to have access to the open Internet and all content and service providers will be able to provide their services via a high-quality open Internet. But more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving. These and other services that can emerge in the future can be developed as long as they do not harm the availability and the quality of the open Internet.
Therefore it is important to have future proof rules which, while fully safeguarding the open Internet, allow market operators to provide services with specific quality requirements in order to provide them in safe manner. It is not a question of fast lanes and slow lanes - as paid prioritisation is not allowed, but of making sure that all needs are served, that all opportunities can be seized and that no one is forced to pay for a service that is not needed.
Oh, and of course, the new rules allow zero rating
, which is the sneaky trick by which telcos use data caps to backdoor in preferential treatment to those willing to pay, while pretending this is some sort of benefit to consumers. The EU sees no problem with this, despite the fact that it enables large internet companies to squeeze out startups and smaller players.
What is zero rating?
Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume.
Zero rating does not block competing content and can promote a wider variety of offers for price-sensitive users, give them interesting deals, and encourage them to use digital services. But we have to make sure that commercial practices benefit users and do not in practice lead to situations where end-users' choice is significantly reduced. Regulatory authorities will therefore have to monitor and ensure compliance with the rules.
Of course, Digital Commissioner Oettinger inadvertently appeared to confirm that this is the end of net neutrality with his poorly worded tweet
on the subject, in which he notes that this is "the end of roaming and net neutrality."
Obviously, he only meant "the end of" to apply to roaming, but having it cover net neutrality as well would be a lot more accurate. Either way, while Oettinger once compared it to a Taliban-like issue, his response has been more on the Orwellian side of things. So long as they redefine the words, the government hopes no one will notice what they actually did. It's the public officials' way of thinking that they're clever and that the public is stupid. That seems like an unwise assumption.
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Posted on Techdirt - 30 June 2015 @ 4:12am
The NSA has long claimed that it does not engage in "economic espionage." NSA and Defense Department officials have repeatedly insisted that while they do lots of other things, economic espionage is not on the list:
“The Department of Defense does engage” in computer network exploitation, according to an e-mailed statement from an NSA spokesman, whose agency is part of the Defense Department. “The department does ***not*** engage in economic espionage in any domain, including cyber.”
These claims are made in a strange attempt to suggest that the NSA is somehow "better" than those like the Chinese, who absolutely do engage in economic espionage, looking for corporate secrets and the like. Of course, it's not entirely clear why not engaging in economic espionage is such an important moral argument for the NSA -- but, at the very least, the agency claims it has its limits.
Of course, it's already been pretty clear that this was more hot air than reality from the NSA anyway. Soon after the first Snowden leaks came out, it was suggested that there was evidence of economic espionage
against Germany. Later revelations showed what appears to be economic espionage
in Brazil. And, on top of that, we wondered why the US Trade Rep
is listed as a "customer" of NSA intelligence if it wasn't doing economic espionage. Oh, and let's not even mention that former CIA boss and Defense Secretary Robert Gates has admitted
to trying to do economic espionage, but stopping because the US wasn't very good at it.
Anyway, with all that it should be obvious that of course
the NSA engages in economic espionage -- but as if to highlight this even more strongly, Wikileaks has now released more documents
showing pretty clear economic espionage
in the form of snooping on French finance ministers, looking to get information on "French export contracts, trade and budget talks."
As with the initial revelation
that the NSA was spying on the French government, by itself, I don't find this too concerning. Governments spying on other governments is kind of how it goes. But it is
notable that there's more evidence of economic espionage when the NSA is so insistent that it absolutely never engages in such tactics. It seems likely that the "out" the NSA would claim here is that it doesn't do economic espionage in the form of spying on companies to try to get their secrets
. But it does other forms of economic espionage by spying on government officials engaged in trade deals and such... That seems like a distinction without much meaning.
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Posted on Techdirt - 29 June 2015 @ 11:38am
Last week, we noted some bizarre happenings in France, as taxi drivers unwilling to compete against Uber decided to stage a "protest" which actually looked a lot more like a riot. They overturned Uber cars, held passengers and drivers hostage and lit fires around the country. You might think that this updated version of Luddites smashing machines would lead to a similar result -- getting laughed at and confined to the dustbins of history. But, this is France we're talking about. Politicians quickly ordered a crackdown on Uber including ordering law enforcement to seize the cars of Uber drivers.
And, that's not all. Now it's being reported that two of Uber's top French execs have been arrested.
The pair are believed to be Thibault Simphal,the director general of Uber France and Pierre-Dimitri Gore-Coty,the directorgeneral of Uber Europe.
According to BFM TV the pair are being investigated for "inciting illegal employment", with the Interior Minister Bernard Cazeneuve having already suggested that the pair's insistence on rolling out UberPop was effectively encouraging individuals to break the law.
We had noted, earlier this year, that French law enforcement had raided
Uber's offices in Paris, but still. "Inciting illegal employment?" Are they serious? Has anyone looked at the unemployment rate
in France lately?
Maybe they need
someone out there "inciting illegal employment" because the government doesn't seem to be doing a particularly good job in helping people get employed now, does it?
Cazeneuve continues his role as the cartoonish villain in all of this, making statements that are absolutely bizarre:
"I have given instructions, considering the grave problems with public order and the development of this illegal activity, to the police prefecture in Paris to ban UberPop activities," said Cazeneuve last Thursday.
Cazeneuve also pointed out that Uber could be guilty of the crime of "illicit transportation of people" under article 40 of the penal code, that could be punished by two years in prison and a €300,000.
First of all, "illicit transportation of people?" These are people who want
to go somewhere and are happy
about the options they have. Why should that be "illicit"?
Second the "grave problems with the public order" are not because of Uber, but because taxi drivers are flipping cars
. Why does Cazeneuve not seem even remotely concerned about that?
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Posted on Techdirt - 29 June 2015 @ 10:31am
This is unfortunate, even if it was somewhat expected: the Supreme Court has now rejected Google's request to hear its appeal over the appeals court decision that overturned a lower court ruling on the copyrightability of APIs. The lower court decision, by Judge William Alsup (who learned to code Java to understand the issues), noted that APIs were not copyrightable, as they were mere methods, which are not subject to copyright.
The appeals court ruling, by the Court of Appeals for the Federal Circuit (CAFC) (famous for getting patent cases wrong over and over and over again) didn't just get things wrong, it got things laughably wrong, confusing the difference between APIs and software throughout, and quoting people entirely out of context (including taking things so out of context that it often pitted people on the same side against each other, solely because CAFC misread what they were saying). The case was appealed to the Supreme Court, and we were shocked and dismayed to see the Obama administration further reinforce the errors of the CAFC ruling in telling the Supreme Court not to hear the case. The filing by Solicitor General Donald Verrilli repeatedly confused software with APIs and insisted that there was really no difference between the two. That's just wrong. It's not a matter of debate. It's just wrong.
One would have hoped that with a ton of computer science experts explaining to the Supreme Court how CAFC got things wrong, the Supreme Court might recognize that the Obama administration was confused, but for whatever reason, the Supreme Court has declined to hear the case.
This is dangerous. The world of software and innovation relies on the kind of interoperability and the ability to connect via things like APIs. As we've noted, this is like claiming you can copyright an entire language, rather than the creative works written in those languages. Making APIs proprietary and locked up puts a ton of innovation at risk.
As for Google and Oracle directly, this probably doesn't matter much. They're two giant companies, certainly. And now that the case returns to the lower court, they'll either settle or fight it out over fair use (and hopefully win on that front as well). But saying fair use allows this is very, very different than saying there's no copyright on the API. And for smaller companies this will have a tremendous ripple effect, and will undoubtedly lead to a slower pace of innovation. The kinds of touchstones that people build on will no longer happen. Under this ruling, it basically overrules previous rulings that said pull down menus were not copyrightable. But with this ruling in place, it's hard to see how that's still true. Expect to see a bunch of ridiculous lawsuits over minor copying of functions like that.
While this case may eventually be resolved on fair use grounds (or through settlement), there are still two potential areas of hope. First, the "precedential" power of this ruling is actually somewhat limited. CAFC precedents are more or less meaningless in this context. CAFC handles all patent cases, and the only reason it heard this case was because it started as a patent case, even though those issues were resolved much earlier. So, while CAFC has made this particular ruling, it does not mean that the 9th Circuit, where this case was actually heard has to abide by it. The appeals court for the 9th circuit could rule otherwise (though it is somewhat famous for its own nutty copyright rulings).
Perhaps if this issue returns to another appeals court, and that court gets it right, the issue will return to the Supreme Court with a clear circuit split. And by then, we can hope, the people staffing the Solicitor's General office will finally include at least one person who understands the difference between code and APIs.
The really stunning thing in all of this is just how factually wrong many of the arguments were, and that the CAFC and Obama Administration bought them. These weren't questions of interpretation or opinion. They just flat out got the facts wrong, based on an astounding level of ignorance about a rather basic concept of an API not being software. Just because they both look like "code" does not make them both code. It would be nice if the people actually making these decisions weren't so easily fooled by their own ignorance.
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Posted on Techdirt - 29 June 2015 @ 9:27am
Remember back when newspapers were considered the leading defenders of the First Amendment and free speech? Apparently that's over. Newsday (the newspaper I grew up reading) has an editorial up by Anne Michaud (the publication's "interactive editor") in which she argues for a dismantling of the First Amendment when it comes to "hate speech." These kinds of arguments have become popular again lately (in fact, many in the US seem to think that hate speech is already not protected under the First Amendment). Michaud's piece starts out by highlighting how she, herself, explored the white supremacist world a few years ago:
Years ago, I took a journalistic excursion through the nation's white supremacist scene. I read books and spoke with professors, attended rallies with Aryan Nations members and Keystone Skinheads and interviewed their leaders....
When I heard about Dylann Roof, I suspected that he had trod the same path.
And yet... Michaud did not become a white supremacist. She did not become a racist. She did not post racist, hateful things on websites, nor did she go and kill nine people solely based on the color of their skin. Perhaps, just perhaps, there was more to Dylann Roof's racist hatred than the fact that he could surf some ignorant, hateful websites. But Michaud does not consider that. Instead, she argues not just that we should carve hate speech out of the First Amendment, but that websites
should be held responsible if their users post such hate speech:
We should consider whether people who run such websites bear some responsibility for the nine dead at Charleston's Emanuel African Methodist Episcopal Church. It would be difficult, but perhaps we should carve out an exception to our First Amendment protection of free speech to hold people accountable for hate speech.
I can totally understand the emotional appeal
of such a "solution." However, it is possible (as I believe) to abhor hate speech itself -- find it horrifying and ignorant -- yet at the same time worry about the implications of trying to carve it out of the First Amendment, and to undermine intermediary liability at the same time.
First, defining hate speech is not nearly as easy as some people like to believe. People think it's easy -- in the "I know when I see it" kind of way, but inevitably it becomes quite the slippery slope and turns into "people saying mean things." In political discourse, for example, it is not uncommon for people opposed to this or that political party to gleefully describe their hatred of members of that party. I find this to be silly and counterproductive, but should it be a crime? Should political websites that encourage comments attacking the opposing political party be held legally liable for such "hate speech?" Once you give an exception to "hate speech," you only open a huge can of worms as people look to use that exception as a way to stifle and censor all kinds of speech they dislike.
Remember that parody
of an anti-hate speech rant we wrote about a few months ago (which some still insist was not a parody but the actual beliefs of some people)? Whether it was a parody or the earnest feelings of someone, it shows how quickly things can morph from "hate speech" into really gray areas -- including political speech and just general opinions.
But here's the bigger issue that no one seems to discuss: outlawing "hate speech" doesn't make it go away. It doesn't make people stop feeling hate. Hate speech tends to be the product of ignorance, and making the ignorant feel persecuted and outcast doesn't tend to lead them to suddenly getting educated. It tends to lead them to even greater resentment, and often a belief that they must be on the right track, since people are trying so hard to shut them up. You combat hate speech with more speech, not by censoring speech.
People say horrible things. Things we absolutely disapprove of and disagree with. But they have the right to say those things, and others have the right to speak out against them, to highlight the ignorance, and even to shame and expose the ignorance itself. Shoving it down into the darkness and pretending that you've somehow "dealt with" the problem doesn't help. These people still believe what they believe. Hiding it in the dark doesn't change that. If this country really wants to confront racism and hatred, making it illegal for people to express their beliefs (no matter how ridiculous) doesn't fix anything. It just hides the real problems and lets them fester. You need to expose hatred, ignorance and bias if you're going to confront it. Yet, Michaud and others want to sweep it under the rug.
And, of course, Michaud uses the usual tropes
against free speech, including pointing out that there are some existing exceptions to the First Amendment, so there should be no problem adding more:
In the United States, we prize our freedom to speak, but in fact our laws uphold many limits. Sedition, for example, or advocating force as a way to change the government, is illegal. Threats, defamation, false advertising and profanity on public airwaves are illegal. Companies protect trade secrets, and courts enforce gag orders in legal settlements.
At least she didn't trot out "fire in a crowded theater." However, the fact that she leads with "sedition" is an interesting choice, given the history of the US using laws against sedition
to crack down on political speech the government disliked.
It's perfectly reasonable to be angered and horrified at ignorant, racist, bigoted hate speech. It's perfectly reasonable to be concerned about those who spew such idiocy. But it's something else entirely to argue that because you dislike it, others should not be allowed
to speak their beliefs. That a newspaper editor
would advocate for such things seems particularly bizarre and counterproductive.
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Posted on Techdirt - 29 June 2015 @ 8:01am
There's that old joke that you've probably heard (in part because we've mentioned it in other contexts), about the drunk man searching for his keys under a streetlight, while admitting that he lost them further down the street. When asked why he's looking over by the light instead, he says "because that's where the light is." People even refer to this as the streetlight effect. And you can see it in all sorts of odd places.
Here, for example, is the MPAA, the guardian of Hollywood's old way of doing business, launching a big new "anti-piracy ad campaign" by... advertising to the people who already paid to see movies in the theater:
The “I Make Movies” videos, which will run in 300 AMC theater locations and a handful of regional chains, spotlights the movie workers behind-the-scenes: a costume illustrator, seamstress, picture car coordinator, carpenter, and set designer.
These spots will be showing in theaters across the country, because that's exactly what people who just paid huge sums of money to watch a movie want to see: an extra commercial before the film they paid to see
telling them them to stop being dirty pirates, with the usual claptrap about all of the poor workers that piracy impacts (leaving aside that those people aren't paid based on movie revenue...).
It's the streetlight effect all over again. The incompetent and ineffective
Chris Dodd-run MPAA feels the need to do something
, so they fall back on the same old game plan:
"Hey, let's advertise to try to make people feel guilty!"
"That's never worked before despite us trying for decades."
"This time it will work! It must work! Because they must all feel guilty! And once they see how guilty they should really feel, they'll stop pirating! Because I have no other ideas!"
"Okay, but where will we best place these advertisements to reach the right people?"
"I've got that one all planned out! We'll get them in the best possible spot: in the movie theaters! The theaters will show those ads for free and we've got a real captive audience!"
"But it's a captive audience who has already shown that they're willing to pay. Why should we advertise to them?"
"Didn't you hear me!?!? It's a captive audience and the theaters will let us do it for free! Piracy is solved!"
Good luck, guys. Once again, if you're looking for better ideas, maybe fire the content protection team
, and hire some folks who actually get the internet.
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Posted on Techdirt - 26 June 2015 @ 7:39pm
Since I run Techdirt, book publishers frequently push random books on me. Sometimes they just send the books. More frequently they send me announcements about books to see if I might be interested. Most go directly in the recycle bin. But one that came in just recently caught my eye -- and not because of the subject matter. Usually the books are about the tech industry or politics or something. But this was a James Bond story. I almost tossed it out immediately, assuming someone mail merged the wrong press list -- but then I realized why we were on the list. James Bond recently went into the public domain in Canada, raising some interesting questions over what that meant -- since 007 is still protected by copyright in the US and some other countries. So, now it appears that some guy named Curtis Cook has decided to write himself his own Bond book, and the press release touts the fact that it's because Bond is in the public domain in Canada.
At the end of the letter, it notes that review copies are available worldwide, but that "commercial sales [will be] limited to Canada and other countries that are "life plus 50" Berne rule signatories." In other words, don't expect to see the book in the US, unless you snag a review copy.
Of course, the book may be absolutely terrible. But it does seem interesting that this book can only be sold in certain countries -- and not in the US -- thanks to copyright law. Something seems fundamentally wrong about that -- but I guess that people who live in countries outside the US who frequently experience ridiculous geoblocks will note that this is just a physical form of the same thing, but in reverse.
In the meantime, with Bond in the public domain in Canada, it's not just new Bond books we're seeing, but other interesting projects as well -- such as a new unauthorized anthology of Bond stories called License Expired. I imagine plenty more is on the way as well. All this creativity... and none of it can touch the United States. Because of our broken copyright system.
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Posted on Techdirt - 26 June 2015 @ 4:01pm
We've written plenty about the mess around pre-1972 sound recordings and online streaming services. Technically, federal copyright law does not apply to sound recordings from before 1972. And while that might make you think they're in the public domain, that's not true at all. First, the compositions are still under copyright and much more importantly, a jumble of state laws did protect some aspects of those sound recordings -- and that's made a huge mess, including locking up some recordings for way, way longer than would be possible under today's federal copyright. On the flip side, however, it meant that certain aspects of federal copyright law that were not covered by state copyright law were fair game -- or so people thought.
This included in music streaming services. It had long been believed that you could publicly perform such pre-1972 songs without a license because, even under the various state and common law copyrights, there was really no concept of a "public performance" right anyway. Thus, services like SiriusXM and Pandora did not need to pay a performance fee to play those songs (for post-1972 recordings, both pay compulsory rates -- which are for different reasons that have to do with lobbying power). This whole mess could be settled by just moving pre-1972 sound recordings under federal copyright law -- which would make them subject to the same compulsory license fees as modern songs, but would also free up those old songs that state copyright law has locked up. It's a tradeoff, but probably the best result. However, the RIAA has fought very hard to block this.
Instead, it wants to have things both ways. It wants to keep those songs locked up for as long as possible, but still wants to get the benefits of federal copyright rights, such as public performance exclusivity. The reason, of course, is that it wants a big weapon -- to force SiriusXM, Pandora and others to pay much larger fees by not allowing them to rely on compulsory rates, but rather to have to come to a negotiated deal.
In order to make this happen there have been a series of lawsuits in different states. In both California and New York, courts ruled against SiriusXM, saying that the state law in California and the common law in NY could be seen to cover performance rights, and thus SiriusXM had to pay up.
However, just a few days ago, a court in Florida went the other way entirely, saying there was no such right in Florida. The state law had nothing and the common law was not established in that area, thus ruling against SiriusXM (and in favor of Flo & Eddie, the organization that brought the suit) would be creating a new right out of thin air (something some copyright experts noted that the other courts had done).
So.... that started to make things interesting. Except... just a few days later, the RIAA and SiriusXM have announced a massive settlement over pre-1972 recordings with SiriusXM agreeing to fork over $210 million. This is going to put enormous pressure on Pandora to come up with a similar settlement. But it's not actually going to answer many of the questions here. First, the settlement only covers the cases brought by the big labels (so not the Flo & Eddie cases...). Second, it only covers through the end of 2017, at which point, it's right back to the negotiating table.
Oh, and in case you're wondering, this line in the Hollywood Reporter story is probably the most important one:
The agreement announced today also doesn't deal with if and how the big record labels will share proceeds with its artists.
Because of course it doesn't.
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Posted on Techdirt - 26 June 2015 @ 2:47pm
Over the last few years, Russia has really been ramping up its efforts to censor the internet to hide content it doesn't like. As is often the case when the government gets the power to censor, that censorship starts spreading farther and farther.
The latest? Apparently in the effort to hide a single archive of a site that the Russian government doesn't like, the entire "Wayback Machine" from the Internet Archive has been blocked:
The Russian government has blocked the Internet Archive, the San-Francisco-based website that provides the popular Wayback Machine, which allows users to view archived webpages. The decision to ban the Internet Archive appears to be the work of Russia's Attorney General, meaning that police determined that the website contains extremist content.
Rublacklist.net says police targeted the Internet Archive because of a saved webpage called “Solitary Jihad in Russia,” a short text that claims to offer information about the “theory and practice of partisan resistance.” At one point, the text states that Islamic sharia law “must be instituted all across the world.”
According to the website Rublacklist.net (a censorship-monitoring project operated by the Russian Pirate Party), the page in question* on the Internet Archive was added to Russia's official registry of banned websites on June 23, 2015. Because the Internet Archive uses https, some Russian ISPs will have to block the entire website in order to comply with the blacklisting, since encrypted traffic won't allow them to differentiate between different pages of the same site. According to TJournal, users of mobile Internet provider Yota were unable to access the page, the Wayback Machine, or the Internet Archive on June 25.
As you hopefully already know, the Wayback Machine
is a tremendously useful tool for looking up archived versions of websites. It is a kind of library of our internet history. Of course, as the article at Global Voices notes, part of the reason the entire site is getting blocked is due to the use of HTTPS. While some might argue that this is a reason why sites shouldn't go to default HTTPS, I'd argued the opposite: it shows the value in HTTPS in that it makes censorship much more difficult such that when it occurs, the results are so ridiculous that it hopefully leads to greater pushback on the ridiculous attempts to censor.
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Posted on Techdirt - 26 June 2015 @ 12:32pm
Yesterday, we wrote about taxi drivers in France going absolutely insane in protesting the fact that they don't like competition from Uber. They took drivers hostage, set fires and flipped cars over -- basically reminding everyone that "hey, Uber drivers aren't nearly as fucking crazy as taxi drivers." But here's the amazing thing: the French government apparently has decided to appease these modern day luddites:
France ordered a nationwide clampdown on UberPOP on Thursday, siding with taxi drivers who blockaded major transport hubs in angry protests against the popular online ride-sharing service.
Not only that, French Prime Minister Manuel Valls, rather than call out the taxi drivers, pretended that it was the fault of "both sides"
Prime Minister Manuel Valls condemned the violence and incidents "on both sides" as the government sought to take a tough stand on the protests while backing the drivers' case.
"They give a deplorable image to visitors to our country," he said during a visit to Colombia, adding that all available legal measures would be taken to halt the UberPOP activity.
The French bureaucrats are now telling law enforcement to seize
cars from Uber drivers. Really.
In a toughening of the French stance, Interior Minister Bernard Cazeneuve ordered Paris police to issue a decree banning UberPOP and said cars defying the order would be seized.
"The government will never accept the law of the jungle," he said in a television declaration on Thursday evening.
Again, as most users of Uber and other such services will tell you, the experience tends to be a lot better
than crappy cab experiences.
And European bureaucrats sit and wonder why they can't have more innovative internet companies starting up there. Perhaps they should look at situations like this and how they respond to innovative companies that disrupt legacy, monopoly services by providing something that the public actually wants.
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Posted on Techdirt - 26 June 2015 @ 9:30am
We've written a few times about Theresa May, the UK's Home Secretary, who seems to have scarily authoritarian, anti-democratic and anti-free speech views. While she insists that the UK isn't a surveillance state, she can't tell you why, because revealing the secrets of the UK surveillance state might put the public at risk. Since late last year, she's been pushing strongly for outlawing thought crimes, which would allow her to prevent people from sharing their views on the internet or at events, if she deems them to be too extreme. After the recent election, the plan to move this forward has gone into effect, with David Cameron gleefully announcing that just obeying the law will no longer stop the UK government from harassing you. Now, if it doesn't like you or what you believe, you will be silenced.
Given all that, it is absolutely terrifying to read Theresa May's recent speech given at the Metropolitan Police's counter-terrorism conference. Given the audience, perhaps it shouldn't be too surprising that May would go off the deep end of Orwellian craziness -- but it's still fairly astounding to see what she actually said. It honestly reads like a bad novel or bad movie script where an editor or producer would scribble on the page "no real person talks like that." Theresa May does, apparently. Here are some of the lowlights.
Time and again we are seeing what we are now up against: the powerful allure of propaganda pumped out by ISIL and others to recruit and brainwash British men and women, the access social media and modern communications give terrorists to vulnerable people, and the desire of those terrorists to poison others against our values and our way of life.
And so we begin with FUD. This popular idea that because ISIS is pretty good at using social media, it's that social media
that is the problem. While there are lots of news stories out there claiming that ISIS' social media usage is drawing recruits, actual research into what's going on paints a much more nuanced picture that suggests that while social media is one tool
that is used for recruiting, there is almost no evidence to suggest that the social media campaign is successful in "brainwashing" men and women to support ISIS. Rather, the hype about ISIS and social media is overblown
. Most of the recruitment actually comes from within existing social circles. It may use the internet
, but it's not happening because
of the internet.
Lots of studies have certainly found that social media plays a part, but it doesn't suggest that merely silencing social media will help. A RAND study
found no evidence "that the internet accelerates radicalisation or replaces the need for individuals to meet in person during their radicalisation process," and it also "didn't find any supporting evidence for the concept of self-radicalisation through the internet." While other studies, such as those from the Soufan Group
and the International Centre for the Study of Radicalisation
, show more support for radicalization on the internet, and also note that social media is just one component that pushes those who are already marginalized into deciding to take that step. In other words, these are often people on the edge already, and it's not clear that censorship is likely to help, other than making these people feel more marginalized.
May goes on to detail various attacks in the UK and elsewhere in Europe, drumming up more fear. And, it's true, that the world is a dangerous place and many people are trying to cause harm. But to think that the answer to that is more surveillance, silencing free speech and making the marginalized feel more marginalized... well, that seems like an approach destined to fail. But it's the approach May supports wholeheartedly, as she gleefully talks about the approach taken by her government. First, she really enjoys kicking people out of the country if she doesn't like them:
We made it easier to get rid of undesirable foreign nationals, including terrorists and terror suspects.
Since August 2013 I have deprived 10 people of their British citizenship on the grounds that I do not consider their presence in the UK to be conducive to the public good.
Think about that latter statement for a second. Because a government official decides that she doesn't think your presence in the UK is "conducive to the public good" she can simply strip their British citizenship. I'm sure that
doesn't anger those folks and encourage them to join forces with those who hate the UK at all
And, of course, the censorship:
Our Internet Referral Unit takes down terrorist-related content from the internet, and since February 2010 we have removed more than 90,000 pieces of material – currently removing around 1,000 pieces a week.
Again, because making content that marginalized groups are reading disappear doesn't make them feel more oppressed and more angry at all...
And, of course, she's been actively expanding her powers in these areas:
We introduced a new power to temporarily seize the passports of people suspected of travelling to engage in terrorism overseas, and since it came into force I can confirm that we have used this power and it has proved effective....
We extended the Authority To Carry provisions, and we are refusing airlines authority to carry to the UK people who have been excluded or deported from the UK or who are using invalid, stolen or lost travel documents.
And then, of course, she eagerly draws in all sorts of institutions -- including schools -- to have a responsibility to be trying to sniff out those darn terrorists in their midst:
And from 1 July the new statutory Prevent duty for specified authorities will commence. Once this has been fully implemented it will require local authorities, the police, prisons, probation services, schools, colleges – and yes, universities too – to have due regard to the need to prevent people from being drawn into terrorism.
The end result? The UK is locking up tons of people on charges of terrorism, despite no actual terrorism happening there:
Mark Rowley, the Assistant Commissioner of the Metropolitan Police, summed up that workload earlier this year when he said that terrorists are being arrested at a rate of almost one every day.
You'd think with so many terrorists, at least a few more attacks would get through. Or is this all just a bit of a "rounding up the marginalized people" exercise?
Hilariously, at the end of the speech, she says that the best way to counter this threat is to highlight the "positive vision" of the UK and its "values."
So the Government has announced a new counter-extremism strategy to protect people from extremism in all its forms: non-violent and violent, Islamist and neo-Nazi. At the heart of that strategy sits a positive vision of Britain and our values, and an open offer to work in partnership with all those determined to eradicate extremism.
Considering she just spent most of the speech advocating censorship, kicking undesirable people out of the country and greater and greater surveillance powers, it seems that those "values" are pretty clear. And, as she makes it clear in the very next paragraph, apparently the "value" of letting those marginalized people speak out is not included:
I want this partnership to reclaim that debate…. to defeat their poisonous ideology… and deny them the opportunity to spread messages of hate and division.
None of this, of course, is to defend ISIS or its media propaganda machine, which at the very least has been effective in getting its message out. But the idea that the way to counter this is through censorship, surveillance and threats, rather than direct engagement seems to muddle the message of claiming the UK is about freedom and democracy, doesn't it?
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Posted on Techdirt - 26 June 2015 @ 8:08am
For a few years now, we've been covering the proliferation of the FBI's own plots, in which they basically set up a fake terrorist plot, and use their own undercover agents or (preferably) informants (generally former criminals who get paid and/or favors such as reduced sentences) to go out seeking young and gullible individuals to convince to "join" the plot (a plot that has no connection to reality). Then they stage a big arrest and an even bigger press conference about how they "stopped" a terrorist threat. We've written about examples of this over and over and over and over and over and over and over and over and over and over and over and over and over and over again. Apparently, a huge chunk of the FBI's resources goes toward manufacturing these kinds of fake plots, which help generate scary headlines, but rarely seem to do much other than putting young, gullible folks in jail.
The Intercept has now published a story of one of these cases that is so extreme and so ridiculous that it should make you angry. It is the story of the "Fort Dix Five" -- a case that Chris Christie led the prosecution of while he was a US Attorney before becoming governor. This case was part of his fame and his "tough on terror" bona fides. Now, as Christie prepares his presidential campaign announcement, the case against the Fort Dix Five is a big part of his biography:
In a 2012 speech to the American-Israel Public Affairs Committee (AIPAC), Christie recalled his success in the “uncovering of a plot to kill American servicemen and women,” telling a packed audience at the New York Hilton Hotel that he helped send to prison a group of “Muslim men practicing with semi-automatic weapons and screaming about jihad against the infidels.” Today, both the Republican Governors Association and the New Jersey Republican Party list the Fort Dix case as “one of Christie’s finest moments” under his biography.
Except, as the Intercept writeup details, despite putting three brothers away for life, there was no evidence against them. There was one friend of theirs, who liked to make up stories and brag a lot, who talked about an idea to shoot people at Fort Dix, but no indication at all that the other participants (mainly the three Duka brothers) knew about this plot at all. And then the fifth member of the "Fort Dix Five", upon hearing about the "plot", immediately went to the police to tell them about it
. The Intercept has also published a short film about the Duka brothers (narrated by their younger brother) that is worth watching:
The video shows clips of the footage the FBI got on the brothers, none of which ever has them discussing a plot against Fort Dix -- and actually tends to just show them messing around or even pushing back while the two FBI informants pushed them to get more involved in plots, which the brothers mostly ignored. Even the story of how the brothers came to the attention of the FBI is somewhat ridiculous. After a ski vacation in the Poconos, in which the brothers also did some horseback riding and went to a shooting range, they tried to make a DVD of some of the video they shot to give to everyone who went on the trip as a memento. In the video, while at the shooting range, some of the brothers say "allahu akbar" leading the guy making the DVDs at Circuit City to alert the feds.
Despite the two FBI informants pushing to try to get the brothers engaged in a plot for a year -- mainly by pressuring the one show off guy who kept saying he had talked to them about it -- there is no evidence of any actual plot whatsoever. One of the informants and the one show off guy both admit that the brothers had no role in the plot. Eventually, the FBI set up a fake gun buy -- as the brothers were fans of guns, but as non-US citizens couldn't buy guns legally. It's pretty clear in going through with the plan to buy some guns, they broke the law, but it had nothing to do with a terrorist plot at all, and so the charges left them baffled. But in the end it didn't matter:
Delivering Shain’s sentence, the culmination of a terrorism case that had lasted over two years, Judge Kugler said, “It’s not my place or desire at this time to review all the evidence … Suffice to say this defendant was in the middle of this plot. I’m realistic, I remember that they weren’t being taped 24 hours a day seven days a week.”
Brushing off the lack of direct evidence, Kugler added: “That there isn’t more explicit evidence does not concern me and obviously didn’t concern the jury either … I cannot deter this defendant, because of his belief system, from further crimes.”
Equally as disturbing is the way they included the fifth member of the "Fort Dix Five," Serdar Tatar, a friend of the Dukas who the braggart guy, Mohamad Shnewer, dragged into the "plot" to prove to the FBI informant that he could pull together people to pull off an attack. Except Tatar -- who wanted to become a police officer -- went to the police instead. And still got included in the charges.
Omar apparently felt more comfortable approaching Tatar than the Duka brothers and began courting the 23-year-old. He told him of the plot to attack Fort Dix and openly asked for his help: he needed the pizza delivery map.
Tatar, who had since left his father’s pizza shop and moved to Philadelphia, was working at a 7-Eleven when Sgt. Dean Dandridge of the Philadelphia Police Department came by for his daily coffee. On November 15, 2006, Tatar told Dandridge that he believed Omar might be planning a terrorist attack. Neither Tatar, nor Dandridge, had any way of knowing that Omar was an informant.
Dandridge left Tatar’s information with the FBI, expecting the bureau’s agents would be in touch soon. For three weeks, Tatar waited for the FBI to contact him. In the meantime, he recorded at least one conversation with Omar, so that when the authorities did reach out, he would have information to give them.
The full story and the video are infuriating. Yes, the FBI should be looking out for people looking to perform acts of terrorism and such, but in case after case after case we don't see them doing that. We see them setting up elaborate theater productions. In many of those cases, after lots of pressure, at the very least, the gullible and troubled individuals make some sort of statement to agree to participate in the "plot." This case -- as high profile as it is -- is even more exceptional in that 4 of the 5 participants never agreed to take part in any plot at all, with three of them not even knowing there was a plot.
The story is a complete travesty and raises serious questions about what the FBI and Chris Christie were doing, other than padding their resumes.
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Posted on Techdirt - 25 June 2015 @ 2:34pm
A modest attempt at patent reform (mainly targeting egregious patent trolling practices) is making its way through Congress these days at the usual glacial pace. However, even if it does eventually make it through, there is still a tremendous amount left to do on patent reform. Derek Khanna, who famously wrote the wonderful House Republican Study Committee report urging major copyright reform -- which so upset Hollywood that favors were called in to get the entire report retracted and cost Khanna his job, has now tried to write a similar report on patent reform. This one is for Lincoln Labs -- a think tank trying to present more free market/libertarian ideas into the technology policy arena.
As Khanna notes in this new paper, it's unfortunate to see many conservative groups have come out against patent reform, often based on a misuse of the word "property."
Recently, several conservative organizations—
many of whom receive funding from industries with
vested interests—have tried to preempt any form of
patent reform by arguing how patent reform would
violate their “property rights.”
Nothing could be further from the truth: janitors
do not have “property” in how to clean a building;
Apple does not have “property” in rounded
rectangles and “slide to unlock”; Amazon does not
have “property” in one-click checkout; Priceline
does not have “property” in the concept of reverse
auctions; Microsoft does not have “property” in
squiggly lines when you mistype a word; Smuckers
doesn’t have “property” in peanut butter and jelly
sandwiches, anymore than a known patent troll has
a “property” in the entire practice of podcasting;
certainly no one ought to have “property” in the
concept of the hyperlink; and we should probably
all agree that no one ought to have “property” in the
idea of exercising a cat by using a laser pointer.
Instead, as we've noted for years, patents are a form of a monopoly right
, and for those who claim to support the free market, you'd think they'd be very concerned about a slew of government granted monopolies (being granted at an ever increasing rate these days -- to the tune of hundreds of thousands a year).
Khanna also points out, rightly, that this massive rise in patent monopolies is a form of crony capitalism, used to keep out competition and to hold back free markets. He compares it to other highly regulated markets where it's quite obvious the regulations have little to do with the stated purpose, but now are designed mainly to protect those who already are in power.
As Khanna points out in the report, "more patents" does not equal "more innovation." If there are too many patents, it will only serve to clog the field and limit a vast amount of innovation. Thus he suggests there'a "curve" of patent optimality, and it's important to consider that in designing a patent system.
While the chart is a bit of a broad generalization (especially since different areas of innovation appear to react differently to different levels of patenting), the point is rather important, because too many people simply assuming that more patents automatically means more innovation.
So how do we reform all of this to make the system work better? He has a bunch of suggestions (some of which are already being considered):
- Increase patent quality requirements: There's a lot of detail in the report about how this can be done, and it's incredibly important. The incentive structure of the current patent system today encourages allowing crappy patents, which is why a huge number of patent applications are eventually approved. One important sub-suggestion in this arena is in fixing the "prior art" setup. Right now, patent examiners are not allowed to do crazy things like search the internet for prior art. Instead, they focus on older patents and journal articles. But in lots of areas, such as programming, that misses tons of prior art.
- Make patent applications accessible and require them to actually teach: Patent system supporters will often tell you that the true purpose of the patent system is to "disclose" the invention so that others can use it (either by license during the patent term or by anyone after). But, for many (especially in the software field) that's a joke. The patents almost never reveal anything useful at all in those fields. Khanna suggests a higher standard such that the patents actually do need to be useful to others in the field. That would be tremendously helpful.
- Reduce or eliminate business method and design patents: A large number of the worst patents are "business method" patents that are often just patenting common sense. There is no reason for this. Design patents are so similar to trademark law that most of the reasons for design patents can and should be covered by trademark law instead.
- Create an independent invention defense: This is my own personal favorite and the most important fix in my own list of recommendations. The idea that someone who came up with an idea entirely on their own isn't allowed to make use of their own invention seems like a much bigger "property rights" violation than invalidating bad patents. This would solve many of the worst problems of the patent system today, since so many shakedown efforts have absolutely nothing to do with copying, but just multiple people coming up with similar concepts.
- Loser pays: Also known as fee-shifting, this is a key component to patent reform that is currently on the table today to scare off frivolous patent suits that are just designed to shake people down.
- Speed up the patent approval and rejection process: Unfortunately, the report doesn't have much in the way of details as to how this would be done -- but I would argue that if most of the other recommendations were put in place, this wouldn't be much of a problem, because there would be a lot fewer bogus patent applications to deal with.
- Couple the US patent system with other systems to encourage innovation: The key idea here: look for things like the famous "x prizes" to incentive big bang innovations, rather than patents. This is an idea that's been out there for a while, and has support from a number of Nobel Prize winning economists. The UK just recently endorsed this idea as well. It's also pretty non-partisan, seeing as the biggest supporter of such an idea in Congress is Senator Bernie Sanders.
It's a really good report and well worth reading. It is lacking a couple of my own favorite suggestions, though. I still think we need to go beyond
just an "independent inventor's defense" to the point that independent invention is seen as a sign of obviousness
. Patents are only supposed to be granted if the invention is considered "non-obvious" to a person who is "skilled in the art." If we're seeing multiple people "skilled in the art" coming along and inventing the same damn thing, that certainly seems to suggest obviousness to me. Thus, if there is widespread independent invention within a short time frame, without any evidence of knowledge or copying, it should stand to reason that any such patents are invalid. This would clear out a ton of the problem patents.
It's unfortunate that some free market supporters have hijacked the story of patents to pretend that they're about the free market, when they're really about the opposite. Papers like Derek's hopefully move things back in the other direction.
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Posted on Techdirt - 25 June 2015 @ 10:41am
Okay, there are some legitimate gripes one can have about driver-on-demand services like Uber even if I think many are overstated. You can complain that you don't like the way the company runs its business. You can question the company's commitment to privacy. You can question the company's hardball tactics with politicians and journalists. You can even question the impact that the company has had on the market. These are all legitimate areas to explore, though the deeper you go, the more you're likely to realize that most of the complaints are exaggerated. However, the really crazy kneejerk anti-Uber sentiment tends to be ridiculous, and frequently driven by cab companies that just don't like the competition. For those who use Uber, the service is almost always significantly better, more convenient (and these days, often cheaper) than traditional cab service. That's what happens when you're enabling competition in a previously limited market.
But some folks still are going absolutely nuts over Uber, and France appears to be ground zero for the craziest of the crazy anti-Uber folks. We'd already mentioned that French officials had raided Uber's offices not too long ago, but today cab drivers decided to "protest" Uber by... showing that they're a bunch of violent hooligans. At least that seems to be the message cab drivers are sending with today's violent anti-Uber protests.
French taxi drivers blocked the entrances to Paris’s major airports and train stations, while disruptions were also reported in other cities, including Marseille and Aix-en-Provence in the South.
In Grenoble, near the border with Italy, taxi associations burned tires on the highway, while in Paris, police officers in riot gear used tear gas to disrupt the protests.
The anger from French taxi drivers is the latest in a series of challenges confronting Uber, which has been accused by taxi associations and some policy makers of breaking national transportation laws and of creating unfair competition to traditional taxis. The ride-booking service faces regulatory scrutiny in many of the countries in which it operates.
If the fire
situation didn't already give you a clue, these protests quickly went beyond mere protests, to true modern Luddism, with taxi drivers starting to flip cars
and setting more fires.
Of all people, Courtney Love was in Paris and found herself held hostage because of the violent attacks:
Originally, this morning I was just going to write a post about London's silly move to make Uber drivers pass a special test
akin to the infamous "The Knowledge,"
but then France cabbies went and did this sort of overreaction.
So here's the question: what do these cabbies think they're accomplishing here? If Uber wasn't a service that people wanted to use, then there wouldn't be a problem. But it is
something they want to use, and it's a service they like. Getting violent, flipping cars, setting fires and terrorizing passengers is going to do what exactly? Suddenly get everyone to think "why, yes, I'd rather pay extra money and take a ride with these sociopaths?" Yes, Uber can be a bit brash in how it carries itself, but the way to deal with that is to provide a better service
. Flipping cars and setting fires does not appear to be doing anything related to that.
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