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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 21 April 2017 @ 2:38pm

Tech Companies Continue To Tell Courts To Reject Trump Travel Exec Order

from the speaking-up dept

Earlier this week we noted that 162 tech companies (including us) had signed an amicus brief for the appeal in the 4th Circuit (in Virginia) arguing that President Trump's travel ban executive order was unlawful. The same group of companies (plus one more -- as it looks like Pandora was added to the latest) have filed basically the same amicus brief in the appeal in the 9th Circuit (which is the appeal of the decision in Hawaii that a smaller group had filed an amicus brief on as well). As with last time, people are going to come up with all sorts of conspiracy theories over this, but the fact is this is an issue that matters to many, many people who work at these companies, and the companies have committed to speaking out about it.

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Posted on Techdirt - 21 April 2017 @ 11:38am

How Garry Kasparov Learned To Stop Worrying & Love The Machines That Beat Him At His Job

from the and-others'-jobs-as-well dept

There's been an awful lot of talk these days about how the machines (and "AI") are coming to take all of our jobs. While I'm definitely of the opinion that the coming changes are likely to be quite disruptive, many of the doom and gloom scenarios are overblown, in that they focus solely on what may be going away, rather than what may be gained. If there's anyone out there who might be forgiven for worrying the most about computers "taking over," it would be Garry Kasparov, the famed chess champion who took on the Deep Blue chess playing computer and lost back in 1997. However, in a new (possibly paywalled) WSJ piece, Kasparov more or less explains how, even now as AI is moving into all sorts of fields previously thought safe from automation, he's come to embrace the possibilities, rather than fear the losses:

It is no secret that I hate losing, and I did not take [losing to Deep Blue] well. But losing to a computer wasn’t as harsh a blow to me as many at the time thought it was for humanity as a whole. The cover of Newsweek called the match “The Brain’s Last Stand.” Those six games in 1997 gave a dark cast to the narrative of “man versus machine” in the digital age, much as the legend of John Henry did for the era of steam and steel.

But it’s possible to draw a very different lesson from my encounter with Deep Blue. Twenty years later, after learning much more about the subject, I am convinced that we must stop seeing intelligent machines as our rivals. Disruptive as they may be, they are not a threat to humankind but a great boon, providing us with endless opportunities to extend our capabilities and improve our lives.

There's a lot more in the essay, but basically Kasparov recognizes that there's tremendous opportunity in looking at what smarter machines can actually do to help more and more people:

What a luxury to sit in a climate-controlled room with access to the sum of human knowledge on a device in your pocket and lament that we don’t work with our hands anymore! There are still plenty of places in the world where people work with their hands all day, and also live without clean water and modern medicine. They are literally dying from a lack of technology.

And, towards the end, he notes that while there may not be easy answers, there are plenty of opportunities. While many people today insist that since they cannot think of what the new jobs will be, there can't possibly be any, the reality is that just a few decades ago, you would probably not have been able to predict many of today's internet/tech related jobs. And Kasparov is optimistic that freeing us up from more menial jobs may open up much greater opportunities for people to put their minds to work:

Compare what a child can do with an iPad in a few minutes to the knowledge and time it took to do basic tasks with a PC just a decade ago. These advances in digital tools mean that less training and retraining are required for those whose jobs are taken by robots. It is a virtuous cycle, freeing us from routine work and empowering us to use new technology productively and creatively.

Machines that replace physical labor have allowed us to focus more on what makes us human: our minds. Intelligent machines will continue that process, taking over the more menial aspects of cognition and elevating our mental lives toward creativity, curiosity, beauty and joy. These are what truly make us human, not any particular activity or skill like swinging a hammer—or even playing chess.

I am sure that some will dismiss this as a retread of techno-utopianism, but I think it's important for people to be focusing on more broadly understanding these changes. That doesn't mean ignoring or downplaying the disruption for those whose lives it will certainly impact, but so much of the discussion has felt like people throwing up their arms helplessly. There will be opportunities for new types of work, but part of that is having more people thinking through these possibilities and building new companies and services that recognize this future. Even if you can't predict exactly what kinds of new jobs there will be (or even if you're convinced that no new jobs will be coming), it's at the very least a useful thought exercise to start thinking through some possibilities to better reflect where things are going, and Kasparov's essay is a good start.

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Posted on Techdirt - 20 April 2017 @ 3:13pm

The Weird Antitrust Questions Of A Google Chrome Ad Blocker

from the i-don't-envy-the-lawyers-here dept

So rumors have started flying that Google is about to build some ad blocker technology into Chrome, that would block ads that the company considers to be "unacceptable ads" -- as determined by the "Coalition for Better Ads." Of course, while a coalition for "better ads" sounds like a good thing, this Coalition for Better Ads has been criticized. It was put together by the biggest companies in the internet ad space, and many worry that it's just an attempt to whitewash over a lot of bad practices by declaring just the extremely egregious practices as "bad." Either way, the original report from the paywalled Wall Street Journal notes that the ad blocker might even block all ads on sites that run "bad" ads (i.e., not just the bad ads).

There have been all sorts of reactions to the news of a built-in Chrome ad blocker, but a lot of people are raising the antitrust questions. Obviously, Google is unlikely to consider its own ads to be the "bad ads." And thus, an official Google ad blocker -- especially one that allows its own ads through and is default on its very popular browser -- at least raises eyebrows about antitrust issues. There's a strong argument to be made (and I'm pretty sure that some ad firms would raise this with a court within a day or so of such an ad blocker being released) that this is an anti-competitive move to suppress competing ad firms.

But... then again, there's the fact that lots and lots of people (quite reasonably!) hate ads. And a system to block "bad" ads is a pretty clear consumer benefit (which I imagine would be Google's key defense). And, of course, Chrome (and other browsers) have had a form of ad blocker for ages already in that they block pop up/pop under ads. So it could be argued that this kind of thing is already done, and how different is this?

Of course, there might also be a more nuanced antitrust claim -- that this is an attempt to destroy the business of other ad blockers that are more aggressive in blocking ads -- including Google's ads. The argument there is that by offering a built-in ad blocker that handles the worst of the worst ads, users are less likely to install the optional more comprehensive ad blockers, thus protecting Google's ad business. That's one that Google may have a much tougher time with.

Still, it does seem... tricky, to think that by providing users with a better default experience, that might also mean antitrust problems. That, of course, is where things always get tricky around antitrust issues like this one. Improving life for consumers is good... but doing so in a way that leverages a dominant position that potentially harms other ad blockers... is almost certainly going to lead to a lot of lawyers making a lot of money. But it also puts Google in a difficult position if its goal really is to stop bad advertising (and I know some will insist that's not Google's goal at all -- but just assume that it is and figure out what can Google actually do here?). Just as in some of the search antitrust cases, where sites with bad content were pushed down the rankings and sued (and lost... but still impacted some antitrust investigations), it becomes tougher to actually take steps to improve the web browsing experience for users.

If I were in Google's shoes I'm not sure I'd go through the trouble of doing this, even if it would help in other ways. With so many folks gunning for the company these days, it seems like it's going to be costly in fending off antitrust challenges.

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Posted on Techdirt - 20 April 2017 @ 1:10pm

162 Tech Companies Tell Appeals Court That Trump's 2nd Travel Ban Is Illegal

from the speaking-up dept

As you'll recall, back in early February, over 100 tech companies signed onto an amicus brief, arguing that President Trump's initial plan to bar immigration from certain countries was unconstitutional and illegal. A month later, a smaller group of companies signed onto an amicus brief in the district court in Hawaii concerning the revised travel ban (and a few people noted that some of the companies that signed onto the first brief had not signed onto the second one -- wondering if that meant many companies weren't as worried about the revised ban. Except, yesterday an even larger group of tech companies (162 in total) signed onto a new amicus brief for the 4th Circuit court of appeals which is the next appeals court hearing a case on the revised travel ban. And, yes, we at the Copia Institute signed onto this one as well (we also signed onto the first two).

It seems likely that some companies just sat out the Hawaii case because it's in a district court, and amicus briefs aren't always as welcome in district courts, and some lawyers view them as wasteful at that stage. Amicus briefs tend to really only matter in appeals courts (or, of course, the Supreme Court). You can read the full brief here (or below), as it makes the case that even the revised ban doesn't solve the problems of the original ban. It's worth reading carefully. It's good to see all of these companies continue to stand up for what's right, especially when it would be easy to sit back, do nothing, and play nice with the new administration.

And, because I know that some people will insist that the only reason that tech companies have signed onto this is because it gets them cheap labor or some other such criticisms, I can assure you that in many cases, the participation in these amicus briefs is being driven by the employees at these companies, demanding that management stand up and speak out, rather than a top down decision. Many people feel strongly -- as I do -- that being a country that is welcoming to immigrants is an important part of being American. No one's arguing that there shouldn't be background checks and "vetting" and the like -- but the executive order goes way beyond that.

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Posted on Techdirt - 20 April 2017 @ 11:43am

Artist Sues Church For Moving His 9/11 Memorial Sculpture

from the this-again? dept

It's pretty rare for us to bring up the issue of "moral rights" over creative works in the US, and even rarer to directly reference VARA -- the Visual Artists Rights Act of 1990 -- and yet, here we are, twice in one week discussing VARA claims. Even more incredibly, both are about sculptures that were placed for free in parts of lower Manhattan, right off Wall St. The claim that's received lots of attention was the one over the Wall St. Bull and the fact that another statue was placed near the bull, which the artist claims changes his message, and thereby violates VARA. This other claim is from another sculptor, Steve Tobin, who is suing Trinity Church for moving his 9/11 memorial sculpture to Connecticut.

VARA, if you don't remember, was a bill passed in 1990, as a half-assed way to try to pretend that the US is in compliance with the Berne Convention -- the large (and almost entirely awful) international agreement on copyright and copyright related issues. Part of the Berne Convention requires that countries signing on recognize so-called "moral rights." For the most part, copyrights are considered economic, rather than moral rights, which is why they can be bought and sold. Moral rights, on the other hand, are a concept more popular in Europe, which argue beyond the economic rights, the creators of works have certain "moral" rights in what is done with those works. In order to pretend that the US fulfilled the Berne Convention requirements without actually introducing a full moral rights regime, Congress passed VARA in 1990, which gave fairly limited moral rights only to "visual" works like paintings and sculptures. The specific moral rights granted include the right to claim authorship in the work you created, and to prevent the destruction or mutilation of your work -- which is what we discussed in the case of the Wall St. Bull (even though VARA likely doesn't apply to the Bull).

So, now for the details of this case. The Art Newspaper (the link above), which first wrote about this story, did not post a link to the filing (side note: I never understand why journalists don't link to source material if they have access to it). You can read the whole thing here. But the quick summary, as explained in the link above, is this:

The sculpture The Trinity Root recalled a sycamore tree that stood in front of the 320-year-old church and bore the brunt of the debris from the collapse of the Twin Towers on 11 September, preserving the church from more extensive damage. Tobin convinced the rector of the church at the time to allow him to excavate the stump and roots of the tree so that he could create a bronze memorial. The artist was not paid by the church and covered the production costs himself—estimated at more than $1m according to the lawsuit filed in federal district court on Wednesday, 12 April—on the promise that the work would remain in the courtyard permanently.

The sculpture was installed in 2005, but a different rector decided it should be removed in 2015, without informing the artist, and relocated to a church-owned seminary in northwestern Connecticut. “The new rector, Dr William Lupfer, didn’t like it, thought it was ugly and took up too much real estate and wanted it gone,” said Kathleen Rogers, Tobin’s business manager. In the process of moving the three-tonne sculpture, some elements were damaged, the lawsuit says.

You can see a snapshot of the Trinity Root by Tony Fisher here (licensed under a CC-BY 2.0 license):

The Trinity Root - 9/11 Memorial

Large sections of the filing focus on the fact that in multiple press announcements and stories about the Trinity Root, the church mentioned that the sculpture would be a "permanent" installation (and in at least one case, Tobin himself put out a press release with the same claim, and the press release had the church's approval).

The lawsuit goes to great lengths to also note that this is Tobin's most famous work, that it's tied up with his reputation and that lots and lots of people come to visit it. Oh, and also he explains just how much effort was taken in creating, transporting and installing the sculpture (they even had to get the George Washington Bridge to close to allow him to transport the sculpture across it. In other words, this was no small undertaking. There's also a video of the creation, transportation and installation of the Trinity Root:

The complaint also reveals some of the discussions that Tobin had with Trinity Church after finding out that the new Rector didn't like the sculpture (or the crowds that came to see it). Tobin keeps telling the Church that the artwork is "site specific," and the church keeps asking him if he'd help them move it away at the church's expense. Also this: according to the lawsuit, as Tobin kept arguing with the church over moving the sculpture, they apparently went and did it anyway without telling him, and they continue to discuss over the phone with him his objections to moving it, without mentioning that they had already moved it.

One more twist in the contract between Tobin and the church is that Tobin agreed to one of those "you give us everything" clauses reading:

Under the heading "OWNERSHIP; COPYRIGHT" the Agreement further provided that "Tobin hereby transfers and assigns to Trinity by charitable donation all right, title and interest to the Sculpture and all materials related thereto (including but not limited to all sketches, photographs and audio-visual footage), including but not limited to the copyright therein, and any cause of action that Tobin may have with respect thereto, in perpetuity throughout the universe, for use in any manner and in any media now known and hereafter invented."

The question is whether this would count as a waiver of moral rights under VARA. You can't assign your moral rights to another party, but you can waive them. But a waiver, under VARA, has to be written and it has to specify the "uses of that work to which the waiver applies." Tobin's lawyers have a point that the above doesn't seem to be a waiver (and, Trinity Church might want to talk to whatever lawyer drew up that agreement...).

Finally, it's revealed that in moving the sculpture from Manhattan to Connecticut, the statue was damaged in a few places, which gives Tobin more of a claim under VARA for "mutilation" of his work.

So what does this all mean... At a glance, it seems like Tobin has a much more credible claim under VARA than the guy who created the bull, but it still seems... nutty. The idea that the church can never move a statue in its courtyard just seems wrong. And, at the very least, this case is another example of why we should let the Copyright Office know that expanding moral rights is a really bad idea. Remember, the Copyright Office is currently studying the question of expanding moral rights, and the comment reply period is still open (until May 15th).

In the end, while the damaging of the statue perhaps adds at least some greater credibility to the VARA claim -- even though it wasn't designed to be a mutilation, just an accident while moving -- the fact that an artist can claim (even after giving up all rights and title to the piece) that because the piece has some connection to a site, the owners can no longer move it, would be really, really dangerous. Yes, there's a stronger argument here as to why this one location is directly tied to this piece of artwork (and many other artists would have trouble showing the same level of connection), any time you argue that artwork is so connected to its siting that moving it would violate the law... something seems to have gone wrong. I can certainly understand why the artist is upset, but as we noted with the bull, artists give up quite a lot of control when they let art out into the world and, as in this case, hand ownership over to a third party.

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Posted on Techdirt - 19 April 2017 @ 11:50am

Actual Lawyer Thinks That Criminalizing Showing Murder On Facebook Will Prevent Murders On Facebook

from the where-did-you-get-your-law-degree? dept

Earlier this week, we wrote about the silly take at Wired, more or less suggesting that it was somehow Facebook's issue that a troubled individual took a video of himself randomly killing an elderly man and then uploaded the video to Facebook. Unfortunately, others have had similar takes, including the New Yorker's Steve Coll, whose piece is mostly balanced and admits that it's basically impossible for Facebook to prevent this thing... but then at the end ignores all that and says, effectively, "Well, Facebook's big so it has no excuse not to do something."

That is a fair and restrained assessment, but Facebook cannot expect to plead growing pains or a lack of resources for much longer. At the end of last year, the corporation reported holding almost thirty billion dollars in cash and marketable securities; its annual profit exceeded ten billion dollars for the first time. Facebook can afford to slow down and take on more of the risks associated with curating content—the risks of not doing so being increasingly glaring. Its engineers might, in addition to their habitual writing of improved algorithms, consider the durable oath of a profession that has long wrestled with the kinds of ethical quandaries that arise from innovating in the pursuit of the greater good: first, do no harm.

That's one of those things that sounds good to someone who hasn't thought through the actual consequences of what they're saying. When you argue that Facebook should "slow down" and "take on more risks associated with curating content," you're arguing that Facebook should censor more content. Think of how that plays out in reality. Because we know already: every time Facebook takes down "good" content, the same media folks start bitching and screaming about how Facebook is so bad at moderating content. Remember Facebook blocking Napalm Girl? While Coll didn't address that issue himself, just months ago, he raved about the importance of Napalm Girl and how adults need to see this kind of thing to "pause and reflect upon the costs of war." But, apparently having them confront murder is a step too far.

But... that is not the worst take on this whole thing. So far, that award goes to Danny Cevallos, a legal analyst for CNN and apparently a real practicing criminal defense attorney. His argument is not to blame Facebook... but to criminalize posting murder videos to Facebook. It's not often that you see a criminal defense attorney arguing for more crimes, but here we are.

To be fair to Cevallos, he's not the first to come up with an idea this dumb. As online video became more popular, and as stories emerged of people (often young kids) filming themselves doing stupid things online, various grandstanding politicians have often argued that filming crimes should be illegal, arguing (often without any evidence) that the only reason these people were doing stupid/illegal things was because of the draw of being able to film them and post them online. This reached a fever pitch a few years ago when a legislator in South Carolina picked up on an exaggerated moral panic about the idea of the "knockout game" -- in which people filmed themselves punching unsuspecting people -- and wanted to pass a law saying that it was illegal to film a crime.

That's more or less where Cevallos goes, though he'd limit it to just murder videos:

Use the law to deter this sort of depraved predator. We can criminalize the criminal's act of broadcasting his crime.

In for a bit, Cevallos digs in deep:

When it gets into the realm of a horrendous crime like the recent shooting, what is to be done? As heretical as it is for a criminal defense attorney like myself to say, deterrence could help. More criminal legislation: enhancements, penalties, mandatory minimums.

And how the crime and its victims are legally framed is key. Whether it's murder or simple assault, acts of violence that are also posted online create additional victims in the audience: the public at large. Broadcasts of intentional violence intimidate a civilian population, just as terrorism does.

What?!? Now he's comparing broadcasting a murder tape as terrorism? Who exactly is intimidated? Will it horrify people? Yes, absolutely. But that's not illegal, nor should it be.

Also, there's this. How the hell is this actually a deterrence? What kind of person will say "Well, I was going to shoot that guy and broadcast it on Facebook, but since broadcasting it is illegal, I guess I won't." Really. Who? If you're going to murder someone, you've already kinda committed to breaking basically the most serious law we have. Somehow, I doubt that the additional charge of "Oh, and he put it on Facebook," is going to change the incentives much.

And, then, of course, Cevallos starts digging deeper with a really terrible First Amendment analysis (especially for a media company like CNN to publish). All it's missing is the explicit use of the bullshit "fire in a crowded theater" trope.

The challenge here is that criminalizing Facebook broadcasts of one's crimes does potentially infringe upon one's freedom of speech about those crimes. The US Supreme Court held that the original Son of Sam law ran afoul of the First Amendment, because the suppression of speech was not narrowly tailored enough.

However, the First Amendment has plenty of limits, and today, almost all the states and the federal government have laws prohibiting those criminals who plan to profit from their crimes from doing so. The ability to profit still shouldn't be constitutionally-protected.

Pretty simple rule of thumb: your First Amendment analysis is bad and you should feel bad if it's basically limited to "Well, there are exceptions to the First Amendment, so surely the exception I want should be fine." Hell, it's near the top of Popehat's famous "censorship tropes" in discussions of free speech.

But Cevallos isn't done. After already carving out a new exception to the First Amendment, he then also argues that posting your own murder video maybe would fit under the very limited and extraordinarily narrow "obscenity" exception to the First Amendment:

It's a tougher question whether "killing videos" could be additionally penalized as obscenity. This is because the term "obscenity" generally applies to depictions of sexual acts. The Supreme Court has held that violence alone is not obscenity.

On the other hand, obscenity may extend to deviant acts that are not sexual, and images of extreme cruelty alone could possibly be obscene, as evidenced by a case involving videos of animal cruelty. Indeed, "animal crush videos" — which are every bit as horrific as they sound — may be outlawed, even if sexual activity is not depicted.

Again, the legal analysis is... lacking any substance whatsoever. It's basically "Well, animal crush videos can be outlawed, so sure, murders on Facebook too."

Criminalizing the broadcast of crimes like Robert Godwin's shooting death is doable. It won't prevent these attacks, but it will deter them.

It will deter them... based on what evidence exactly? Just in your head?

Finally after all that nonsense, Cavallos points out just about the only accurate thing, and hilariously calls it "perverse": the fact that what these videos do is provide all the evidence law enforcement needs to prosecute individuals for the crimes they're committing on video:

The perverse upside is that social media creates a treasure trove of evidence: the criminals of social media may harm the society that views them, but they often assist the authorities in prosecuting them.

Yeah, that's not "perverse." That's why the rest of your article makes no sense. The video is evidence of a crime. Layering on another, much lesser crime just for posting the video doesn't deter crime. It deters people making it easier to catch, arrest and convict themselves of committing crimes. CNN needs better legal analysts.

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Posted on Techdirt - 19 April 2017 @ 9:27am

Why Is The Hotel Industry More Focused On Harming Airbnb Than Improving Their Own Product?

from the innovate-and-compete,-guys dept

It's no secret that the hotel industry hates competition from Airbnb. Hell, politicians have even admitted to crafting anti-Airbnb policies to keep hotels from being disrupted. But, now, the NY Times has got its hands on a specific plan from the hotel industry to basically hamper Airbnb and burden it with legal and policy challenges (I should note, by way of some sort of disclosure, that I'm typing this while sitting at a desk at an Airbnb apartment in Washington DC -- and, similarly, that it's much nicer and significantly cheaper than comparable hotels, but I digress...).

Last year, Airbnb underwent a rough regulatory patch.

The short-term rental company became a Federal Trade Commission target last summer after three senators asked for an investigation into how companies like Airbnb affect soaring housing costs. In October, Gov. Andrew M. Cuomo of New York signed a bill imposing steep fines on Airbnb hosts who break local housing rules.

The two actions appeared unrelated. But one group quietly took credit for both: the hotel industry.

Years back, we wrote about writer Andy Kessler's concept of political entrepreneurs v. market entrepreneurs, which (loosely defined) were those who basically used policy making to lock up markets for themselves and restrict competitors as opposed to entrepreneurs who innovated and created more value in the market by serving customers. In more traditional economics, it's rent seeking v. market innovation and growth. Most people recognize how rent seeking is bad: it's using the levers of regulations and politics to limit competition and innovation, in order to extract a greater share of the revenue/profits (since there's less competition, if any) while similarly limiting innovation and economic growth that improve people's lives.

And the hotel industry seems like a prime example of this right now.

Both were partly the result of a previously unreported plan that the hotel association started in early 2016 to thwart Airbnb. The plan was laid out in two separate documents that the organization presented to its board in November and January. In the documents, which The New York Times obtained, the group sketched out the progress it had already made against Airbnb, and described how it planned to rein in the start-up in the future.

The plan was a “multipronged, national campaign approach at the local, state and federal level,” according to the minutes of the association’s November board meeting.

The NY Times report has many more details, but all of it is basically summed up as "annoy Airbnb and limit their ability to grow as much as possible." There doesn't appear to be anything in there about "providing a better experience to our customers so they might prefer us to Airbnb." There doesn't seem to be anything in there about "better competing with Airbnb." Nope, it's entirely about trying to undermine Airbnb. I've noted in the past (and in this post!) that I've used Airbnb a bunch, and have found it almost universally better than hotels. The experience is more unique, but also just... better overall. And I've spoken with many Airbnb hosts. It's true that some are running "businesses" renting out multiple units on Airbnb, but isn't opening up more people for running successful small businesses a good thing?

And, yes, I know lots of people like to claim that Airbnb is driving up rent -- even if the data doesn't currently support that claim. But even if true (and, again, it's the hotel lobby that has mostly been pushing this narrative, though plenty of well meaning folks have picked up on it), that's an issue to deal with in other ways (such as increasing housing stock, rather than limiting it with other regulations) rather than shutting down a useful business that opens up new opportunities, and can also increase tourism and local business.

Again, it's perhaps no surprise that the hotel industry has been fighting Airbnb, but with the NYTimes getting its hands on the actual strategy documents from the hotel industry, that industry has made it clear that it's seeking to shut down and limit competition, rather than innovate themselves.

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Posted on Techdirt - 18 April 2017 @ 10:44am

No, The Wall St. Bull Sculptor Doesn't 'Have A Point'

from the nope dept

Last week, we wrote twice about sculptor Arturo Di Modica and his claim that the "Fearless Girl" statue, that was placed last month in front of his "Charging Bull" statue, violates his rights. As we explained, in detail, he has almost no legal case here. His letter to New York City argues three possible claims of action -- all of which would almost certainly be losers in court (as we detailed in that last post).

However, I still have seen a bunch of people arguing in support of Di Modica, claiming that he "has a point." Many have pointed to a blog post by Greg Fallis that is literally titled "Seriously, the guy has a point." Others have raised other issues in discussions I've seen (and taken part in...) on Twitter and Facebook. I still don't think he has any point at all, but I wanted to do a post addressing each of the key issues I've seen raised, and explaining why I think they fail as legitimate arguments.

Fearless Girl is an ad

I had debated mentioning this in the first post (and only obliquely noted that "there have been some criticisms" of Fearless Girl), but decided it was really meaningless. But people keep bringing it up, so let's address it. Yes, the Fearless Girl statue is an advertisement of sorts. The whole thing was created and financed by State Street, a massive investment firm, with help from McCann, one of the giant ad agencies. And a big part of the criticism is that State Street has a "gender diversity index" whose ticker symbol is SHE, focused on tracking the performance of "companies with the highest levels within their sectors of gender diversity on their boards of directors and in their senior leadership." And Fearless Girl has a plaque that says: "Know the power of women in leadership. SHE makes a difference." Many have, quite reasonably, argued that (especially given the capitalization of SHE) Fearless Girl is just an advertisement.

And the response to that should be... so what? As we've pointed out for many, many years, all content is advertising in some sense. It may be advertising for the artist. It may be advertising some idea. It may be advertising a theme. Di Modica's bull was "advertising" the resiliency of American capitalism. Just because it's advertising doesn't mean it's not artwork. And even advertising can have a positive social message. So, the claim that it's "advertising" doesn't really impact anything here. Yes. It's advertising. So what? It's also still art, and was created by a real artist whose own work and talents are unfairly diminished when you say that it's not art just because someone paid for it and it advertises something else. Or as our own Leigh Beadon points out:

Some are arguing that because there's money involved, that somehow changes things, but I don't see how. After all, the bull itself celebrates money and markets, so if you're suddenly arguing that money is bad, well, then... I'm not sure how that supports the argument that the artist has a point.

It uses the only copy of Charging Bull

This is the argument I've heard most often after the "it's an ad" argument, and I'd argue it's more persuasive, but still not very persuasive. The argument here is that, unlike a remix or standard appropriation art, where the original work remains untouched, the placement of Fearless Girl effectively incorporates Charging Bull such that Charging Bull can no longer be separate from Fearless Girl. If you are to accept the idea that putting another artwork near an original piece of artwork can never be allowed, even in a public place, and even if the latter piece incorporates the original to comment on it... well, you're going to run into a lot of problems pretty quickly. Because then you're arguing two things that are pretty difficult to justify: (1) that an artist should get absolute control over any other works near his or her own artwork, and (2) that artwork is defined by what is around it and so the context can never change.

Both things seem unjustifiable. On the first point, what if, instead of the Fearless Girl statue, someone created a placard (an artistic placard) protesting what they believed was unfair sexism on Wall Street and stood next to the bull? Would that lead to the same outcry that this somehow "diminished" the Bull? Or imagine a world in which an artist could force a museum curator -- or a private collection owner -- to not display some other artist's artwork next to his or her own, because the juxtaposition of the two pieces was deemed by the artist to be unflattering? Most people would think that is crazy. How one puts up a piece of artwork, and what pieces are put around it, are the decisions of those who control the physical pieces and have the rights to display them. Here, Di Modica dumped his bull on the streets of New York, and New York now has possession of the physical statue. It can decide how to display it.

Plenty of museums use the careful placement of different works to create juxtaposition and even direct criticism or commentary. It would be crazy to think that an original artist could bar any of that.

As for the second point, we don't have to look very far to see how silly it is: Di Modica himself placed the bull in the street in front of the NY Stock Exchange, specifically making a point about that particular financial market. He was commenting on the NY Stock Exchange and the fact that it represents a form of capitalism and free markets (whether or not you agree with that is beside the point). And yet, NYC moved Charging Bull around the corner. It is no longer directly in front of the NYSE, but people still get the context and they understand the intent.

I've seen people arguing that if Fearless Girl were removed to somewhere else it wouldn't make the same point, but that's not necessarily true. People are not dumb. They can understand context. And they can see how context changes. The Bull moved from the NYSE to a nearby park, and yet people still recognize that Charging Bull is commenting on the stock market and the Wall St. ethos. Yes, it helped where it was initially placed, but the mythology around the placement has stuck with the Bull. The same is likely true for Fearless Girl. Were it -- or the Bull -- to now move, many people would still remember and recognize the initial juxtaposition, and understand the intent (again, even if it was an ad).

But Fearless Girl changes Charging Bull's meaning

I've seen this from a few people, arguing that the artist must have some right of "control" over the meaning of the statue. But that's just not the way it works. This is a similar argument that we've seen in lots of copyright disputes over the years -- especially cases involving fair use. People seem to ascribe a somewhat mythical concept of "control" or "control of message" that an artist can have over their artwork. But that's never been true. Once a work of art is released to the public, the public interacts with it and interprets it and that's wholly outside the control of the original artist. Sometimes, over time, people's impression of a work of art can change drastically -- from bad to good or from good to bad.

Indeed, that's a big part of art. Art is barely art if there's no reaction to it. The reaction itself is a large part of the art, and that reaction is not dictated by the artist. Sometimes that reaction is just how people see things. Sometimes that reaction is in how it inspires others to create other works. Art is often defined by the reaction to it. And here, if that reaction changed, that's just a part of the nature of art and culture and society and how those things interact. Over the years, for example, there have been debates about the artistic value of works that supported, celebrated or were associated with bigotry. And there have been protests against them. But that's allowed, because people are allowed to react to art how they want, and sometimes their reactions can impact how others see things as well. Some people who grew up with the Confederate flag as a symbol of the south have grown over time to realize the racist connotations it can hold. Should we not allow people to raise those issues and get people to rethink their support of that flag?

Control in art is an illusory concept: people insist it's there, when it really is not. An artist has control over the artwork while they're working on it and before they've released it to the world, but once it's out there, once it's become available to interact with the reactions of the public, control is lost. And that's a good thing. It's that loss of control that makes art art.

You may not like Fearless Girl. You may not like Charging Bull. You may not like capitalism or advertising -- or maybe you do. You may like control. But the simple fact is that none of the arguments that Di Modica and his supporters are making make much sense in the grand scheme of things. The bull can survive Fearless Girl and so can Di Modica.

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Posted on Techdirt - 17 April 2017 @ 11:46am

Secret Sorority Handshakes, Questionable Lawsuits, Free Speech, The Right To Be Forgotten And Section 230

from the a-little-bit-of-everything dept

Late last week (beyond filing a new document in the lawsuit against us), we also filed an amicus brief, put together by Stanford's IP law clinic and Paul Levy at Public Citizen regarding a terrible and dangerous ruling for free speech in California. We wrote about it last summer and how dangerous it is -- but let's hold off on the details of the case right now.

Instead, I'd like to go back one more year to May of 2015, when we wrote about a bizarre case in which the Phi Sigma Sigma sorority was officially suing a "Jane Doe" former member, who had apparently posted the sorority's super secret handshake to the Penny Arcade forums.

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred". The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, "We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings." The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words "Remove the Veil" and then the member will respond back with the Chapter's name, example, "Zeta Eta." The Gold and King Blue symbolize "Perpetuity" and "Sincerity". At initiation, blue "veils" (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members.

Bizarrely, the post with the secret handshake was posted years after the thread had started, and it was unlikely that many people were looking at it. Well, that is until the sorority decided to go legal about it. First, Phi Sigma Sigma had a lawyer come up with the bright (note: not actually very bright) idea to send a bogus DMCA notice on Penny Arcade arguing that the post needed to come down because it violated the sorority's "trade secrets." That's funny, because the "C" in DMCA stands for "Copyright" and not "Ctrade secrets" and it's highly unlikely the secret handshake is, in any way, a "trade secret" in the first place. The lawyers followed this up by suing the "Jane Doe" in King County Superior Court in Washington. Why King County? There's no indication that Jane Doe is from that area, but that does cover where Penny Arcade is based -- and perhaps if you want to pressure a website to remove some content, you figure it'll be more amenable to seeing something from a local court even if (and this is kind of key) Penny Arcade was never a party to the lawsuit.

For whatever it's worth, Phi Sigma Sigma "won" the lawsuit because "Jane Doe" apparently was never properly identified and served, and thus Phi Sigma Sigma won a default judgment last fall, which is effectively meaningless. Except, with that "order" in hand, Phi Sigma Sigma's lawyers have been going around asking people to take down the handshake -- including us here at Techdirt. To be fair, at least with us, there was no clear threat involved if we refused -- as we have -- but as we've seen multiple times in the past year or so, many sites will immediately take stuff down after receiving a court order like that. Indeed, it appears that Penny Arcade chose (for whatever reason) to take down that thread themselves.

Of course, this certainly opens up the possibility of censorious mischief. Almost exactly a year ago, we wrote one of the first articles detailing an apparent "reputation management" scam that involved posting possibly defamatory comments on certain stories, followed by defamation lawsuits being filed against the John Doe commenters, only to have (miraculously!) a signed admission show up a couple of days later, allowing a tidy "settlement" to be reached, complete with a court order that can then be shopped around to various sites asking them to take down the content. A few months later, Paul Levy and Eugene Volokh tracked down a number of similar cases that were clearly being used to take down content someone didn't like, and abusing the court system to do so.

That does not mean that's what Phi Sigma Sigma was up to here, but a recently turned up FAQ about the lawsuit for members of Phi Sigma Sigma, while making it clear the sorority is not suing the websites, certainly suggests that the intent of the lawsuits is to obtain legal pressure to get sites to remove the content:

If you can't see those images, they are 3 questions and answers (numbers 5, 7 and 9) from a longer document, each of which has answers claiming the goal of these lawsuits is to get this content off the web. "We hope that through this lawsuit, we will have the authority to have any remaining and future posts also removed." "We are hopeful that through this legal action, they will be required to take down the post" and "Our ultimate goal is to have all posts related to our ritual removed as soon as possible." That last one is in response to a question specifically about "the outcome of this lawsuit." That certainly suggests that, contrary to other statements about identifying the individual responsible, or getting an injunction against them, the true intent is to get sites to delete information.

With Phi Sigma Sigma we have refused, as we should have every right to do (and, we might also state our opinion that it seems like a fairly poor decision on the part of the sorority and its legal team to make this effort that seems to serve only to call more attention to the content it wishes hidden from view). We also won't even bother to dig into how, elsewhere, the FAQ falsely claims that Phi Sigma Sigma has to take this action or it risks "losing" its intellectual property. First, this isn't true of copyrights at all (and there doesn't even appear to be any copyright issue here in the first place, questionable DMCA notice notwithstanding). Second, it only applies very narrowly to certain situations involving trademarks becoming declared "generic." That is not -- at all -- the situation with people posting the details of a secret handshake clearly identified as coming from Phi Sigma Sigma (and, once again, raises questions about the quality of the legal advice Phi Sigma Sigma is getting).

Now that brings us back around to the amicus brief that we filed Friday along with Public Citizen. It is in the case of Hassell v. Bird, that we wrote about last summer, in which -- contrary to nearly all Section 230 case law -- non-party Yelp was ordered to remove a review. The details of the case involve a lawyer, Dawn Hassell, who sued a former client, Ava Bird, for posting a negative review of Hassell's work on Yelp. Bird did not respond to the case, and thus the court granted a default judgment, as is standard. But here's where the court went a step too far: it then ordered Yelp to remove the posts. Yelp was not a party to the lawsuit, and basically all of Section 230 law says that it should not be obligated to remove the content (it can choose to do so, but Section 230 is clear that it should be immune from legal liability over its decision).

In the amicus brief, we explain how this runs counter to basically all Section 230 caselaw, but, perhaps more importantly, further point out examples (including our current discussions with the lawyers for Phi Sigma Sigma) where this kind of ruling could lead to abuse, and the forced removal of First Amendment protected speech -- whether under good intentions or ill intentions. Specifically, we note that, if the ruling in Hassell v. Bird stands, then an entity such as Phi Sigma Sigma, could potentially follow the same path as Hassell to force us to remove the details of that handshake, despite there being perfectly good First Amendment-protected reasons for leaving it posted. As Eric Goldman wrote when this ruling first came out, if it stands, it creates a de facto right to be forgotten in the US that could (and would) be widely abused to force sites to take down all sorts of content. We hope that the California Supreme Court will overturn the lower court's ruling.

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Posted on Techdirt - 17 April 2017 @ 10:43am

Moral Panics: Don't Blame Facebook Because Some Guy Posted His Murder Video There

from the get-a-grip dept

As you've probably heard by now, on Sunday a horrific act of violence happened when a clearly disturbed individual apparently decided to (1) randomly murder an elderly man walking down the street, (2) film the entire process from searching for the guy, approaching him, talking to him and then shooting him, and (3) upload it to Facebook for people to see. The police initially reported that he streamed the murder live, but it was later clarified that, while he had streamed some other commentary live earlier in the day, the murder was filmed separately and then uploaded. Still, as happens all too often in these situations, people are immediately jumping to the moral panic stage and asking, as Wired did quickly after, what kind of responsibility Facebook should take. The title of the article says that Facebook "must now face itself" for streaming the murder -- but then seems to have trouble explaining just what it needs to face (perhaps because... there isn't anything for it to face).

And when the manhunt is over, and the grieving begins, so too will Facebook’s soul-searching.

Facebook is not the first media company to struggle with the prospect of unwittingly broadcasting violence shortly after being uploaded. When news anchor Christine Chubbuck killed herself on live TV in 1974, the station was unable to stop the event from airing, but never showed the footage again. The number of viewers who actually saw the event was minimal. Facebook has taken similar steps, pulling Stephens’ video shortly after it was posted. “This is a horrific crime and we do not allow this kind of content on Facebook,” the company said in a statement. “We work hard to keep a safe environment on Facebook, and are in touch with law enforcement in emergencies when there are direct threats to physical safety.”

Uh, right. So... what else does anyone expect Facebook to do? It's not like it can magically stop murders. Or stop people from initially uploading or streaming a murder video. Yes, it can (and does) take those down, and it can (and does) block re-uploading. But to pin this on Facebook seems... really, really weird. It's almost as if whenever there's a murder people want to find someone or something else to blame other than the person doing the killing.

The article kind of admits, later on, that expecting Facebook to do anything is impossible... but that just raises the question of why write a whole article asking what Facebook should do if the answer is "uh, it can't and shouldn't do anything."

Facebook, of course, is a decentralized system, with millions of freelance “reporters” with unfettered access to the public. By the time the company removed the video, thousands had already watched it, and it lives on in other corners of the internet. Meanwhile, the company has resisted calls to use its algorithms to censor videos like this before they are ever posted–not just because it does not want to be accused of violating speech rights, but also because training computers to identify real-time or recent murder is hard. Facebook has long relied on an army of humans to scour videos uploaded to its site. With videos, and especially Live videos, that job goes from hard to impossible—not even Facebook employees can watch a video before it posts.

Currently, Facebook relies on other Facebook users to flag videos that need to be taken down. But that means that someone has to watch the horror before others can be spared it. The onus falls to the viewers, not the company, to determine what is appropriate, what should be shared, and what should be flagged for removal. Traditional media companies have finely-wrought guidelines and policies to help them make these decisions, but Facebook depends on us to do it.

But even after basically admitting that this is an impossibility, the article still then says:

And now it might very well be time for the company to roll up its own sleeves and get to work.

And get to work doing what exactly? Again, Facebook isn't going to stop a murder. And I don't care how good the AI gets, it's unlikely any time soon to say "hey, that video is some person killing another person, don't stream that." There is no sleeve rolling to do on the Facebook side of the equation and even exploring this question seems silly. Yes, senseless murders and violence lead people to go searching for answers, but sometimes there are no answers. And demanding answers from a random tool that was peripherally used connected to the senseless violence doesn't seem helpful at all.

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Posted on Techdirt - 17 April 2017 @ 6:19am

Bad Take: Rep. Sensenbrenner's Response Over Internet Privacy Concerns: 'Nobody's Got To Use The Internet'

from the and-nobody's-got-to-vote-for-you-either dept

As we've explained, with Congress voting (and the President signing) a bill to kill off the FCC's broadband privacy rules, things are not necessarily as bad as some might have you believe, but they're still bad. And lots and lots of people seem to be asking their elected representatives why they did this. After all, despite the fact that the vast majority of both Republican and Democratic voters supported the rules (as they did with net neutrality rules as well...), in Congress everyone lined up along party lines over this issue, with Republican members of Congress voting down the rules.

At least some are now facing backlash over this... and they don't seem to be handling it well. Rep. Jim Sensenbrenner seems to have what may be the worst possible take on this after being asked about it. He told a constituent, to maybe just not use the internet if you don't like it. That linked article only has part of the quote, but here's the video of the question and the response:

The questioner points out, correctly, that for individual services, like Facebook, people have a choice of how much they actually use them or what info they give, but for your overall ISP that's not true -- and also notes that there aren't competitive options. Sensenbrenner's answer is... maddeningly nonsensical and wrong, and basically ignores everything the questioner just said to him:

"You know, again, nobody's got to use the internet. And the thing is, if you start regulating the internet like a utility, if you did that right at the beginning, we'd have no internet. Internet companies have invested an awful lot of money in having almost universal services, now. And the fact is, you know, I don’t think it’s my job to tell you that you cannot get advertising through your information being sold. My job, I think, is to tell you that you have the opportunity to do it and then you take it upon yourself to make the choice that the government should give you. And that's what the law has been and I think we ought to have more choices, rather than fewer choices, with the government controlling our everyday lives.”

Now, it's a live situation, and perhaps Rep. Sensenbrenner misspoke. But, no, his press office doubled down on this when someone called it out on Twitter. Amusingly, the press office was trying to parse the difference between "don't use the internet" (as a Tweeter claimed Sensenbrenner said) and "you have a choice" which is... well... not a very big difference, despite his press office claiming it's a "big difference."

The idea that people "have a choice" in using the internet today is laughably out of touch. Indeed, so many things that people rely on today pretty much require the internet. Jobs, transportation, housing and more frequently require the internet. And, to put an even stronger "WTF" on Sensenbrenner's misguided statement: a big part of the problem here is the very lack of choice. The vast majority of Americans have no real choice when it comes to getting true broadband access -- as the very questioner stated, and which Sensenbrenner totally ignored. Thanks to bad policies, we have a non-competitive market, where if you want broadband, you basically have to go with one company, and then it gets access to a ton of data about you.

If Sensenbrenner truly meant what he said here, he'd have been against rolling back the rules. As small ISP boss Dane Jasper recently noted on our podcast, without these privacy rules, it actually gives the giant providers that much more power over the smaller upstarts, and makes it harder for the small providers to compete.

Also, Sensenbrenner is simply flat out wrong with his argument about "if the internet was regulated like a utility at the beginning" because it WAS regulated like a utility at the beginning and it resulted in tons of competition and innovation. Indeed, for most of the internet's early rise it was treated as a utility in terms of things like open access and line sharing. And privacy rules. It's only more recently that that went away.

Also, I have no clue what Sensenbrenner is trying to say when he says: "I don't think it's my job to tell you that you cannot get advertising through your information being sold. My job, I think, is to tell you that you have the opportunity to do it and then you take it upon yourself to make the choice that the government should give you." What does that even mean? First of all, it was the FCC's job, and it did so. What Sensenbrenner did here was to roll back what the FCC said. Second, even with the rules, it never said that "you cannot get advertising through your information being sold." All the rules did was say that ISPs had to tell you about it and offer clear options on how you controlled your data. Third, seriously, what is he saying when he says his job is "to tell you that you have the opportunity to do it and then you take it upon yourself to make the choice that the government should give you." I honestly keep reading that sentence and cannot parse it. The privacy rules were what gave individuals choices. It gave them choices in how their data could be used. Rolling back those rules takes away the choice.

For years, we've pointed out that Congress appears totally and completely out of touch when it comes to basic tech policy -- especially related to the internet. Jim Sensenbrenner's vote and statements on this issue have only confirmed that basic fact.

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Posted on Techdirt - 14 April 2017 @ 7:39pm

Copyright Society's 'World IP Day' Lesson: Give Us Your Copyrights For Nothing

from the so-let's-counter-contest dept

Every year around April 26th, the World Intellectual Property Organization (WIPO) hosts a weird dog and pony show of copyright/patent/trademark maximalism that it calls World IP Day. In the past, we've pointed out that the events and festivities are disturbingly one-sided and frequently clueless. For example, two years ago, WIPO used Bob Marley's famous line "Get Up, Stand Up" as the theme for World IP Day, ignoring the history of Jamaican music, in which the lack of copyright protections in the 50s and early 60s is basically what allowed Bob Marley to become a world phenomenon (and, later, the fact that Marley and Universal Music got tangled up in a fight over copyrights).

Anyway, the "theme" for this year's World IP Day is "Innovation -- Improving Lives," which suggests a stronger focus on the patent side of the equation this year. WIPO has a list of suggested activities for World IP Day, including staging exhibitions, setting up a booth at the airport to talk about "IP and the role it plays" in your daily lives (really), or... hosting an "essay competition." It would appear that the Copyright Society of the USA has decided to take this approach and has announced an essay competition. Oddly, this is not on the website of the Copyright Society of the USA, but only over email -- and a recipient of that email has kindly forwarded it to me.

As you might imagine, the Copyright Society of the USA tends to be fairly supportive of ever expanding and ever expansive copyright law. It is also -- apparently -- supportive of the idea that it's not so much the creator who deserves the benefits of copyright law, but rather the larger gatekeepers. Such as itself. After all, here are the "rules" for the Copyright Society of the USA's essay contest promoting the wonders of copyright:

Pretty simple. If you can't see that, the rules are:

  • Essays must be 700 words or less in English
  • Essays must be original and unpublished. Plagiarized entries will be rejected.
  • Essays must be written by one person. Co-authored essays are not accepted.
  • Copyright of the essays entered will be assigned to the organizer.
Yup. So celebrate copyright... by handing your copyrights over to the Copyright Society of the USA for free. Well, perhaps not for free, because (based on no clear criteria) the Copyright Society of the USA will pick three "winners" who will receive credits in $100, $50 and $25 denominations to be used at Postmates.com (an online delivery service). Very exciting. I guess, perhaps, that will teach the young folks this contest is likely targeted at a little something about copyright: which is expect to have a larger, more well-resourced organization demand to take control over your copyrights for a pittance (if anything). That's quite a lesson for World IP Day.

Anyway, in the spirit of... "innovation," we've decided that we might as well do our own World IP Day writing contest, but (again, in the spirit of "innovation") let's make it an "anti" contest. Part of the wonders of the internet is that you don't need gatekeepers anymore -- and you certainly don't need them taking control over your copyrights. There are lots of platforms where you can post your own essays, perhaps on the theme of open innovation and how that helps innovation. Or on how intellectual property has been used to stifle and hold back innovation. If you choose to post it with a permissive and open license (or better yet, a public domain/CC0 dedication) and then let us know about it, and we may consider republishing it here to get it some more attention. Or not. You don't need us. And you certainly don't need the Copyright Society of the USA taking your copyright in your little propaganda piece about how copyright is awesome.

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Posted on Techdirt - 14 April 2017 @ 11:45am

EFF Goes To Court To Stop Australian Patent Troll From Stifling Free Speech

from the censorious-patenting dept

As you probably know, each month, the Electronic Frontier Foundation (EFF) posts its "Stupid Patent of the Month" post, highlighting particularly egregious patents that never should have been approved and/or particularly egregious patent litigation around those patents. You might know about this even if you don't follow the EFF's own website, because we almost always repost those posts here on Techdirt, under EFF's Creative Commons' license. In fact, last summer, we reposted EFF's article about US Patent 6,690,400, held by Global Equity Management (SA) Pty. Ltd. ("GEMSA"), an Australian company that has all the hallmarks of a classic patent troll. You can read that post for the details of the patent in question, but suffice it to say, EFF described it as "storage cabinets on a computer" and GEMSA has sued dozens of companies, rarely explaining how they possibly infringe. For example, in suing Airbnb, all GEMSA notes is that the site's user interface "infringes one or more of the claims of the '400 patent."

Not surprisingly, GEMSA was not particularly thrilled about being named the holder of a "stupid patent of the month" or to have EFF make fun of its lawsuits. Unlike, say, IBM, who upon being named a stupid patentholder of the month appeared to see the error of its ways, GEMSA decided to really double down. It went to court. In Australia. And got an order telling EFF to take down the article and barring EFF from publishing anything about any of GEMSA's patents.

Now, we've written multiple times in the past about Australia's questionable views on internet free speech and prior restraint. However, we've also noted -- quite directly, that the SPEECH Act quite clearly bars such Australian court orders from being valid in the US.

It appears that the good folks at the EFF will now be putting that to the test. They've filed for declaratory judgment in federal court in the Northern District of California to have the court say that the court order from Down Under is unenforceable here. You can check out the full filing here or embedded below.

The filing goes into fairly great detail about just how really upset GEMSA is. It literally claims that calling its patent "stupid" is "misleading" because the patent "is not in fact 'stupid.'" Very convincing. There are also some bizarre conspiracy theory claims, including saying that the filings in some of GEMSA's lawsuits against Airbnb and Zillow "are not available in the public domain" despite them being available on PACER (and "GEMSA's own press release announcing its first wave of lawsuits attaches a copy of one of the complaints and explicitly notes that they are public records available on PACER.")

Whether or not Australians' somewhat twisted views on free speech say that you cannot give your opinion that a patent is stupid, in the US that's very clearly protected speech. Furthermore, here in the US, you cannot bar someone from ever talking about your patents. That's known as prior restraint and, as good old Walter Sobchak from the Big Lebowski eloquently stated: "The Supreme Court has roundly rejected prior restraint."

That said, as EFF notes, without a declaratory judgment, GEMSA can continue to threaten EFF with enforcement (it is already demanding that EFF remove the article, pay it money, and get others to remove links). Or, worse, GEMSA might use the Australian court order to get the article delisted from search engines. There is a real possibility of chilling effects:

... the Australian Injunction has cast a shadow over the legality of EFF’s speech about GEMSA’s ’400 patent and litigation, and is chilling EFF’s further speech. Given the present uncertainty concerning the injunction’s enforceability in the United States, EFF feels constrained from speaking further about these topics – indeed, about any of GEMSA’s patents, since the order sweeps that broadly – aside from simply reporting about this declaratory judgment action to its readers.

Also of significant concern to EFF is that, absent an order from a United States court declaring the Australian Injunction repugnant to U.S. law and unenforceable here, GEMSA will follow through on its counsel’s threat and successfully use the injunction to persuade American search engines to “deindex” the Article, which would effectively preclude EFF from speaking publicly on this important U.S. legal and political issue altogether.

This should be a layup for EFF, but as we know, these kinds of disputes can be both time consuming and costly. But, really, of all the organizations to go after with an attempt to censor their opinions, you've got to be pretty short-sighted to think that EFF is a proper target.

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Posted on Techdirt - 14 April 2017 @ 8:20am

Latest Filings In Our First Amendment Fight; Please Help Keep True Independent Journalism From Being Silenced

from the fighting-to-report dept

As we mentioned a few months ago, we are currently in a First Amendment fight for our very survival against Shiva Ayyadurai, who has announced his desire to shut us down for explaining, in detail, why we feel he did not invent email (given the long history of the development of email that preceded Ayyadurai's particular software application). Ayyadurai has retained the lawyer Charles Harder in this lawsuit, and Harder has been successful in getting another media property, much larger than Techdirt, to go bankrupt and be sold off in the face of a number of similar lawsuits. Last month, we asked for the case to be dismissed for a variety of reasons, including under California's anti-SLAPP law. Ayyadurai has opposed these motions. Yesterday, we filed our reply to Ayyadurai's opposition.

We recommend reading our reply carefully, along with all of the other filings in the case, and familiarizing yourself with all of the details in order to make up your own mind. If you believe that free speech and a free press matter in holding powerful people accountable -- or if you are worried about claims by public officials that it's time to "open up" or change our libel laws to go after a press that may report less than flattering things about them -- then please consider contributing to our Survival Fund at ISupportJournalism.com. As I have noted before, this lawsuit has been a massive distraction. It has already forced us to delay multiple projects that we were working on, and to postpone other projects that we were scheduled to begin. It has, similarly, limited our time and resources to continue reporting on a variety of topics that we would normally cover. In short, no matter what the outcome of the actual case, the lawsuit alone has already been tremendously costly for us in terms of how we operate.

At a time like this when truly independent reporting is so important, especially on a variety of matters concerning free speech online, net neutrality, copyright, patents, innovation and more, we hope you'll consider supporting our continued ability to report on these topics.

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Posted on Techdirt - 13 April 2017 @ 9:28am

Legal Threat From Creator Of Wall St. Bull Statue Even More Full Of Bull Than Expected

from the you-have-to-be-kidding dept

Yesterday, we wrote about reports that Arturo Di Modica, the artist behind the famous "Charging Bull" statue near Wall St., was claiming that the new "Fearless Girl" statue that was put up in front of the bull infringed on his copyrights. As we noted in our piece, the only possible claim we could see was a weak moral rights claim, under VARA -- the Visual Artists Rights Act of 1990. However, as we noted in an update to the post (with a helping hand from law professor James Grimmelmann) VARA shouldn't apply. If you read the actual law, it applies to works created after VARA went into effect or to works created before the law went into effect if the title to the artwork has not been transferred from the artist.

But, of course, the history here is that Di Modica dumped the statue in front of the NY Stock Exchange as a surprise in 1989, only to have it moved by the city and given a "temporary permit" in a nearby park that is continually renewed. 1989 is, obviously, prior to the enactment of VARA in 1990. And, Grimmelmann argues, Di Modica "transferred the title by accession when he installed it."

Of course, Di Modica's lawyers don't appear to care. Late Wednesday, the letter that they sent Bill de Blasio, Mayor of New York, was released, and their legal theories... are... well... let's just say some might compare them to what comes out of the back of a bull. Yes, it does include a VARA claim, but it's not the main claim of the letter. However, since that was the focus of our post yesterday, let's deal with that one first:

Additionally, the placement of the statue of the young girl in opposition to the Charging Bull has undermined the integrity and modified the Charging Bull. The Charging Bull no longer carries a positive, optimistic message. Rather, it has been transformed into a negative force and a threat. For example, Mayor de Blasio characterized the Fearless Girl as a symbol of "standing up to fear, standing up to power, being able to find in yourself the strength to do what's right." The inescapable implication is that the Charging Bull is the source of that fear and power and a force against doing what's right. Plainly, the presence of the statue of the young girl has tarnished and modified the Charging Bull: "intended as a symbol of strength by the artist, the bull takes on a menacing air in relation to the girl."

This alteration of the Charging Bull and damage to its integrity are prejudicial to Mr. Di Modica's honor and reputation and violate his rights under the Visual Artists Rights Act of 1990, codified as §106-A of the Copyright Law. The Visual Artists Rights Act confers upon authors of works of visual arts, in addition to attribution rights, the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation...." ... Here, there is no doubt that State Street Global Advisors intended to distort, mutilate and modify Charging Bull, and did so intentionally distort, mutilate and modify Charging Bull by installing Fearless Girl in opposition to Charging Bull and engaging on its marketing campaign featuring this image. This violation of Mr. Di Modica's rights will continue as long as Fearless Girl remains in opposition to Charging Bull.

Oh, what a load of bull. First off, this ignores, as Grimmelmann pointed out, that VARA almost certainly does not apply to Charging Bull (though if this went to court, I imagine Di Modica's lawyers would argue, weakly, that he did not give up the title to the statue when he abandoned it on the road). Second, placing something next to your artwork, even as a comment on it, does not "distort, mutilate or modify" the work. And if the public's interpretation of the Bull has gone from positive to negative, well, sorry Di Modica -- that's life. People's opinions change. The idea that a visual artist could block someone else from placing a work near their own work because it might change how people see the original would create major headaches around the globe. Imagine museum curators being forced to move works of art because an artist protests about how the work next to his or her own negatively impacts how people view it. That's insane.

Furthermore, if he's really worried about his "honor and reputation", how do you think the public -- who has overwhelmingly supported the message of the Fearless Girl statue (even if it is just an advertisement for a State Street fund) -- is going to feel about him being the thin-skinned, whiny, petulant artist who demands NY remove it? It seems likely that his actions here will do a hell of a lot more to damage his "honor and reputation" than the Fearless Girl statue does.

Anyway, the main claim in the letter, again, is not actually about VARA. Instead, it's even more crazy. Di Modica's lawyers argue (apparently with a straight face) that the Fearless Girl is a derivative work of the Charging Bull, and thus copyright infringement.

The statue of the young girl becomes the "Fearless Girl" only because of the Charging Bull: the work is incomplete without Mr. Di Modica's Charging Bull, and as such it constitutes a derivative work of the Charging Bull.

The essential importance of placing the young girl statue across from the Charging Bull, as opposed to elsewhere, is highlighted on the website of SSGA, which invites browsers to "[w]atch how the Fearless Girl was created and placed in a spot that made her impossible to ignore." It is only because of the Charging Bull that the young girl statue can be considered "impossible to ignore." Clearly, a deliberate choice was made to exploit and to appropriate the Charging Bull through the placement of Fearless Girl. The inextricable link between the young girl and the Charging Bull has not gone unnoticed. As one commentator writes, "The tiny girl stands bravely face to face with the giant bull, and this spatial relationship of size, orientation, and stance adds depth to the meaning of the symbol."

Furthermore, SSGA and McCann New York made conscious decisions to visually link the young girl statue to the Charging Bull. First, the statue of the young girl, just like the Charging Bull, is made out of bronze. Indeed, the patina of the young girl is nearly identical to that of the Charging Bull. Second, they extended the cobblestone paving of Bowling Green into the adjacent plaza. In so doing, State Street Global Advisors created another unifying element between the Charging Bull and the young girl that serves to transform the young girl into the "Fearless Girl."

SSGA and McCann New York constructed a marketing campaign around the image of the Fearless Girl--the image of a young girl facing down the Charging Bull. They deliberately placed the young girl statue in direct opposition to the Charging Bull and used key design elements to associate the young girl statue with the Charging Bull. In effect, the Charging Bull has been appropriated and forced to become a necessary element of a new, derivative work: "Fearless Girl: Girl Confronts Charging Bull." This is a direct violation of Mr. Di Modica's copyright.

The Fearless Girl was created for commercial purposes: to advertise SSGA and its SHE fund. Because Fearless Girl incorporates and depends upon Charging Bull, SSGA and McCann New York have commercialized and exploited the Charging Bull. A promotional video released by SSGA, which has since been modified, reveals that from its inception, Fearless Girl was conceived and designed in relation to the Charging Bull: The opening scene of the video shows the artist sketching the young girl, with a picture of the Charging Bull beside her. The final scene of that video, is shot from behind the young girl but facing the Charging Bull. The viewer sees only the head and shoulders of the young girl. In contrast the Charging Bull is revealed in its full glory. That image makes incontrovertible the fact that SSGA and McCann New York created the young girl statue to commercially exploit the iconic status and reputation of the Charging Bull. Similarly, the use and distribution of a photograph of both the young girl and the Charging Bull by SSGA and McCann New York is evidence of the commercial use of not only the statue of the young girl, but also of the Charging Bull. This commercialization of the Charging Bull is also a direct violation of Mr. Di Modica's copyright.

So much bullshit, so little time. Creating an entirely different artwork to act as commentary on the original is not derivative -- and even if you could argue that it was, it would almost certainly be fair use as transformative. In fact, the letter itself admits flat out that this is transformative. It's a self-defeating threat letter. You can't argue that (a) this transforms the work entirely (as the letter does) and then (b) also argue that it's direct infringement. But this letter does exactly that. That seems like really bad lawyering. And, really, what of the original copyright is being copied here? The only two things mentioned are the bronze patina (which is not copyrightable) and the Cobblestone paving of Bowling Green which is not part of Di Modica's work in the first place, since he didn't even place the Bull statue there (that's where the city later moved it).

Finally, the letter also argues that Fearless Girl is trademark infringement, because it was a part of a State Street advertising effort. This part includes a bit of a conspiracy theory about the placement of Fearless Girl:

The placement of Fearless Girl opposite Charging Bull also dilutes the Charging Bull's famous trademark. This is a violation of the Federal Trademark Law as codified at 15 U.S.C. §1125(c).

As discussed above, State Street Global Advisors installed the statue of the young girl in the plaza adjacent to Bowling Green and extended the cobble stone paving into the plaza. Had the statue simply been installed in Bowling Green, the statue would have fallen under the jurisdiction of the Department of Parks and Recreation. However, because the statue is technically in the plaza, it is now under the jurisdiction of the Department of Transportation. These machinations appear to be an attempt to create a token separation of the young girl statue from the Charging Bull and thereby to circumvent the legal need for Mr. Di Modica's permission to use his Charging Bull.

Or, you know, it was the best place to put the statue to make the point it was making. If you squint, maybe, there's barely some kind of argument that because Fearless Girl "uses" Charging Bull as a sort of component of a kind of advertising campaign, there's a trademark issue -- but, boy, I wouldn't want to be the lawyer who has to defend that argument in court.

Meanwhile, Mayor de Blasio seems to be taking this all in stride:

And now we get to see if this actually goes to court.

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Posted on Techdirt - 12 April 2017 @ 1:22pm

Uber Now Banned In Italy... Because Competition Is Bad?

from the what? dept

The absolute scariest cab ride of my life happened in Rome a few years back, and I'd prefer not to relive that experience, but apparently I might not have much of a choice next time I'm in Italy, as the country recently banned Uber completely, claiming that it was "unfair competition." Now, let's be clear: there are many, many reasons to not like or trust Uber. You certainly have every right to not like the way it goes about its business or the way it treats drivers. You can refuse to use the service all you want and you can tweet #DeleteUber and whatever else you like... and yet you still should be concerned about this.

Uber isn't being blocked in Italy because of its business practices. It's being blocked in Italy because the taxicabs there don't like the competition, and a court has ruled that those cabs shouldn't face competition. Again, no matter what you think of Uber's own business practices, it's pretty damn clear that everywhere that Uber or similar services operate, what everyday people tend to get are better options for transportation. It makes it easier for people to get a ride when they need it, it adds much needed supply to the market, and it tends to be a better overall experience (and there's at least some evidence that it also prevents drunk driving).

In the end, when it comes to innovation, our general stance around here is that what you need more than anything else is competition. Competition drives innovation. It drives better customer service. Having courts come in and block competition in favor of an organization famous for limiting the number of competitors in the market is never going to be a good thing. If you're upset by Uber's business practices, target those business practices. But doing an outright ban on competition doesn't seem to help anyone, other than the legacy taxi providers.

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Posted on Techdirt - 12 April 2017 @ 11:53am

The Bull Statue Copyright Claim Is Ridiculous... But Here's Why It Just Might Work

from the and-the-law-may-agree dept

You're probably quite familiar with the famous Charging Bull statue (also known as the "Wall Street Bull") which is found in Bowling Green Park right off Wall St. in lower Manhattan. The statue was originally placed there as a "guerilla sculpture" by artist Arturo Di Modica without permission.

Eventually, because New Yorkers seemed to like the damn thing, the city granted a "temporary" permit allowing the statue to remain (a little ways away from where it was originally placed) -- and so it's remained there, "temporarily," for 28 years. Of course, there have been some conflicts over the bull. In 2009, we wrote about Di Modica suing people for copyright infringement, which seems kind of nutty given that he originally just dumped the statue in the street without getting permission.

But, now, Di Modica is taking the copyright craziness up a notch. As you hopefully heard, last month, State Street Global Advisors placed a "companion" statue of a young girl facing down the bull. The statue, called Fearless Girl, was created by artist Kristen Visbal, and was put in place on the eve of International Women's Day, as a reminder that Wall Street doesn't exactly have a history of hiring women or treating them well. Originally designed to be temporary (not unlike the bull), after lots of New Yorkers spoke up, the girl has been given a one-year permit, and many expect that (like the bull) it will remain longer.


Image via Wikicommons -- under a CC BY-SA 4.0 license.

There have been some criticisms of the statue, but the latest is the most surprising. Di Modica is claiming that it violates his copyright and he's going to do... something about it.

The Italian-born sculptor Arturo Di Modica said the presence of the girl infringed on his own artistic copyright by changing the creative dynamic to include the other bold presence.

That is... not how copyright generally works (in the US), of course. Adding another piece of art next to a piece of artwork isn't a copyright violation. Except that in this case, it's unfortunately a bit more complicated. While most of the rest of the world recognizes a form of "moral rights" alongside copyright, the US has (smartly) mostly rejected moral rights. However, in order to officially ratify the Berne Convention on copyrights, the US was supposed to recognize moral rights, and we did so in a half-assed way, passing a law called VARA -- the Visual Artists Rights Act of 1990 -- now 17 USC 106A, which gives moral rights to visual works such as paintings and... sculptures.

Uh oh.

Yeah, so under VARA, the artist:

shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

So... the question here would be whether or not placing another statue nearby, staring down the bull and making a point about diversity (1) modifies the bull statue in a way that is (2) "prejudicial to" Di Modica's "honor or reputation." Or, there's the more objective way to look at this which is: this is all insane. Di Modica dumped his bull statue on the street nearly 30 years ago to make a point. That he is now looking to use a stretched definition of copyright law to block someone else from doing the same thing referencing his own iconic statue is... just kind of crazy.

Importantly, though, this is interesting timing as it relates to moral rights. The US has been correct in (mostly) resisting putting in place a moral rights regime, and focusing on copyright as an economic right. Unfortunately, at this very moment, the Copyright Office is "studying" the issue of whether or not moral rights should be expanded. The first round of public comments has closed (you can read those comments if you'd like), but response comments are open until May 15th. Given this example of moral rights gone mad, perhaps it might be useful for the Copyright Office to be reminded of how moral rights might be used to stifle and stamp out important expression.

Update: Law professor James Grimmelmann points out that Di Modica probably has no legitimate moral rights claim either, seeing as the statue predated VARA, and that he "transferred the title by accession when he installed it." Which makes sense, but is still a reminder that we should be concerned about moral rights overreach.

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Posted on Techdirt - 12 April 2017 @ 9:30am

Yes, There Are Other Laws That Protect Privacy, But FCC's Rules Were Still Helpful

from the setting-the-record-straight dept

There's been a lot of hype and confusion about Congress's decision (supported by the new FCC) to kill off the broadband privacy rules that were put in place late last year by the Tom Wheeler FCC, though they had not yet been officially implemented. As we noted, it's an unfortunate exaggeration (pushed by some well meaning folks) to say that ISPs will now be packaging up and selling individuals' specific browsing history. That's just not true. Some people responded to us by noting that just because that's not how the ad market works today, it doesn't mean that won't change. But... that's probably not the case. Don't get me wrong: getting rid of these privacy rules is still a really bad idea, but let's look a little deeper at what ISPs can't do, before we explain why those privacy rules are still important.

First off, as we noted, the market for internet data is not in sharing some sort of dossier on what you like, but rather connecting into a marketplace, where the information is shared for the purpose of displaying ads, but not in a way where your actual info goes to the advertiser. That is, when you, say, go shopping for a camera, and then start seeing ads for cameras everywhere, it's not that the camera makers now know that you, Joe Schmoe, like cameras. Instead, what happens is that some company took that info (Joe Schmoe is shopping for cameras) and that gets put into a marketplace where some real time bidding happens for ad placement, such that when Joe Schmoe visits another site, there's a near instantaneous call out for who will pay the most for the ad slot, and with that info is, effectively, this otherwise anonymous person was just looking at cameras, and the camera company will say "I'll pay an extra $0.0002 for that ad compared to the TV maker" and thus the camera ad gets shown. The camera maker or retailer never knows its Joe Schmoe, and doesn't somehow "know" anything more about Joe.

But... but... but... people say. There are data brokers out there who do sell more personalized profiles on you. And... that's true. Many of those companies are pretty awful. But that's unrelated to any of this. And, no, the ISPs can't just turn themselves into the next big data brokers.

Even without the privacy rules, there are rules that prevent that from happening. Section 222 of the Communications Act still stops carriers from selling your info. Of course, that's part of Title II of the Telecom act, so if the FCC or Congress figure out a way to roll back Title II, there is at least some greater concern. Separately, as Orin Kerr notes at the Washington Post, certain other "surveillance" activities by service providers are limited by the Wiretap Act -- and there are some fairly stiff penalties should a broadband provider end up on the wrong side of that. Kerr (and others) have used these laws to suggest that the privacy rules repeal isn't that big of a deal. That's inaccurate.

Both of these things can be true: repealing the privacy rules does not magically create a free-for-all with your ISPs out there "selling" your browsing history to the highest bidder and the privacy rules were useful and should not have been repealed.

The issues are -- as with so many things -- a bit more nuanced than folks on either side of the debate are making them out to be. Again, part of this goes back to the way in which online advertising works and the ways in which your data is mined and used.

Broadband providers have a fairly terrible history in respecting your privacy. No, they haven't been directly selling browsing history dossiers, but they do have long histories of snooping on you in ways that were (1) totally hidden from you and (2) extremely difficult to block. Both AT&T and Verizon, for example, were caught using nearly undetectable "super cookies" to secretly track users across multiple devices and networks -- which (despite promises that they couldn't be abused) were abused by advertisers.

And this gets back to another point that I've made repeatedly over the years: privacy is not a "thing," rather privacy is about a set of trade-offs, in which individuals recognize that they give up some privacy for some benefit and then get to decide if it's worth the trade-off. The extreme example I've used in the past is that if you leave your home to go to the store to buy some milk, you are giving up a tiny bit of privacy. Someone may see you leaving your house. They may recognize you. They may see that you're buying some milk. For most people, it's easy to judge the costs and benefits of that trade-off and to decide that the minimal loss of privacy is worth it for the ability to buy the milk (some people -- such as celebrities with paparazzi followings -- may view the trade-off differently).

But the really important thing in privacy settings is making sure that two things are true for individuals: (1) that they have the information necessary to weigh the benefits and costs of the trade-offs and (2) they have some control over those trade-offs and can adjust at least some aspects of them, by having the options be more granular and controllable.

The problem with ISP snooping and the related advertising efforts is that neither of these conditions tends to be met. The snooping is done in a way that is surreptitious and not at all clear to the end user, and their ability to control how it's done, and perhaps change some of the factors involved, is basically non-existent. The FCC's rules (somewhat weakly) were put in place to change that. First, they required more transparency about what your access provider was actually doing and, second, gave the end user more control by requiring opt-ins to particularly "expensive" behavior and opt-outs to less privacy-invasive offerings.

This is what makes people -- quite reasonably -- upset. If they were given transparent understanding of what was happening, with at least some ability to control the situation, then they could decide for themselves what information is worth giving up for what services. But, instead, the internet access industry and the online ad industry apparently continue to believe that the only way they can do what they want to do is to trick people into letting themselves be spied on, and to hide the reality of the situation. This is dumb, and will do much more harm than good to the internet in the long run.

The danger here is not so much that Verizon will be selling me the websites that you visited. It's that these ISPs, which get tremendous insight into where you surf, will make use of that data in ways you don't understand and don't control, and do things that make you feel more and more uncomfortable, and less interested in using services that can and do provide tremendous benefit. That is not good for anyone. It makes people less trustful of their services, and less willing to use the internet in unique and innovative ways. If there were a truly competitive broadband market, then that situation would be limited. Verizon or AT&T's bad behavior would be limited, because people could go elsewhere. But the issue we have today, in the US especially, is that for many users, there really are no other options -- which is why those companies have been repeatedly caught doing those kinds of sketchy, privacy-invasive things in ways that its paying subscribers both are kept in the dark about and given little to no way to block.

So, no, these new privacy rules won't create new data markets of your browsing history -- and, yes, there are other laws in place that block them from doing truly egregious activity. But the lack of a competitive market, and the nature of online advertising, combined with the fairly stupid belief that people need to be tricked into giving up their info, creates a dangerous environment, one that will harm both end users and innovation. The former FCC privacy rules took a (very small) baby step towards preventing that kind of situation... and now they're dead.

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Posted on Techdirt - 10 April 2017 @ 1:16pm

Kim Dotcom Asks US Supreme Court Not To Allow US Government To Steal All His Stuff Without Due Process

from the due-process-matters dept

Over the past few years we've covered what may seem like a side issue in the many legal issues facing Kim Dotcom, but it's an important one: is the US able to legally take all of his money and stuff, despite (1) him not being found guilty of anything and (2) that stuff not being anywhere near the US? As we've said, even if you think Dotcom is guilty of horrible crimes and should rot in jail, how the US is going about taking his assets should concern you massively. The fact that courts have blessed the DOJ's actions doesn't make it any less concerning.

On Friday, Dotcom (along with some powerhouse legal help) asked the Supreme Court to review this issue. The real issue here is one that we've covered a lot in other contexts: civil asset forfeiture, in which the US seizes and sues stuff rather than people. That's why this lawsuit is not actually against Kim Dotcom (there are other such lawsuits), but rather the United States v. All Assets Listed in Attachment A (no, really, that's the case). Of course, "Attachment A" is all of Dotcom's assets, mostly in Hong Kong. But the situation with Dotcom takes the normal questions about asset forfeiture and adds layer upon layer of complexity.

There are three specific issues that Dotcom is asking the Supreme Court to review, and all are important here. The first is whether or not a US court can allow for asset forfeiture for assets that are outside the US and outside of US government control. As the dissent pointed out in the appeals court ruling in this case, a federal court issuing a ruling is supposed to be a binding ruling, not an advisory ruling. And if the assets are held outside the US and not under the jurisdiction of the US courts, the ruling can't be binding.

The second two issues are connected: and it's basically the question of whether the courts were right in saying that the federal government could take Dotcom's stuff and that Dotcom could not protest, because he was "a fugitive." Of course, he's not a "fugitive." He's just fighting extradition to a place he's never been. He isn't running away and is going through the full legal process he's entitled to in New Zealand. That's not someone hiding from the US, it's someone who is following the basic rules of due process, which the US wishes to deny him. The specific questions are at what stage of the process he can be declared a fugitive and the other is whether or not intent needs to be shown.

As we have noted repeatedly, the Supreme Court rejects most requests to hear cases, but the lawyers here (Dotcom's long-term lawyer Ira Rothken along with legal giant Quinn Emanuel) have done a good job demonstrating real circuit splits in appeals courts on each of the three questions, which is often important in convincing the Supreme Court to actually take a case. As the filing notes:

This Court has previously admonished that the “harsh sanction” of fugitive disentitlement in a civil forfeiture action is “most severe and so could disserve the dignitary purposes for which it is invoked,” because it “foreclos[es] consideration of claims on the merits.” ... The Court noted that it “ha[d] held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States,” but left open the question of “whether enforcement of a disentitlement rule under proper authority would violate due process.” ... Nonetheless, a divided panel of the Fourth Circuit affirmed civil forfeiture based on fugitive disentitlement.

I imagine that the federal government will insist there's no reason for the Supreme Court to weigh in here, but hopefully the court decides to review the case. Again, even if you dislike Dotcom or think he's guilty of a "megaconspiracy" to infringe on copyrights, the due process questions around civil asset forfeiture should concern you -- and hopefully they concern the Supreme Court.

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Posted on Techdirt - 10 April 2017 @ 10:41am

Dangerous Ruling On DMCA Safe Harbors May Backfire On Hollywood

from the be-careful-what-you-wish-for,-mpaa dept

Late last week an important, but disappointing, ruling came down from the 9th Circuit appeals court. The ruling in the case of Mavrix Photographs v. LiveJournal found that volunteer moderators could be deemed agents of a platform, and thus it's possible that red flag knowledge of infringement by one of those volunteer moderators could lead to a platform losing its safe harbors. There are a lot of caveats there, and the ruling itself covers a lot of ground, so it's important to dig in.

The case specifically involved a site hosted on LiveJournal called "Oh No They Didn't" (ONTD) which covers celebrity news. Users submit various celebrity stories, and ONTD has a bunch of volunteer moderators who determine what gets posted and what does not. Some of the images that were posted were taken by a paparazzi outfit named Mavrix. Rather than send DMCA takedowns, Mavrix went straight to court and sued LiveJournal. LiveJournal claimed that it was protected by the DMCA safe harbors as the service provider and the lower court agreed. This ruling sends the case back to the lower court, saying that its analysis of whether or not the volunteer moderators were "agents" of LiveJournal was incomplete, and suggests it tries again.

There are a number of "tricky" issues involved in this case, starting with this: because ONTD became massively big and popular, LiveJournal itself got a bit more involved with ONTD, which may eventually prove to be its undoing. From the decision by the court:

When ONTD was created, like other LiveJournal communities, it was operated exclusively by volunteer moderators. LiveJournal was not involved in the day-to-day operation of the site. ONTD, however, grew in popularity to 52 million page views per month in 2010 and attracted LiveJournal’s attention. By a significant margin, ONTD is LiveJournal’s most popular community and is the only community with a “household name.” In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it.

As the “primary leader,” Delzer instructs ONTD moderators on the content they should approve and selects and removes moderators on the basis of their performance. Delzer also continues to perform moderator work, reviewing and approving posts alongside the other moderators whom he oversees. While Delzer is paid and expected to work full time, the other moderators are “free to leave and go and volunteer their time in any way they see fit.” In his deposition, Mark Ferrell, the General Manager of LiveJournal’s U.S. office, explained that Delzer “acts in some capacities as a sort of head maintainer” and serves in an “elevated status” to the other moderators. Delzer, on the other hand, testified at his deposition that he does not serve as head moderator and that ONTD has no “primary leader.”

It's this oversight by a paid employee of LiveJournal that makes things a bit sticky. The question is whether or not this oversight and control went so far that the volunteer moderators could also be seen as "agents" of LiveJournal, rather than independent users of the platform.

Evidence presented by Mavrix shows that LiveJournal maintains significant control over ONTD and its moderators. Delzer gives the moderators substantive supervision and selects and removes moderators on the basis of their performance, thus demonstrating control. Delzer also exercises control over the moderators’ work schedule. For example, he added a moderator from Europe so that there would be a moderator who could work while other moderators slept. Further demonstrating LiveJournal’s control over the moderators, the moderators’ screening criteria derive from rules ratified by LiveJournal

The court doesn't fully answer the question, but sends it back to the lower court, saying that it's a "genuine issue of material fact" that should be explored to determine if LiveJournal was responsible, and thus would lose its safe harbors. The specific fact pattern and details here may mean that this ruling doesn't turn out to be a huge problem in the long run for safe harbors, but... it is somewhat worrisome, in that there are at least a few statements in the ruling that are... concerning. For example:

... LiveJournal relies on moderators as an integral part of its screening and posting business model.

But... lots of sites rely on independent and volunteer moderators as a part of their business model. That alone shouldn't matter as to whether or not a volunteer is truly an agent of the company.

A larger issue may be the simple fact that even if a moderator is deemed to be an "agent" of a platform, if they're not experts in copyright, it would be ridiculous to then argue that their own failure to stop infringement makes an entire company liable. That would doom many websites that rely on volunteer help. If one were to mess up and not understand the vast nuances of copyright law, the liabilities for the platform could be immense. As Parker Higgins notes, the expectation here is unbalanced in a ridiculous way, especially as this very same court doesn't seem to think that the sender of a DMCA takedown should take as much responsibility for its actions:

Still, even if the moderator draws a paycheck from the platform, it seems unreasonable to expect them to approach thorny copyright questions with the nuance of a trained professional. That is especially true when you compare this ruling with the Ninth Circuit’s most recent opinion in Lenz v. Universal, the “dancing baby” case, which looks down the other end of the copyright gun at takedown notice senders. Notice senders must consider fair use, but only so far as to form a “subjective good faith belief” about it. If courts don’t require the people sending a takedown notice to form an objectively reasonable interpretation of the law, why should they impose a higher standard on the moderators at platforms handling staggering quantities of user uploads?

But if moderators are a platform’s “agents,” then it runs into trouble if they have actual or “red flag” knowledge of infringements. The Ninth Circuit has instructed the lower court to find out whether the moderators had either. Noting the watermarks on some of the copyrighted images in the case, the court phrased the question of “red flag” knowledge as whether “it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to a service provider’s website was infringing.” That’s an important point to watch. Copyright ownership and licensing can be extremely complex — so oversimplifying it to the idea that the presence of a watermark means any use is infringing would have profound negative consequences.

And this is why this ruling may backfire for Hollywood -- even as it pushed the court to rule this way. As EFF notes, at the very time that the MPAA is demanding that platforms do more to moderate content, the implications of this ruling may force them to do much less moderation:

The fact that moderators reviewed those submissions shouldn’t change the analysis. The DMCA does not forbid service providers from using moderators. Indeed, as we explained in the amicus brief (PDF) we filed with CCIA and several library associations, many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice.

The irony here is that copyright owners are constantly pressuring service providers to monitor and moderate the content on their services more actively. This decision just gave them a powerful incentive to refuse.

There are a few other issues in this case that are also potentially problematic. As Annemarie Bridy points out over at Stanford's Center for Internet & Society, the court seems to totally mess up the analysis of the DMCA's safe harbors by confusing part (a) of the DMCA 512 (which applies to network providers) and part (c) (which applies to online service providers):

According to the court, the section 512(a) safe harbor covers users’ submission of material to providers, and section 512(c) covers the providers’ subsequent posting of that material to their sites. There is no such submission-posting distinction in section 512. On the face of the statute and in the legislative history, it’s quite clear that section 512(a) is meant to cover user-initiated, end-to-end routing of information across a provider’s network. A residential broadband access provider is the paradigmatic section 512(a) provider. Section 512(c) covers hosting providers like LiveJournal that receive, store, and provide public access to stored user-generated content. To characterize LiveJournal as a hybrid 512(a)/512(c) provider misapplies the statute and introduces into the case law a wrongheaded distinction between submitting and posting material.

Putting aside the peculiar submission-posting dyad, the dispositive question concerning LiveJournal’s eligibility for the section 512(c) safe harbor is whether the site’s moderator-curated, user-submitted posts occur “at the direction of users,” taking into consideration the nature of moderators’ review and the fact that only about one-third of user submissions are ultimately posted. That question can be answered entirely within the ambit of section 512(c) and the existing case law interpreting it, including the Ninth Circuit’s own decision in Shelter Capital. There was simply no need for the court to invoke section 512(a) in this case.

The court's analysis here is... just weird. It's on page 13 of the ruling, and it really does seem to take a totally unchartered path in arguing that the submission of content is covered by 512(a) while the posting is covered by (c). But... that's wrong:

The district court focused on the users’ submission of infringing photographs to LiveJournal rather than LiveJournal’s screening and public posting of the photographs. A different safe harbor, § 512(a), protects service providers from liability for the passive role they play when users submit infringing material to them.... The § 512(c) safe harbor, however, focuses on the service provider’s role in publicly posting infringing material on its site.

Among the other issues with this case, there's also one on the question of whether or not the anonymous volunteer moderators should be disclosed. As we've discussed in the past, because the First Amendment also protects anonymity, any move to reveal an anonymous commenter must be carefully weighed against their First Amendment right to anonymity. The court here more or less brushes off this issue, saying that once the lower court determines the level of agency, that will answer the question on preserving anonymity:

Notwithstanding the deferential standard of review and complex issues of law that govern this discovery ruling, we vacate the district court’s order denying the motion and remand for further consideration. Whether the moderators are agents should inform the district court’s analysis of whether Mavrix’s need for discovery outweighs the moderators’ interest in anonymous internet speech. Given the importance of the agency analysis to the ultimate outcome of the case, and the importance of discovering the moderators’ roles to that agency analysis, the district court should also consider alternative means by which Mavrix could formally notify or serve the moderators with process requesting that they appear for their deposition at a date and time certain.

This is yet another important case in determining how online platforms can actually function today -- and rulings that undermine safe harbors like the DMCA frequently seem to be what Hollywood wants -- but again, this may backfire. Making it harder for these sites to function if they're actively involved in moderation only means they'll do much less of it.

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