from the i-don't-know-anything-about-this-stuff dept
Here's a suggestion: if you're a Congressional Representative whose job it is to regulate all sorts of important things, and you state in a hearing "I don't know anything about this stuff" before spouting off on your crazy opinions about how something must be done... maybe, just maybe educate yourself before confirming to the world that you're ignorant of the very thing you're regulating. We famously saw this during the SOPA debate, where Representatives seemed proud of their own ignorance. As we noted at the time, it's simply not okay for Congress to be proud of their own ignorance of technology, especially when they're in charge of regulating it. But things have not changed all that much apparently.
We already wrote about FBI Director James Comey's bizarre Congressional hearing earlier this week, in which he warned those in attendance about the horrible world that faced us when the FBI couldn't spy on absolutely everything. But the folks holding the hearing were suckers for this, and none more so than Rep. John Carter. The ACLU's Chris Soghoian alerts us to the following clip of Carter at that hearing, which he says "is going to be the new 'The Internet is a Series of Tubes'" video. I would embed the video, but for reasons that are beyond me, C-SPAN doesn't use HTTPS so an embed wouldn't work here (randomly: Soghoian should offer CSPAN a bottle of whiskey to fix that...).
Here's the basic transcript though:
Rep. John Carter: I'm chairman of Homeland Security Appropriations. I serve on Defense and Defense subcommittees. We have all the national defense issues with cyber. And now, sir, on this wonderful committee. So cyber is just pounding me from every direction. And every time I hear something, or something just pops in my head -- because I don't know anything about this stuff. If they can do that to a cell phone why can't they do that to every computer in the country, and nobody can get into it? If that's the case, then that's the solution to the invaders from around the world who are trying to get in here. [Smug grin]
FBI Director Comey: [Chuckle and gives smug, knowing grin]
Carter: Then if that gets to be the wall, the stone wall, and even the law can't penetrate it, then aren't we creating an instrument [that] is the perfect tool for lawlessness. This is a very interesting conundrum that's developing in the law. If they, at their own will at Microsoft can put something in a computer -- or at Apple -- can put something in that computer [points on a smartphone], which it is, to where nobody but that owner can open it, then why can't they put it in the big giant super computers, that nobody but that owner can open it. And everything gets locked away secretly. And that sounds like a solution to this great cyber attack problem, but in turn it allows those who would do us harm [chuckles] to have a tool to do a great deal of harm where law enforcement can't reach them. This is a problem that's gotta be solved.
Holy crap! Rep. John Carter just learned about encryption! And he thinks it's only on mobile phones but (ooooh, scary) might one day be used on "big super computers" to keep stuff safe. But he doesn't realize that it's been widely used for many, many, many years to keep his very own data safe and many of ours as well.
The conversation continues with Carter again demonstrating confusion over some rather basic concepts:
Carter: If you're following the Bill of Rights, you have every right to be able to go before a judge, present your probable cause, and if he sees it, that's a right, get a warrant and get into that machine. And I don't think there's a right of privacy issue in the world that prevents you following the law.
Uh, right. There isn't a right of privacy issue that prevents the FBI from going and getting a warrant, but the larger argument is whether or not individuals can protect other things privately -- and they've always been able to do so. If you and I have a conversation just between the two of us, there is no way for the government to then find out what that conversation was about. Because there's no way to "decrypt" a verbal conversation that is now stored entirely in our minds. That's been true forever. Yet we don't see Rep. Carter or Director Comey demanding recording devices to record every conversation. But, to Carter, the fact that you might be able to do the same thing with your email, is a "monster."
Carter: So if that's what they've created, they've created a monster, that will harm law enforcement, national security and everything else in this country. And this really needs to be addressed. And I wasn't even going to talk about that, but that upsets the heck out of me. 'Cause, you know, I don't think that's right.
Yeah, Rep. Carter, you're kind of decades too late. And you're totally wrong, too. It didn't create a monster. It didn't harm "everything else in this country." It protected millions of law abiding people -- including Carter by keeping their data safe. That's the whole point of encryption. Saying that "it needs to be addressed" is ridiculous. However, it does make it clear that Rep. Carter was being honest at the beginning when he admitted "didn't know anything about this stuff." Perhaps he should have stopped there.
At the end there's this bizarre dialogue about how law enforcement and judges handle information in a locked safe, but it seems like Carter still doesn't understand the question, finally saying that it's "bad policy" to have a safe that can't be opened by the manufacturer and "a crisis." So is Rep. Carter arguing that all safe's need to have backdoors that the manufacturers can open?
Doesn't Rep. Carter have staffers who can point out to him that computer encryption has been around for decades, and it's what keeps all sorts of stuff safe, including his banking details, his credit card purchases, the confidential memos he receives in Congress and much, much more? And yet, he's suddenly discovered encryption and he's decided it's bad because it might, someday, end up on computers?
About a month ago we covered the basics of the lawsuit by which the US government was seeking to keep pretty much all of Kim Dotcom's assets, despite the fact that Dotcom himself hasn't been tried -- and, in fact, it hasn't even been determined if he can be extradited to the United States (a country he's never visited). This week, that case took another step, with the judge, Liam O'Grady, who had already ruled that Kim Dotcom could be considered a "fugitive," more or less finalizing the theft of Dotcom's assets by declaring a default judgment in favor of the US. This isn't the end of the process (not by a longshot), but it highlights just how the US government can use some ridiculous procedures to steal millions in assets from someone who hasn't been shown to be guilty of anything.
As we discussed last time, the story of the raid on Kim Dotcom's rented home in New Zealand, the seizure of all of his cars, money, bank accounts, computers, servers, etc. is well known. That was part of a case for which Kim Dotcom was indicted (under what appears to be questionable legal reasoning -- but that's a separate issue). As has been widely reported, that case is still on hold while Dotcom fights extradition from New Zealand. The extradition fight will finally go to a New Zealand court later this summer. Once that's done, if Dotcom loses, he'll be sent to the US, where he'll face a criminal trial based on the indictment.
But this is actually separate from all of that. You see, when the US government grabbed or froze all of Dotcom's assets, they did so using an asset seizure procedure. Asset seizure is allowed in such cases, but the government then has to give that property back. What the government really wanted to do is keep all of Dotcom's tens of millions of dollars worth of assets -- and in order to do that it has to go through a separate process, known as civil asset forfeiture. It's technically a civil (not criminal) case, but (and here's the part that people find most confusing), it's not actually filed against Kim Dotcom at all, but rather against his stuff that the government already seized. Yes, it's technically an entirely separate lawsuit, that was only filed last summer (two and a half years after the government seized all of his stuff and shut down his company), entitled United States Of America v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto. And, as we noted last time, Attachment A is basically all of Kim Dotcom's stuff.
This whole process is known as an "in rem" proceeding -- meaning a lawsuit "against a thing" rather than against a person. And the "case" basically says all this stuff should be "forfeited" to the US government because it's the proceeds of some criminal activity. You would think that in order for such civil asset forfeiture to go forward, you'd then have to show something like a criminal conviction proving that the assets in question were, in fact, tied to criminal activity. You'd be wrong -- as is clear from what happened in this very case. Once the Justice Department effectively filed a lawsuit against "all of Kim Dotcom's money and stuff," Dotcom did what you're supposed to do in that situation and filed a challenge to such a ridiculous situation. And here the DOJ used the fact that Dotcom was fighting extradition to argue that he was a "fugitive." Judge O'Grady agreed with that last month, and that resulted in the decision earlier this week to then declare a "default judgment" in favor of the DOJ, and giving the US government all of Kim Dotcom's stuff.
A "default judgment?" As you know if you regularly read Techdirt, that's usually what happens when a defendant simply ignores a court case filed against him. As the court notes in this ruling, for that to happen in a civil asset forfeiture case, it means no one tried to block the claim:
Federal Rule of Civil Procedure 55 permits the court to grant a motion for default judgment when the well-pled allegations of the complaint establish plaintiff's entitlement to relief, and where a defendant has failed to plead or defend as provided by the rules.... In the civil forfeiture context, default judgment is permitted where no potential claimant has filed a response to the complaint...
A defendant in default, and a claimant who fails to assert a claim in rem, is deemed to have admitted all of the plaintiff's well-pled allegations of fact, which then form the basis for the judgment in the plaintiff's favor.
But, wait, you say: Kim Dotcom did file a complaint about the asset forfeiture, so how could a default judgment happen here? That's where the whole "fugitive" bit comes in. Because Dotcom won't come to the US, he's been deemed a fugitive, and thus the Judge simply hands over all of his stuff to the US government. And thus, without any sort of criminal conviction at all, the US gets to steal millions of dollars from Dotcom.
If that sounds insane, you're absolutely right. And, again, it is entirely possible that when all of this is over, Kim Dotcom will be found guilty of "criminal conspiracy." If that's the case, then at that point it's reasonable to discuss whether the government should get to keep all of his stuff. But it seems an absolute travesty of concepts like due process for the government to be able to take all of his money and stuff based on purely procedural reasons having to do with a separate criminal case that hasn't even been tried yet.
The process isn't over yet. Dotcom can still appeal this ruling, though the real problem is with the civil asset forfeiture process, rather than how it was applied in this particular case. Dotcom also has other options for the assets that are in New Zealand and Hong Kong, in using the local courts in those places to try to block the transfer of those assets to the US government. Not knowing enough about the law in either place, it's difficult to say what the chances of success of such a strategy would be. Either way, this seems like a classic case demonstrating how the civil asset forfeiture process appears to be little more than legalized theft by the US government.
About a year ago, when we switched to default HTTPS, we pointed out that one of the major reasons why other news sites refused to do the same was that most ad networks would not support HTTPS. In fact, we had to end a number of relationships with ad partners in order to make the move (but we felt it was worth it). In fact, the really crazy part was that many of the ad network partners we spoke to clearly had absolutely no clue about HTTPS, what it was and why it's important. But, over the past year, more and more attention has been placed on the value and importance of encrypting web traffic, so it's great to see that the internet ad industry is starting to wake up to this, even if it's pretty late in the process.
In fact, last year was the time to talk about security. From The New York Times to Google, the call went out for websites to encrypt communications with their users, protecting the integrity and privacy of information exchanged in both directions. Even the U.S. government heard this call, and is working to require HTTPS delivery of all publicly accessible Federal websites and web services.
This year, the advertising industry needs to finish catching up. Many ad systems are already supporting HTTPS - a survey of our membership late last year showed nearly 80% of member ad delivery systems supported HTTPS. That’s a good start, but doesn’t reflect the interconnectedness of the industry. A publisher moving to HTTPS delivery needs every tag on page, whether included directly or indirectly, to support HTTPS. That means that in addition to their ad server, the agency ad server, beacons from any data partners, scripts from verification and brand safety tools, and any other system required by the supply chain also needs to support HTTPS.
Let’s break that down a bit more - once a website decides to support HTTPS, they need to make sure that their primary ad server supports encryption. That ad server will sometimes need to include tags from brand safety, audience and viewability measurement, and other tools - all of which also need to support encryption. The publisher’s ad server will often direct to one of several agency ad servers, each of which will also need to serve over HTTPS. Each agency ad server also may include a variety of beacons or tags, depending on how the deal was set up, all of which similarly need to have encrypted versions available. That’s a lot of dependencies - and when one fails to support HTTPS, the website visitor’s experience is impacted, initiating a costly search for the failure point by the publisher.
While I question that 80% number -- given that we had difficulty finding many ad providers who supported HTTPS a year ago -- it's good to see the industry finally recognizing how important this is.
As I noted earlier this week, at the launch of the Copia Institute a couple of weeks ago, we had a bunch of really fascinating discussions. I've already posted the opening video and explained some of the philosophy behind this effort, and today I wanted to share with you the discussion that we had about free expression and the internet, led by three of the best people to talk about this issue: Michelle Paulson from Wikimedia; Sarah Jeong, a well-known lawyer and writer; and Dave Willner who heads up "Safety, Privacy & Support" at Secret after holding a similar role at Facebook. I strongly recommend watching the full discussion before just jumping into the comments with your assumptions about what was said, because for the most part it's probably not what you think:
Internet platforms and free expression have a strongly symbiotic relationship -- many platforms have helped expand and enable free expression around the globe in many ways. And, at the same time, that expression has fed back into those online platforms making them more valuable and contributing to the innovation that those platforms have enabled. And while it's easy to talk about government attacks on freedom of expression and why that's problematic, things get really tricky and really nuanced when it comes to technology platforms and how they should handle things. At one point in the conversation, Dave Willner made a point that I think is really important to acknowledge:
I think we would be better served as a tech community in acknowledging that we do moderate and control. Everyone moderates and controls user behavior. And even the platforms that are famously held up as examples... Twitter: "the free speech wing of the free speech party." Twitter moderates spam. And it's very easy to say "oh, some spam is malware and that's obviously harmful" but two things: One, you've allowed that "harm" is a legitimate reason to moderate speech and two, there's plenty of spam that's actually just advertising that people find irritating. And once we're in that place, it is the sort of reflexive "no restrictions based on the content of speech" sort of defense that people go to? It fails. And while still believing in free speech ideals, I think we need to acknowledge that that Rubicon has been crossed and that it was crossed in the 90s, if not earlier. And the defense of not overly moderating content for political reasons needs to be articulated in a more sophisticated way that takes into account the fact that these technologies need good moderation to be functional. But that doesn't mean that all moderation is good.
This is an extremely important, but nuanced point that you don't often hear in these discussions. Just today, over at Index on Censorship, there's an interesting article by Padraig Reidy that makes a somewhat similar point, noting that there are many free speech issues where it is silly to deny that they're free speech issues, but plenty of people do. The argument then, is that we'd be able to have a much more useful conversation if people admit:
Don't say "this isn't a free speech issue", rather "this is a free speech issue, and I’m OK with this amount of censorship, for this reason.” Then we can talk."
Soon after this, Sarah Jeong makes another, equally important, if equally nuanced, point about the reflexive response by some to behavior that they don't like to automatically call for blocking of speech, when they are often confusing speech with behavior. She discusses how harassment, for example, is an obvious and very real problem with serious and damaging real-world consequences (for everyone, beyond just those being harassed), but that it's wrong to think that we should just immediately look to find ways to shut people up:
Harassment actually exists and is actually a problem -- and actually skews heavily along gender lines and race lines. People are targeted for their sexuality. And it's not just words online. It ends up being a seemingly innocuous, or rather "non-real" manifestation, when in fact it's linked to real world stalking or other kinds of abuse, even amounting to physical assault, death threats, so and so forth. And there's a real cost. You get less participation from people of marginalized communities -- and when you get less participation from marginalized communities, you lead to a serious loss in culture and value for society. For instance, Wikipedia just has fewer articles about women -- and also its editors just happen to skew overwhelmingly male. When you have great equality on online platforms, you have better social value for the entire world.
That said, there's a huge problem... and it's entering the same policy stage that was prepped and primed by the DMCA, essentially. We're thinking about harassment as content when harassment is behavior. And we're jumping from "there's a problem, we have to solve it" and the only solution we can think of is the one that we've been doling out for copyright infringement since the aughties, and that's just take it down, take it down, take it down. And that means people on the other end take a look at it and take it down. Some people are proposing ContentID, which is not a good solution. And I hope I don't have to spell out why to this room in particular, but essentially people have looked at the regime of copyright enforcement online and said "why can't we do that for harassment" without looking at all the problems that copyright enforcement has run into.
And I think what's really troubling is that copyright is a specific exception to CDA 230 and in order to expand a regime of copyright enforcement for harassment you're going to have to attack CDA 230 and blow a hole in it.
She then noted that this was a major concern because there's a big push among many people who aren't arguing for better free speech protections:
That's a huge viewpoint out right now: it's not that "free speech is great and we need to protect against repressive governments" but that "we need better content removal mechanisms in order to protect women and minorities."
From there the discussion went in a number of different important directions, looking at other alternatives and ways to deal with bad behavior online that get beyond just "take it down, take it down," and also discussed the importance of platforms being able to make decisions about how to handle these issues without facing legal liability. CDA 230, not surprisingly, was a big topic -- and one that people admitted was unlikely to spread to other countries, and the concepts behind which are actually under attack in many places.
That's why I also think this is a good time to point to a new project from the EFF and others, known as the Manila Principles -- highlighting the importance of protecting intermediaries from liability for the speech of their users. As that project explains:
All communication over the Internet is facilitated by intermediaries such as Internet access providers, social networks, and search engines. The policies governing the legal liability of intermediaries for the content of these communications have an impact on users’ rights, including freedom of expression, freedom of association and the right to privacy.
With the aim of protecting freedom of expression and creating an enabling environment for innovation, which balances the needs of governments and other stakeholders, civil society groups from around the world have come together to propose this framework of baseline safeguards and best practices. These are based on international human rights instruments and other international legal frameworks.
In short, it's important to recognize that these are difficult issues -- but that freedom of expression is extremely important. And we should recognize that while pretty much all platforms contain some form of moderation (even in how they are designed), we need to be wary of reflexive responses to just "take it down, take it down, take it down" in dealing with real problems. Instead, we should be looking for more reasonable approaches to many of these issues -- not in denying that there are issues to be dealt with. And not just saying "anything goes and shut up if you don't like it," but that there are real tradeoffs to the decisions that tech companies (and governments) make concerning how these platforms are run.
For many years, we've noted that while some in the legacy entertainment industry seem to think that there's a "battle" between "Hollywood" and "Silicon Valley" it's a very weird sort of war in which one of those parties -- Silicon Valley -- keeps supplying more and more "weapons" to the other party to help it adapt and succeed in a changing world. There are many examples of this, but the clearest is with the VCR, which the MPAA fought hard to outlaw in the 1970s and 1980s. The MPAA's Jack Valenti famously said in 1982 that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." It was just four years later that home video revenue surpassed box office revenue for Hollywood. It wasn't the Boston strangler, it was the savior. Similar stories can be told elsewhere. The legacy entertainment industry has sued over MP3 players and YouTube, yet has now (finally) embraced online music and video years later than it should have.
And yet, that same legacy industry keeps trying to do everything to hamstring innovation that will only help it. A few years ago, we wrote about a fantastic post (sadly now gone from the internet) by Tyler Crowley, talking about the entrepreneur's view of innovation options and how many areas are welcoming for innovation -- which he described using the analogy of islands:
For tech folks, from the 35,000' view, there are islands of opportunity. There's Apple Island, Facebook Island, Microsoft Island, among many others and yes there's Music Biz Island. Now, we as tech folks have many friends who have sailed to Apple Island and we know that it's $99/year to doc your boat and if you build anything Apple Island will tax you at 30%. Many of our friends are partying their asses off on Apple Island while making millions (and in some recent cases billions) and that sure sounds like a nice place to build a business.
But what about Music Biz Island? Not so much:
Now, we also know of Music Biz Island which is where the natives start firing cannons as you approach, and if not stuck at sea, one must negotiate with the chiefs for 9 months before given permission to dock. Those who do go ashore are slowly eaten alive by the native cannibals. As a result, all the tugboats and lighthouses (investors, advisors) warn to stay far away from Music Biz Island, as nobody has ever gotten off alive. If that wasn't bad enough, while Apple and Facebook Island are built with sea walls to protect from the rising oceans, Music Biz Island is already 5 ft under and the educated locals are fleeing for Topspin Island.
As we pointed out, this leads to the legacy entertainment companies poisoning the well that contains the innovation water it desperately needs.
There's a parallel to this in terms of copyright laws. As the legacy entertainment industry keeps pushing for more draconian copyright laws, it only serves to scare more investors away. When we get good results, like the ruling in the Cablevision case saying that cloud-based services were legal, it resulted in a huge growth in investment in cloud services -- in contrast to much less spending in Europe, where the laws were a lot more ambiguous.
A new study from Fifth Era and Engine takes this finding even further, highlighting how bad or vague copyright laws are seriously scaring off investment in necessary platforms and innovation. A big part of this appears to be worries about absolutely insane statutory damages awards. The study surveyed tons of investors around the globe and they found an obvious concern about investing in areas where lawsuits could so easily destroy platforms:
In all eight countries surveyed, early stage investors view the risk of
uncertain and potentially large damages as of significant concern as they look to invest in [Digital Content Intermediaries]. 85% agree or
strongly agree that this is a major factor in making them uncomfortable about investing in [Digital Content Intermediaries].
And they're very specific about how the direct concern involves music and videos and the threat of a lawsuit that could simply put those companies out of business:
88% of worldwide investors surveyed said they are uncomfortable investing in [Digital Content Intermediaries] that offer user generated music
and video given an ambiguous regulatory framework.
This is really unfortunate on a number of different levels:
First, it limits the necessary innovation in services and business models that are likely to create the success stories of tomorrow. We need more experiments and platforms that allow places for artists and creators to create, promote, connect with fans and make money for their efforts. Yet if the legacy industry is scaring away all the investors, that's not going to happen.
Second, it locks in the few dominant players of today. Want to build the next YouTube? Good luck. You'll need lots of money to do so, but you're less likely to get it at this stage. The legacy players keep hating the big successful platforms, but don't realize that their own moves lock those players in the dominant positions.
Third, without competition in these spaces and platforms, content creators are less likely to get the best deals. When the legacy industry basically allows one player to become dominant, then it can set terms that are more in its favor. This is what so many from the legacy content industry are complaining about today -- without recognizing that their own actions regarding copyright law have helped create that situation.
Of course, many in those legacy industries actually see this sort of thing as a feature not a bug of pushing for greater copyright protectionism. They think -- ridiculously -- that by hamstringing innovation and investment they get to hold onto their perch longer. This is just wrong. It's trying to hold back the tide, while driving fans to alternative and often unauthorized platforms instead. Rather than supporting the innovation they need, pushing for bad copyright laws only helps to alienate the innovators the industry needs the most and the biggest fans whose support the content industry needs to thrive.
from the keeping-you-safe...-or-keeping-you-vulnerable dept
Back in October, we highlighted the contradiction of FBI Director James Comey raging against encryption and demanding backdoors, while at the very same time the FBI's own website was suggesting mobile encryption as a way to stay safe. Sometime after that post went online, all of the information on that page about staying safe magically disappeared, though thankfully I screenshotted it at the time:
If you really want, you can still see that information over at the Internet Archive or in a separate press release the FBI apparently didn't track down and memory hole yet. Still, it's no surprise that the FBI quietly deleted that original page recommending that you encrypt your phones "to protect the user's personal data," because the big boss man is going around spreading a bunch of scare stories about how we're all going to be dead or crying if people actually encrypted their phones:
Calling the use of encrypted phones and computers a “huge problem” and an affront to the “rule of law,” Comey, painted an apocalyptic picture of the world if the communications technology isn’t banned.
“We’re drifting to a place where a whole lot of people are going to look at us with tears in their eyes,” he told the House Appropriations Committee, describing a hypothetical in which a kidnapped young girl’s phone is discovered but can’t be unlocked.
So, until recently, the FBI was actively recommending you encrypt your data to protect your safety -- and yet, today it's "an affront to the rule of law." Is this guy serious?
More directly, this should raise serious questions about what Comey thinks his role is at the FBI (or the FBI's role is for the country)? Is it to keep Americans safe -- or is it to undermine their privacy and security just so it can spy on everyone?
Not surprisingly, Comey pulls out the trifecta of FUD in trying to explain why it needs to spy on everyone: pedophiles, kidnappers and drug dealers:
“Tech execs say privacy should be the paramount virtue,” Comey continued, “When I hear that I close my eyes and say try to image what the world looks like where pedophiles can’t be seen, kidnapper can’t be seen, drug dealers can’t be seen.”
Except we know exactly what that looks like -- because that's the world we've basically always lived with. And yet, law enforcement folks like the FBI and various police departments were able to use basic detective work to track down criminals.
If you want to understand just how ridiculous Comey's arguments are, simply replace his desire for unencrypted devices with video cameras in every corner of your home that stream directly into the FBI. Same thing. Would that make it easier for the FBI to solve some crimes? Undoubtedly. Would it be a massive violation of privacy and put many more people at risk? Absolutely.
It's as if Comey has absolutely no concept of a cost-benefit analysis. All "bad people" must be stopped, even if it means destroying all of our freedoms, based on what he has to say. That's insane -- and raises serious questions about his competence to lead a government agency charged with protecting the Constitution.
from the dangerous-games,-played-out-behind-closed-doors dept
For years now, we've been warning about the problematic "ISDS" -- "investor state dispute settlement" mechanisms that are a large part of the big trade agreements that countries have been negotiating. As we've noted, the ISDS name is designed to be boring, in an effort to hide the true impact -- but the reality is that these provisions provide corporate sovereignty, elevating the power of corporations to put them above the power of local governments. If you thought "corporate personhood" was a problem, corporate sovereignty takes things to a whole new level -- letting companies take foreign governments to special private "tribunals" if they think that regulations passed in those countries are somehow unfair. Existing corporate sovereignty provisions have led to things like Big Tobacco threatening to sue small countries for considering anti-smoking legislation and pharma giant Eli Lilly demanding $500 million from Canada, because Canada dared to reject some of its patents noting (correctly) that the drugs didn't appear to be any improvement over existing drugs.
The US has been vigorously defending these provisions lately, but with hilariously misleading arguments. The White House recently posted a blog post defending corporate sovereignty, with National Economic Council director Jeff Zients claiming the following:
ISDS has come under criticism because of some legitimate complaints about poorly written agreements. The U.S. shares some of those concerns, and agrees with the need for new, higher standards, stronger safeguards and better transparency provisions. Through TPP and other agreements, that is exactly what we are putting in place.
There's something rather hilarious about saying that there needs to be "greater transparency" and promising that the secret agreement you're negotiating behind closed doors and won't share with the public has those provisions in them somewhere.
The leaked text would empower foreign firms to directly “sue” signatory governments in extrajudicial investor-state dispute settlement (ISDS) tribunals over domestic policies that apply equally to domestic and foreign firms that foreign firms claim violate their new substantive investor rights. There they could demand taxpayer compensation for domestic financial, health, environmental, land use and other policies and government actions they claim undermine TPP foreign investor privileges, such as the “right” to a regulatory framework that conforms to their “expectations.”
The leaked text reveals the TPP would expand the parallel ISDS legal system by elevating tens of thousands of foreign-owned firms to the same status as sovereign governments, empowering them to privately enforce a public treaty by skirting domestic courts and laws to directly challenge TPP governments in foreign tribunals.
Existing ISDS-enforced agreements of the United States, and of other developed TPP countries, have been almost exclusively with developing countries whose firms have few investments in the developed nations. However, the enactment of the leaked chapter would dramatically expand each TPP government’s ISDS liability. The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government, while empowering more than 18,000 additional U.S.-owned firms to launch ISDS cases against other signatory governments. (These are firms not already covered by an ISDS-enforced pact between the United States and other TPP negotiating governments.)
As for all that "transparency" that the White House promised? Yeah, don't count on it:
As revealed in Section B of the leaked text, these tribunals would not meet standards of transparency, consistency or due process common to TPP countries’ domestic legal systems or provide fair, independent or balanced venues for resolving disputes. For instance, the tribunals would be staffed by private sector lawyers unaccountable to any electorate, system of precedent or substantive appeal. Many of those involved rotate between acting as “judges” and as advocates for the investors launching cases against governments. Such dual roles would be deemed unethical in most legal systems. The leaked text does not include new conflict of interest rules, despite growing concern about the bias inherent in the ISDS system.
Contrary to claims from the Obama administration that the TPP’s investment chapter would somehow limit the uses and abuses of the controversial ISDS regime, much of the leaked text would replicate, often word-for-word, the terms found in past U.S. ISDS-enforced agreements. However, some terms would widen the scope of domestic policies and government actions that could be challenged before extrajudicial tribunals, without offering meaningful new safeguards for those policies.
The basic concept behind early ISDS/corporate sovereignty provisions may have made sense -- in which companies that were afraid to invest in developing nations out of fear the government would come in and seize their factory or whatever -- but expanding it to cover basically all international trade, while the definitions are interpreted to mean companies can challenge any law they don't like in front of a set of private judges (who also work for those same companies in other cases) is ridiculously problematic.
And, once again, we see why the USTR absolutely refuses to be transparent about this by releasing this information publicly. It knows that such a deal would be bad for the American public, so it keeps them secret until nothing can be done. I guess if you're undermining democracy by giving corporations power over lawmakers, you might as well go all the way and hide your proposals from the voting public at the same time.
Last week, the Wall Street Journal published an article detailing how one part of the FTC, the competition bureau, wanted to go after Google for antitrust violations, claiming it was eventually "overruled" by the FTC's commissioners who sided with the economic bureau that felt there was no real antitrust violations in Google's practices. The WSJ got its hands on part of the internal report by accident -- saying that the FTC inadvertently handed it over as a response to a different FOIA request, but that it was only part of the internal report. Late yesterday, the WSJ released the document it received (which you can see here in PDF form). Somewhat bizarrely, it's every other page of the report, suggesting some sort of weird screwup inside the FTC.
I recommend reading through the whole thing (the final third is all footnotes, but they're also super interesting). It details a variety of background tidbits about the search industry, some of which have never been revealed before. If you want an annotated version, I highly recommend reading Danny Sullivan's live tweets as he read through the report and the footnotes.
However, now that we get to read all the details, it seems like the Wall Street Journal oversold the story. It doesn't really show a huge conflict within the FTC at all. Basically, the competition bureau discussed three practices that it found problematic and potentially worthy of prosecution. And, yes, the FTC eventually decided not to prosecute. But -- and this is the important part that most of the coverage seems to ignore -- the final agreement between the FTC and Google involve Google agreeing to cease two of the three questionable practices (and, frankly, the third "questionable" practice doesn't seem that questionable).
And, on top of that, the one practice that got most of the attention (both early on in the antitrust complaints against Google and in the coverage about this leaked report) -- the demoting of vertical search engine results in Google's search -- was the part that even the competition bureau found likely did not violate any antitrust laws, and was actually for the benefit of Google's users.
Specifically, most of the focus on Google's potential "anti-trust" activists has been on its impact on "competing" search engines, specifically "vertical" search engines for things like "local," "travel," and "shopping." And the report disclosed pretty clear evidence that Google purposely pushed down some of those results to promote its own results -- but there were good reasons for this, and as such, it appears that pretty much everyone at the FTC -- including those who wanted to punish Google for other things, agreed that there was no antitrust violation here. That's mostly because those efforts actually benefited consumers. And it's not difficult to see how: when you do a search on Google you want to get to results. You don't want to be sent off to another vertical search engine with another set of results. While the FTC agrees that this may harm vertical search competitors, that doesn't mean it harmed consumers. The FTC recognizes that in an effort to provide a better experience to consumers, that might harm other search engines, but that's not an antitrust violation:
Indeed, the evidence
paints a complex portrait of a company working toward an overall goal of maintaining its
market share by providing the best user experience, while simultaneously engaging in tactics
that resulted in harm to many vertical competitors, and likely helped to entrench Google's
monopoly power over search and search advertising. The determination that Google's
conduct is anticompetitive, and deserving of condemnation, would require an extensive
balancing of these factors, a task that courts have been unwilling- in similar circumstances -
to perform under Section 2. Thus, although it is a close question, Staff does not recommend
that the Commission move forward on this cause of action.
However, the report does highlight those other areas where Google's actions were a bit more questionable. The key one is in scraping the sites of vertical competitors and using their data in its own vertical offerings -- and then threatening to remove those vertical offerings from the general search if they wanted to have that data not used for vertical search activities. As the report noted, this was an internal policy choice by Google, rather than one of technical necessity:
Indeed, Google almost simultaneously launched a new reviews-collection product --
Hotpot -- to (again) try to solicit original user reviews, this time seeding it with eviews from
third-party websites with no attribution. Yelp, TripAdvisor, and CitySearch all complained
to Google. All of these parties sought removal of their user review content from Google
Placcs/Hotpot, as well as the removal of their reviews from Google's aggregated review
count on the main SERP. This time, however, Google told each company that if Yelp,
TripAdvisor, and CityScarch wanted to have their content removed from Google
Places/Hotpot, they would have to exclude their websites from being crawled by Google
altogether, which meant complete exclusion from Google's SERP. This was not technically necessary -- it was just a policy decision by Google.
As the competition bureau noted, this move -- threatening to remove those sites from overall search results if they didn't allow the use of the data to prop up its own (underperforming) vertical sites -- was clearly problematic:
Google's threat (and willingness) to
degrade its own web search product- by banishing high-quality vertical websites from its
web search results altogether- suggests that Google's motive in scraping high-quality
content from its vertical competitors was not procompetitive.
Indeed, it seems like Google could have easily agreed to remove that content from its vertical products without removing it from the general search results -- and, in fact, that was one of the things Google agreed to stop doing in its agreement with the FTC:
Google also has promised to provide all websites the option to keep their content out of Google’s vertical search offerings, while still having them appear in Google’s general, or “organic,” web search results. The FTC investigated allegations that Google misappropriated content, such as user reviews and star ratings, from competing websites in order to improve its own vertical offerings, such as Google Local and Google Shopping.
The other sketchy behavior was the way Google's Adwords API proactively blocked companies from building tools that would work with competing search ad providers (mainly Microsoft's AdCenter). Here, it appears that there was actually support within Google to do away with such restrictions, as many realized that it would be better for the overall market to allow companies to create cross-platform tools. However, Larry Page himself stepped in and blocked this plan:
In December 2008, Holden, senior vice-president of ad products Susan Wojcicki, and
others met to discuss the issue. Of the meeting, Holden wrote:
[O]ne debate we are having is whether we should eliminate our API T&Cs
requirement that AW [AdWords] features not be co-mingled with competitor
network features in SEM cross-network tools like DART Search. We are
advocating that we eliminate this requirement and that we build a much more
streamlined and efficient DART Search offering and let SEM tool provider
competitors do the same. There was some debate about this, but we concluded that it is better for customers and the industry as a whole to make things more efficient and we will maximize our opportunity by moving
quickly and providing the most robust offering.
In February 2009, Holden wrote the executive summary for a DART Search product
review, in which he advocated that Google "alter the AdWords Ts&Cs to be less restrictive
and produce the leading cross-network toolset that increases advertiser/agency efficiency."
Such a move, he wrote, would "[r]educe friction in the search ads sales and management
process and grow the industry faster." In April 2009, in light of evident disapproval from
Larry Page about the idea of removing the co-mingling restriction, Holden wrote: "We've
heard that and we will focus on building the product to be industry-leading and will evaluate
it with him when it is done and then discuss co-mingling and enabling all to do it."
It's good to see that within Google they wanted to remove these restrictions, and recognized that a more open, less-restrictive API would have resulted in a better overall experience. It's unfortunate that Larry Page stepped in to block that, and actually this was a part of the final FTC settlement, where the FTC agreed not to prosecute the company. It didn't get much attention at the time, but Google "agreed to give online advertisers more flexibility to simultaneously manage ad campaigns on Google’s AdWords platform and on rival ad platforms."
Frankly, it seems like these two issues -- both of which it agreed to stop doing -- were clearly bad decisions on Google's part, and it's a good thing that the company is no longer doing either. Both appear to go against the basic principles that Google often sets out for itself publicly, in terms of promoting openness and improving the overall ecosystem.
As for the third "bad" practice -- that one seems a bit more bizarre and it's no wonder that the FTC eventually decided not to do anything. The competition bureau argued that Google used exclusive deals to prevent partners from also working with Microsoft, and this may have cost Microsoft some business. However, there wasn't much evidence to support this in reality, and the report notes that most of the various partners don't even seem particularly bothered by this setup. They could negotiate different deals and weren't too worried about negotiating exclusive deals. It's not all that surprising that the FTC eventually just let that issue drop.
In the end, the document is really interesting and worth reading (even if you're only reading every other page). It certainly highlights a few questionable activities on Google's part that we're glad it agreed to stop doing. It seems like if Google just continued to focus on providing the best overall offering and promoting a more open internet, it never would have gotten into that mess in the first place -- and hopefully that's a lesson that Google will remember going forward.
Either way, as some have been pointing out, it seems like the FTC made the right decision in not prosecuting, as the competitors that the FTC was worried about have been growing pretty rapidly since then, while Google's market position has been declining. Such is the nature of the rapidly changing internet...
Earlier this year, we noted that famed copyright trolling operation Perfect 10 had lost big time in its lawsuit against Giganews. Perfect 10 is a copyright trolling operation that pretends to be a pornographic magazine publisher, but whose main line of business has long been threatening online platforms to pay up linking to or hosting some of its content that users uploaded. While some online websites have paid up to avoid lawsuits, in basically every case that went to trial, Perfect 10 has lost big time, often setting very useful and very important precedents on copyright and fair use. If you haven't gone through Perfect 10's Hall of Fame in setting up great precedents for fair use and intermediary liability protections, check out some of the classics:
And now we can add Perfect 10 v. Giganews to the list with a great final act: the judge in the case has ordered Perfect 10 to pay up $5.6 million in attorneys' fees for filing such a ridiculous lawsuit. We knew that the judge was unhappy with Perfect 10 based on the original ruling, but the ruling on attorneys' fees [pdf] is worth reading as well. The court notes that it has wide latitude in determining if attorneys' fees are reasonable, especially in copyright cases, even though such awards are pretty rare. The court admits that it's a "close call," but doesn't find Perfect 10's claims to be "frivolous." However, that doesn't mean that the court doesn't recognize the games that Perfect 10 has been playing: copyright trolling as a tax write-off.
Court observed in both its order granting Giganews’ summary judgment motion on
indirect copyright infringement and in its order denying Perfect 10’s motion, Perfect
10’s undisputed conduct in this action has been inconsistent with a party interested in
protecting its copyrights.... All of the evidence
before the Court demonstrates that Perfect 10 is in the business of litigation, not
protecting its copyrights or “stimulat[ing] artistic creativity for the general public
Perfect 10 has never been a self-sustaining business, and to date, has lost more
than $50 million dollars, if not more.... However, this loss appears to be largely intended by Perfect 10’s President and CEO
Norman Zada, who described Perfect 10 to non-party Rebekah Chaney as a “tax writeoff.”... Because Perfect 10 is a closely held
corporation, Zada testified he is able to deduct Perfect 10’s significant losses on his
personal income taxes.... In fact, Zada told Ms. Chaney that he “needed [Perfect 10] to offset money he made in the market” and “needed the
loss to represent how small businesses couldn’t make money because of piracy on the
Rather than bringing suit for the purpose of protecting its copyrights and
stimulating artistic creativity, the evidence reveals that Zada’s interest in the
copyrights held by his “tax write-off” is solely in litigation. In deposition, for
example, Perfect 10’s President and CEO Norman Zada testified that, to date, it has
filed between 20 and 30 copyright infringement lawsuits.... In the life of the company, more than half of Perfect 10’s revenues have
been generated by litigation.... However, all of those revenues
were generated by settlements and defaults –Perfect 10 has never obtained a judgment
in a contested proceeding in any of its roughly two dozen copyright lawsuits.... Similarly, litigation expenses make up the largest share of Perfect 10’s
expenses, which are on par with, if not greater than, Perfect 10’s personnel expenses.... In his capacity as President and CEO, Zada spends “eight hours a day,” 365 days a year on litigation..., “working on
various court cases that [Perfect 10] ha[s] going on.” ...
Indeed, Zada admitted that, in the past, Perfect 10 has expressly purchased copyrights
from other copyright holders “because [Perfect 10] thought they would be helpful in
[its] litigation efforts ... .”
The evidence before the Court also demonstrates Perfect 10 continued that
pattern in this litigation, which, as the Court previously noted, has been inconsistent
with that of a plaintiff interested in actually protecting its copyrights from
As has been noted before, part of the game that Perfect 10 plays is to send ridiculous and impossible "takedown" demands, sometimes just including printouts of thumbnails, with no clear explanation over where those images reside or what URLs they're found on. The court noted this as well:
Perfect 10 has a long,
documented history of sending service providers inadequate takedown notices under
the DMCA that fail to identify specific infringing material, and then bringing suit for
the service providers’ failure to respond to deficient DMCA takedown notices....
Despite numerous admonitions that its
inadequate notices “unduly burden service providers” and reminders that “the
burden of policing copyright infringement” falls “squarely on” Perfect 10 ..., Perfect 10 never attempted to submit a takedown notice in this action that Giganews could actually use.
Indeed, even after Perfect 10 admittedly learned of a method to produce a
takedown notice in “15 minutes” that would result in almost immediate removal of
“90 percent of the Perfect 10 content on Giganews’s servers,” Perfect 10 refused to do
Given all that, the court had no problem ordering that Perfect 10 pay Giganews' legal fees. It laughs off the idea that such a finding would scare off "starving artists" from suing over infringement, since that situation is totally different:
In light of Perfect 10’s well-documented improper motive in bringing suit..., the Court has little concern that an award of attorneys’ fees
in this action will discourage “starving artists” from protecting their copyrights. If
anything, it will discourage serial litigants from bringing unmeritorious suits and then
unnecessarily driving up litigation costs in order to drive a settlement. Such a result is
entirely consistent with the purpose of the Copyright Act, and this factor weighs in
favor of an award of attorneys’ fees.
Later, the court mocks Perfect 10's argument that it shouldn't have to pay legal fees because it is basically insolvent and heavily in debt. In fact, the court notes that Perfect 10 has been making this same exact claim for years in just about every case, making it somewhat unbelievable:
Perfect 10 admits that it has likely “never been
solvent” in more than 15 years of operation.... Indeed,
Perfect 10 has repeatedly reported that it was on the verge of bankruptcy. See, e.g.,
Perfect 10, Inc. v. Google, ... (noting Perfect 10’s
argument the same year this action was filed that Perfect 10 was “very close to
bankruptcy”). That is, despite the fact that Perfect 10’s primary business is copyright
litigation, Perfect 10 effectively argues that it could never be subject to any attorneys’
fee award under the Copyright Act because it is perpetually in debt and on the verge
of bankruptcy. The Court is not persuaded, particularly where, as here, the evidence
suggests Perfect 10’s impecunity is intentional.
Much of the rest of the ruling goes into the details of calculating the attorneys' fees (and again pointing out some bizarre claims by Perfect 10 in trying to lower the fees). In the end, the court does award slightly less than Giganews requested, but it's still pretty close. Who knows if the "insolvent" Perfect 10 will actually ever pay up, but the real question is if it will ever stop filing such questionable lawsuits.
Nearly a year ago, we wrote about an absolutely ridiculous situation in which Google AdSense threatened to cut off all of our ads (which they had just spent months begging us to use) because the ads showed up on this page, which has a story about a publicity rights dispute concerning a music video that includes someone dancing suggestively around a pole. The morality police at AdSense argued that this news story -- which was about a legal dispute concerning the video -- somehow violated AdSense's terms against putting the ads on content including "strategically covered nudity" and "lewd or provocative poses." Apparently, the AdSense team has no "newsworthy" exception to these idiotic policies.
After that story was posted, we heard from people inside Google who insisted that they were pushing the AdSense team to deal with similar situations in a much smarter way: such as simply turning off the ads on those individual pages rather than killing entire accounts. But, frankly, even that is pretty pointless. Why not fix AdSense's terms so that having ads appear on a news story about such content doesn't trigger the threat to shut down AdSense altogether?
It appears that the AdSense morality police still haven't figured this out. Last week a similar kerfuffle arose when the AdSense team threatened antiwar.com because it had an article (from a while back) that posted the infamous photos of US soldiers mistreating prisoners at the Abu Ghraib prison in Iraq. Those photos are famous for their newsworthiness, and yet Google AdSense said they were a terms of service violation for being "violent or disturbing content, including sites with gory text or images."
As with the threat to kill our own AdSense account, this is simply idiotic. Yes, Google can set whatever terms and conditions it wants for sites to use AdSense, but acting as morality police -- especially over newsworthy content on news websites -- is profoundly stupid and shortsighted. We had hoped that our experience with a similarly ridiculous policy decision by Google last year would convince the company to fix its policies. Unfortunately, it appears that Google is still playing morality police and trying to dictate editorial choices.
We noted that this was likely about a month ago, but IP-Watch is confirming that the USTR has bullied Japan, Canada, New Zealand and three other countries into agreeing that copyright terms must be life plus 70 years in the latest draft of the TPP agreement. This makes absolutely no sense, in part because even the head of the US copyright office has argued for the US to look at returning to the "life plus 50" baseline standard currently required by the Berne Agreement, and which those countries already abide by. Yet, here the USTR is rejecting that idea and saying that "life plus 70" will be required. That means that those countries will now have to jack up their copyright terms for absolutely no reason, even though it almost certainly harms the public for no benefit.
It's not like these countries don't know this is a bad idea. It's been explained to them multiple times that even though the countries that have life plus 70 already are regretting it -- and yet the USTR pushed for it anyway, and these countries backed down.
As we've noted for years, this is the really nefarious part of the agreements that the USTR negotiates. While this particular change won't go against current US law, it makes copyright reform virtually impossible. That's the real point of all this: by tying us up in "international obligations," negotiated in backroom deals with no public input or review, the USTR is able to block Congress from having any meaningful chance at fixing the US's broken copyright laws. Anyone who tries to put in place more sensible regimes will be told that they're "violating international obligations" which will tie up the US government in things like those corporate sovereignty ISDS tribunals, in which merely fixing American copyright law will be seen as an unfair "appropriation" by the US government.
This is exactly the reason why these trade deals are being negotiated in this manner. It is not, as some will tell you, about knocking down trade barriers. There is nothing in the fact that Canada has a "life plus 50 regime" that is a "trade barrier" for the US. Sure, some will argue that things like James Bond going into the public domain in Canada is some sort of "trade barrier" with the US, but that's ridiculous. It is no such thing. So why is the USTR doing this, other than to make sure folks employed at the USTR can get cushy jobs with copyright lobbying groups when they want to quadruple their salaries down the road?
For more than a decade and a half here on Techdirt, one of the common themes we've discussed are business models for musicians in the internet era. On this week's podcast, we have composer Adam Fong on to discuss his thoughts, both as a composer and as the founder and director of the Center for New Music in San Francisco (which is also where we record many of our podcasts). Fong provides a different perspective — especially discussing those who are classically trained, and not looking to be rock stars, noting the different challenges and opportunities for such musicians. The music on this week's episode is Adam's own composition, Five Times Remembered.
As we've noted many times in the past, the entertainment industry likes to take a multi-pronged approach to its quixotic efforts to "stop piracy" (which could be much better dealt with by simply giving the public more of what they want). Working on federal copyright law to continually expand it is one main strategy, but there are a lot of others as well, including pressuring private companies to voluntarily censor content, getting international trade agreements to force laws to change and... getting random state laws to force through big changes quietly. This last strategy has come into focus lately, especially with the rise of so-called "true origin" bills, that are almost certainly unconstitutional, but are rapidly popping up in a variety of states. This is actually a replay of an old strategy. I remember similar "true origin" efforts being pushed about a decade ago, and I'd thought they'd completely died out... but they're back.
The way they work is pretty simple: they outlaw anonymity on the internet if your website distributes any kind of audiovisual work. The point of this is twofold: one, for those who "register" and reveal their name and address, it makes it easier for the RIAAs and MPAAs of the world to sue a site for copyright infringement. And, for those who don't reveal their names, the RIAA and MPAA can ask the states to prosecute the site owners for failing to reveal their names.
A few weeks ago, we wrote about Florida's proposed law, which would require any website that hosts audio or video to reveal their name and address. This could have disastrous consequences for whistleblowers or anonymous critics. In the US, the Supreme Court has long recognized the importance of protecting anonymity as a part of the First Amendment, but this bill does away with that completely, just because the movie and music industries think it's necessary to stop piracy (even though it won't do that). Unfortunately, it appears that despite widespread criticism, the Florida bill is expected to move forward this week. If you happen to live in Florida, the EFF has set up a tool to help you alert your elected representatives to why such a bill is a terrible and unconstitutional idea.
But... it's not just Florida. One year ago, Tennessee enacted a similar bill, called the "True Origin of Goods Act" which is nearly identical to the Florida bill. And just last month, here in California, Assemblymember Ian Calderon (who has positioned himself as friendly to technology) introduced a similar bill. The California bill is at least somewhat more limited than the others in that it appears to focus mostly on physical copies that are offered for "sale" or "rental" -- but it at least raises questions about anonymity rights, and opens the door to future adjustments to "match" this law to internet displays of content.
The efforts here are all basically the same: quietly use state laws to undermine anonymity in an effort to help the RIAAs and MPAAs of the world try to track down the owners of websites they don't like. Whether or not you agree with that idea, the fact that to accomplish that (somewhat pointless) goal would undermine basic First Amendment concepts like anonymity and the ability to speak freely, doesn't seem to be of much concern to the supporters of these bills.
It's the same old story we've seen before with SOPA and other bills: the copyright industry doesn't seem to care in the slightest about collateral damage from its quixotic effort to stop piracy, rather than to provide the public with better offerings. And, of course, copyright is supposed to be an issue for federal law, not state law, and these efforts are ways that the copyright industry is trying to backdoor in systems to undermine free speech in yet another weak attempt to accomplish a singular and pointless goal.
Apparently the state of Tennessee really doesn't want its citizens to have good, competitive broadband. While the FCC's net neutrality rules keep getting all the attention, as we've discussed, in the long run it may be a bigger deal that the FCC (the same day it released the net neutrality rules) also started dismantling protectionist state laws that block municipal broadband. Those laws -- almost all of which were written directly by big broadband players afraid of competition -- make it close to impossible for local municipalities to decide that they're going to set up true competitors. The FCC preempted two such state laws, including in Tennessee, where one super successful municipal broadband project, in Chattanooga, wanted to expand to other nearby places. However, Tennessee's law blocked this.
We already noted that Rep. Marsha Blackburn was trying to pass legislation that would block the FCC's efforts here, but the state of Tennessee has taken it up a notch and sued the FCC over the rules. You will notice that the arguments used by the state of Tennessee are almost verbatim identical to the lawsuits we wrote about yesterday, challenging the FCC's net neutrality rules:
The State of Tennessee, as a sovereign and a party to the proceeding below, is aggrieved and seeks relief on the grounds that the Order: (1) is contrary to the United States Constitution; (2) is in excess of the Commission's authority; (3) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; and (4) is otherwise contrary to law.
Yes, this is almost word-for-word identical to the claims made about the net neutrality rules and is basically the standard language to challenge any FCC ruling.
But here's the larger question: if you're a resident of Tennessee who likes having fast, affordable, competitive broadband, are you happy about your tax dollars being used to sue the FCC in an effort to uphold a law written by the big broadband players, focused on blocking such competition? It seems like the current Tennessee Attorney General, Herbert Slatery, has painted a giant target on his back for a challenger who actually wants to support the public in Tennessee.
As we noted a week and a half ago when the FCC released its full net neutrality rules, it seemed like the legal challenges wouldn't start for a little while -- because the rules had to formally be published in the Federal Register, which would then set off the countdown clock for filing a lawsuit against the rules. However, some believe that parts of the new rules fall under a different legal regime, and thus there is a 10 day limit from the date the rules were released to file an appeal. And thus, we have USTelecom, a trade association of broadband providers and Alamo Broadband, a small Texas-based ISP, who have both filed legal challenges over the FCC's rules. Specifically, they're both asking appeals courts to "review" the rules. Alamo is asking the Fifth Circuit court of appeals, while USTelecom is focusing on the DC Circuit (which is where the last challenge to FCC rules happened). The reasoning in both is fairly similar. Here's USTelecom's argument:
US Telecom seeks review of the Order on the grounds that it is arbitrary,
capricious, and an abuse of discretion within the meaning of the Administrative
Procedure Act, 5 U.S.C. § 701 et seq.; violates federal law, including, but not
limited to, the Constitution, the Communications Act of 1934, as amended, and
FCC regulations promulgated thereunder; conflicts with the notice-and-comment
rulemaking requirements of 5 U.S.C. § 553; and is otherwise contrary to law.
Meanwhile, the focus of Alamo's argument is:
Alamo seeks relief on the grounds that the Order: (1) is in excess of the Commission's authority; (2) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; (3) is contrary to constitutional right; and (4) is otherwise contrary to law.
You'll notice that they're both fairly similar. The focus, as in many lawsuits against FCC actions, is on that "arbitrary, capricious and an abuse of discretion." This is what haters of Title II have been arguing all along, but that seems like it may be a difficult argument to win in court -- especially given what courts have said previously, including in the Brand X ruling (which basically kicked off the process for broadband players classified under Title I instead of Title II) where they more or less said that the FCC should be given deference in these kinds of decisions. It's difficult to see how the suing broadband providers are going to get past that ruling.
A week and a half ago, we launched the Copia Institute, our new business network/think tank. The two day event was really quite amazing, and tons of great ideas came out of the discussions. We'll be sharing some videos and some ideas from all of those discussions as we go forward, but wanted to start out by sharing the presentation I gave at the kickoff, explaining just what we were trying to do, inspired by the Homebrew Computer Club forty years ago. You can see the opening presentation here:
As mentioned in the presentation, one of the things that we're focused on is bringing together lots of smart people to think through creative approaches to big challenges, that don't require waiting for bureaucrats and policymakers to make some big decision -- and the number of great ideas that came out of the summit directly, and in a series of conversations since then, has been astounding. In fact, there are probably too many good ideas. However, in the coming days, weeks and months, we'll continue sharing with you the followup on some of these discussions, including additional gatherings, new research and new projects, all designed to help drive innovation forward.
I know that many of you who were unable to make the inaugural summit have expressed interest in staying informed and helping out as we launch various initiatives. Please, stay tuned, as there will be plenty of opportunities to join in the discussions and to help accomplish some amazing things.
Update: Yes, as lots of angry people are screaming at us (including with detailed explanations of how incredibly, unbelievably, astoundingly stupid I must be), this is a result of Cruz using Cloudflare, which lumps unrelated domains onto the same HTTPS certificate. And yes, Techdirt.com's certificate is hosted by Cloudflare also, and we share it with other domains as well. Feel free to continue to read the original story below and contribute to how stupid you think I am in the comments...
We're big believers in using HTTPS to secure websites (even if HTTPS certificates have their problems -- it's still better than the alternative). But there are pitfalls in setting up your certificate correctly as newly announced presidential candidate Senator Ted Cruz apparently discovered this morning. Because along with his campaign launch speech (which was widely mocked by the Liberty University students who were forced to attend), he put up a website for donations. And that website didn't default to HTTPS and also listed nigerian-prince.com as an alternate domain on the security certificate, as first noted by the Twitter feed @PwnAllTheThings:
A few hours after this was first noticed, the Cruz campaign appears to have removed nigerian-prince.com from its certificate, but it still raises some questions about just who he has hired to build his websites. I guess that's what happens when even the technologists in your own party openly mock Ted Cruz's ignorance when it comes to technology issues like net neutrality.
In early February, we put out an open letter to Elon Musk, asking him to put SpaceX's photos into the public domain, noting that it was a shame that those photos would be locked up until long after we were all dead. NASA's photos are all in the public domain. While I'm extremely excited about the things that private spaceflight can accomplish -- it would be unfortunate if part of the deal was that we lost a great source of public domain imagery. Last week, the company started releasing its photos under a Creative Commons license, which was definitely a big step forward. However, we noted that we were still disappointed that it wasn't a pure public domain dedication, and in fact had a "non-commercial" restriction. So we once again asked if Musk might consider going that one step further to the public domain.
Extra kudos to Elon Musk for recognizing the issue and making the decision so quickly. Of course, the above is not entirely accurate. For reasons that are beyond me, Flickr does not offer a CC0 Public Domain dedication as an option on photos, so it looks like SpaceX has switched the photos to CC BY 2.0, basically removing the non-commercial restriction, but still requiring attribution. Still, given Musk's public statement, it seems likely that the company has no intention to enforce even that restriction.
One separate note: I was a bit surprised by the number of comments on our last story that seemed to indicate that it was absolutely crazy of me to dare to suggest that a private company put photographic works into the public domain. This is unfortunate. It is depressing how much the myth that everything needs to be "owned" has become pervasive in society, often due to the false claims made by legacy industries. Freeing up works so that the public can benefit from them has tremendous global benefits, even for the private interests who put those works into the public domain. Elon Musk recognized this with Tesla's patents, and he appears to be doing the same with SpaceX's photos as well.
And, yes, freeing these photos likely will come back to benefit SpaceX as well. It will enable others to take those works and build off of them, perhaps doing research or publications that will increase the demand for SpaceX's services in launching things (and, eventually, people) into space. And those benefits are likely to be much more valuable than whatever SpaceX might have gotten in a "license" deal for a few photos to some commercial source.
It's astounding to me the short-term, narrow-visioned view of the world some people have, in which they think licensing is the answer to everything, not recognizing just how much innovation and freedom it naturally suppresses.
Oh, and since I can now do this without any worry, here are a couple of great SpaceX photos, that Musk says are in the public domain. Enjoy!
The week of attacks on Uber continue. We already noted the problems the company was having in South Korea and France, and around the time that went up, Uber got banned in Germany. And then, a bunch of California taxi cab companies teamed up to sue Uber, claiming Uber is engaging in deceptive advertising by claiming that its safer than a taxi. The companies are particularly annoyed with the fact that Uber charges a "safe rides fee" but it's not clear if the company actually uses that money for safety purposes. As with similar lawsuits in other cities, it's difficult to see how this is anything more than sour grapes against a company that is serving customers better.
Uber certainly has its issues, but the arguments that cab companies make against it just seem like the kind of thing competitors who don't want to compete make against the hot new thing. Whatever happened to just competing by building a better service, rather than suing? When I get into any kind of car -- whether driven by myself, a family member, a friend, an Uber driver or a taxi driver, I know that there's some amount of risk involved. That's the nature of getting into a car. I don't think that an Uber driver is any safer, even when I do pay the $1 "safety" fee. I use services like Uber and Lyft for their convenience, not because there's any magical formula for safety. So, when the cabbies make this argument, it just rings hollow:
These statements actually deceive, or have the tendency to deceive,
customers into believing that riders who pay this $1 per ride fee to use UberX are safer than if they
chose transportation via a taxi cab. Because this “Safe Rides Fee” is a separate line item on the
receipt that Uber issues to customers, this bolsters the consumers’ expectation that they should be
receiving the safest ride possible. Put differently, considering that Uber explicitly specifies that
this is an additional safety fee, it is reasonable for consumers to expect that they will be receiving
a ride safer than that provided by Plaintiffs’ taxi cabs, as Plaintiffs’ taxicabs simply charge a total
fare, without imposing any additional surcharge to ensure a “Safe Ride.”
No. I use Uber and I don't think that by paying $1 I'm any safer. But I do think that Uber, like any company, recognizes that having happy customers is important, and that includes making sure that drivers do a good job -- which, for the most part they do. I don't need some extra level of regulation that limits the competition, but doesn't actually make me any safer. I prefer a system where drivers actually compete to do a good job, knowing that if they don't they may get a bad rating and kicked out of the system. Uber works because of competition, and it's that simple fact that has these taxi companies so upset.
For years, we've wondered (somewhat rhetorically*) why "intellectual property" issues are included in "free trade agreements" at all. By their very nature, intellectual property laws are the exact opposite of free trade. They are clearly protectionist restrictions on the use of information or content. You can argue that these restrictions serve a good reason, and that may (or may not) be true. But you can't argue that they have anything to do with free trade (at least not if you're being honest).
* Okay, so we actually know why they're included, and it's because the big legacy special interests in the intellectual property world -- including the recording, movie and pharmaceutical industries, long ago realized that by getting intellectual property included in trade agreements they could force countries to pass laws they didn't want. That's because these trade agreements are conducted in near total secrecy, taking input directly from these industries, but then effectively binding countries to pass the new laws that these industries want. The wonderful, but depressing, book Information Feudalism by Peter Drahos and John Braithwaite goes deep in exploring how those big industries first began this effort -- and it's only gotten more intense in recent years.
And, of course, now that these industries have convinced trade negotiators that intellectual property is somehow a trade issue, it's been a central issue in a variety of big trade agreements, including the TPP and TAFTA/TTIP. TPP, the Trans Pacific Partnership agreement, is the one that's much further along, and despite promises that it would be completed quite a while ago, it's still limping along. Apparently, at the most recent meeting the main stumbling block was... intellectual property.
In the meeting from March 9, they tried to reach compromises in seven contentious areas but remained apart on intellectual property protection periods for data on medicines.
Of course, there's a simple solution here: drop the IP chapter from the TPP and focus on whatever (small) issues are actually holding back the rest of the agreement. If you're going to create a trade agreement, why not have it focus on actual trade issues, rather than on increasing protectionist barriers that serve giant legacy industry players, but at the expense of the public?
In this case, since videos of public government hearings for news purposes would clearly fall under fair use (if not public domain), why don't you just host the video yourself? FTFY
C-SPAN does not make them downloadable. If someone wants to figure out a way to get the actual video, we'd happily post it. But, as a warning, doing so may circumvent technological protection measures in violation of the DMCA section 1201.
Corporation suing government of $country in same $country? Is _this_ supposed to "undermine sovereignty"? Like in:
>> The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government
No. It's not about "suing government of $country in same $country." It's about avoiding the court system altogether. It's about challenging laws in $country at a non-court tribunal made up of other lawyers who represent other multinational companies in similar cases and letting THEM decide if the laws of a country are "unreasonable."
In other words, giving a small group of corporate lawyers the ability to basically veto any country's laws.
If I patent something but don't have the means to actually see it through, selling the patent is a reasonable way to use the patent system to encourage innovation.
There are two implicit assumptions in that, neither of which hold up under much scrutiny.
Implicit assumption #1: That raising capital for an idea is impossible for small players. If an idea is truly interesting, there are lots of ways to raise capital for it, and you don't need patents to do that (despite what some claim).
Implicit assumption #2: The selling of the patent actually transfers something useful towards the actual innovation. As others have noted, there is rarely much in the patent itself that actually helps the innovation move forward. Most of the useful "know how" is entirely unrelated to what's in the patent.
If a small time inventor isn't likely to see return, they are less likely to do it.
And yet, you almost never see cases of someone selling a patent to encourage development of some new technology. It's almost all about giving control to some party to either sue others over it, or to prevent being sued. It's not actual knowledge transfer.
As I understand it, he leaves out the copyright status markers because he feels that it furthers the idea that everything must be owned, and any use must require permission. 'I do not agree wit the system as it is, so to avoid providing legitimacy for it I will not involve myself with it' basically.
That's basically it. I find it a shame that people need to especially signal that a work is in the public domain. So yes, I have said over and over that our work is in the public domain and people are free to use it as such...
All the European ones seem to want to give us an amount that's not enough to live on by itself. Please confirm: your basic income would effectively be the same amount as the living wage? How much were you thinking of?
We weren't discussing any specific proposal, but the idea of how BIG should work, which would very much be a living wage.
How? Jacking up taxes isn't enough, they find ways around that.
You're really focused on this, as if it's a default that people will avoid taxes. That's a different issue.
On the Pirate Party's subreddit, enthusiasts said it was for anyone with a UK passport.
Again, we weren't discussing one particular proposal, but again, there's no reason why it need be limited to those with a particular passport. In fact, that seems counterproductive.
I was told by other enthusiasts I've spoken to about this that the terms are non-negotiable.
I've seen lots of discussions on BIG with a variety of different ideas. Considering it doesn't actually exist anywhere the idea that things are "non-negotiable" is clearly ridiculous.
If it replaces all other welfare, bye bye pensions. Are they going to keep those after all and add UBI to them?
I still don't see what pensions have to do with anything here, unless maybe I'm missing some sort of difference between the US and the UK. Pensions are private programs unrelated to welfare. Or are you discussing something else?
I STILL don't see the value of giving it to the rich. "But the poor might feel bad about taking it" seems foolish to me.
I don't see that as the reason at all. The reason to give it to everyone has a lot more to do with reducing the overhead issues. If you have to do any means-testing, you automatically introduce a large bureaucratic mess of figuring out who qualifies and who doesn't (and creates opportunities for gaming). If you just do it flat across the board then you reduce the costs of running the program.
It's not enough to live on by itself, so you're screwed if you can't get a job or other form of income
Um, but that's the point. For it to work it DOES need to be enough to live on. You've taken away the most basic premise of Basic Income Guarantee and then said it's no good. But that's only because what you're describing is not Basic Income Guarantee.
Not all rich people pay tax
That's a different problem, which can be addressed.
How in the world can we afford to dish this money out to those who DON'T need it as well as those who DO?
We discuss this in the podcast and it's covered in many other places as well. There are ways to make this perfectly affordable.
Apparently, it's for citizens.
Apparently for whom?
You seem to think that there are set in place official rules for BIG that can't be changed. That's wrong.
left my damn pension alone
Who has said anything about pensions?
You seem to be fighting against a strawman, or some other program that you don't like and assumed that's what we're talking about.
Section 230 is mere statute (common law always trumps it) and in any event only applies when the platform is objectively neutral.
This is false.
Here at Techdirt, it being a business, if Masnick uses his power as administrator / moderator and becomes a partisan to, say, exclude certain persons or aid in harassing them, then he'd lose all protections.
100% false. In fact, CDA 230 makes it clear that the platform can do whatever moderation it wants and not lose liability. In fact, that was the original point of CDA 230 -- to *encourage* moderation in a way that would not rid a site of liability protections. Read 230(c)(2)(A) which says:
"No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected"
So you're misinformed. It is not only for neutral parties, and voluntarily choosing to moderate does not shed anyone of Section 230 protections. At all.
If these mashup "artists" are so talented, surely they will have no trouble creating their own original songs, instead of piggybacking on the work of actual creators.
If those musicians are so talented, surely they will have no trouble building their own instruments, instead of piggybacking on the work of actual creators.
One thing I consistently notice about this blog is the very lowbrow appreciation of music, and I'm sure that lack of taste informs the biased opinions against actual creators often expressed here. If you can't value good music because you can't hear the difference, of course you will have no trouble with people profiteering off the backs of actual creators.
Interesting. Based on your theories, nearly all of modern music is "lowbrow." Do you consider Bob Dylan lowbrow? The Beatles? Led Zeppelin? Elvis? Michael Jackson? Almost all of the most successful artists are somewhat famous for building off the works of those before them.
I find it amazing how many people, like yourself, pretend that you are supporting artists when, really, you are dismissing the value of nearly all artists.
I'm curious. Do you think this is "low brow" and that this guy should just "create his own" works instead of what he did here:
This is the first time that "This Week In Techdirt History" has been skipped. Hopefully the decision (if there was one) had nothing to do with last weeks' use of the episode as a convenient dumping ground for off-topic posts of all kinds (& egged on by a skeptic's request for documents).
Just everyone exhausted from Copia summit... everything should go back to normal next week...
Fair use protects him. He only gets permission for social reasons.
Here's the thing: fair use doesn't protect him here. Because the copyright is owned by the Gayes. Blurred Lines itself is infringing and he made a copy of that infringing work. Thus, in this case, fair use *doesn't* work. That's how fucked up this ruling is.
Don't have time for a detailed answer -- been meaning to write a long post about Bitcoin (literally have been planning it for over a year...), but just haven't had the time to focus on it.
But, yes, I think Bitcoin/cryptocurrency is incredibly important and will have a significant impact. Though not in the way most people expect. For the reasons why... well, you need to wait until I get this post together.
Let's see... Former Secretary of State Colin Powell used private email -- nobody is saying diddly. Same with Condi Rice. In fact, John Kerry is the first SoS that actually had an official email setup with the State Department. So why is Clinton getting the Benghazi treatment?
No, we're equally critical of that. In our first posting, we noted that Hillary *CLEARLY KNEW* about these rules, thanks to the KNOWN CONTROVERSY about Bush administration officials hiding stuff via private email accounts.
If you think we're writing about this because of partisan politics, you clearly don't read this site.
Apparently Hillary does not know one can have multiple email accounts on a single smartphone.
There actually has been some discussion on this. Apparently, it was a lot more difficult for some government email systems back in 2009. Many weren't able to do this until much later. So it's not *entirely* crazy:
Added a little update after discovering Bok's own comments on his blog, where he lashes out at commenters who questioned his knowledge and insists that these parodies are "destroying" his intellectual property.
The Cartoonist has no idea how many things work, apparently.
This is the first Saturday that Awesome Stuff has not been posted on Techdirt. Has this crowdfunding series finally run its course, ending in last week's "Not So Awesome Stuff: Your Worst Crowdfunding Project"?
No, it'll be back... we were just realizing we're a little too busy preparing for next week's Copia Summit, so it had to take a little break...
That brings to mind something that I've been wondering, is it possible for them to essentially veto the entire vote on their own by simply refusing to ever submit their dissents, and therefor block the rules being made public? Are there rules in place where they have to submit their dissents by a certain point, or can they refuse and nullify the entire thing basically?
Yes, they'll submit their defenses. They're trying to stall as long as possible to see if Congress can do something in the meantime, but they have to submit their dissents eventually.