A few weeks ago, Brian Krebs published a fantastic article entitled how not to start an encryption company, which detailed the rather questionable claims of a company called Secure Channels Inc (SCI). The post is long and detailed and suggests strongly that (1) SCI was selling snake oil pretending to be an "unbreakable" security solution and (2) that its top execs had pretty thin skins (and in the case of the CEO, a criminal record for running an investment ponzi scheme). The company also set up a bullshit "unwinnable" hacking challenge, and then openly mocked people who criticized it.
Now enter Asher Langton, who has an uncanny ability to spot all sorts of scams (he was the one who initially tipped me off to the Walter O'Brien scam, for example). He seems to especially excel at calling out bullshit security products and companies. He's spent the past few weeks tweeting up a storm showing just how bogus Secure Channels is -- including revealing that they're just rebranding someone else's free app. He also noted that the company appeared to be (not very subtly) astroturfing its own reviews, noting that the reviews came from execs at the company:
So, uh, how did SCI respond? Let's just say not well. As detailed by Adam Steinbaugh at Popehat, a bunch of anonymous Twitter accounts magically appeared attempting to attack Langton, claiming that he was violating various computer crime and copyright laws. The accounts ridiculously argued that by posting screenshots of Secure Channel's source code, he was violating various statutes, including copyright law. This is wrong. Very wrong. Laughably wrong. In one of the screenshots posted by one of these "anonymous" accounts, other browser tabs were left visible -- and you'll notice the other two tabs.
You'll note Asher's tweet, but also a primer on "computer crime laws" and a "how to take screenshots" tab (apparently it didn't include a lesson on cropping). Oh, but more important, this tweet from a supposedly anonymous Twitter user also showed that the person taking the screenshot is logged in from a different account, that just happens to be the account of... SCI's director of Marketing Deirdre Murphy. It even uses the same photo.
This same Deirdre Murphy, back in Krebs' original article, used Twitter to attack another well recognized security expert who had been mocking SCI's claims:
James said he let it go when SCI refused to talk seriously about sharing its cryptography solution, only to hear again this past weekend from SCI’s director of marketing Deirdre “Dee” Murphy on Twitter that his dismissal of their challenge proved he was “obsolete.” Murphy later deleted the tweets, but some of them are saved here.
Right. It's entirely possible that Murphy is not behind the anonymous accounts, but she's pretty clearly connected to the screenshots that showed up on those anonymous accounts -- so even if it's not her directly... it seems likely that she's associated with whoever is doing the posting.
Oh, and then it gets worse. Right about the time Steinbaugh's article was published, someone claiming to be SecureChannels' CEO Richard Blech, sent Twitter a DMCA notice over some of Langton's tweets -- and Twitter took them down:
Twitter did this despite the fact that the DMCA claim itself was pretty clearly invalid. As summarized by Steinbaugh:
About an hour and a half after this post went live, SecureChannels CEO Richard Blech (or someone claiming to be him) sent a DMCA notice to Twitter for two of Langton's tweets, complaining that they consisted of "employee pics, company and personnel, posts copyright material, hacks products and posts copyright code from products, using trademarks, targeted harassment, slander to destroy commerce." As for the description of the "original work," Blech blathered: "Cracked an app and placed code online, uses trademarked logos to attack company."
This is a censorious abuse of copyright law to suppress criticism. It is, in essence, an attempt to use copyright law for everything except copyright. That SecureChannels would use copyright law to shield criticism on the basis that its trademarks are being used and because of "slander" is, well, hysterical. This is not a company interested in permitting people to criticize it.
A little while ago, I tweeted about how ridiculous it was that Twitter's legal team would go forward with the takedown on an obviously bogus takedown notice, and within 10 minutes, I was told by someone on Twitter's legal team that the notice had been reviewed and the posts had been restored.
Either way, for a company bragging that its "security" solution is "unhackable" -- you'd think the company would be more open to actual criticism. Instead, it seems to spend an inordinate amount of time attacking critics and abusing the law to try to silence them. Odd.
While the last round of TPP negotiations didn't lead to a deal, and some are questioning whether the agreement has effectively "stalled out," there's still plenty to be concerned about, and the TPP still has a decent chance of moving forward in the near future. David Post, who has studied copyright law and related issues for many years, has a fascinating article up discussing "some pretty nasty" aspects for copyright law, which are "lurking" in "a dark corner" of the agreement. He focuses on the issue of orphan works, which are works where the owner can't be found. As we've discussed in the past, the entire "problem" of orphan works is really a problem created by the automatic application of copyright, rather than requiring registration ("formalities.") By automatically having copyright cover everything, there is no way to easily track down many copyright holders for the purpose of licensing. The Copyright Office has been struggling for years on how to deal with this issue (never apparently willing to explore the issue of returning to a registration requirement). However, as we noted earlier this year, under the current draft of the TPP, the Copyright Office's own proposal on orphan works would not be allowed.
Post digs deeper on that issue, and highlights why the TPP would kill any realistic reform to deal with orphan works:
It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. [I say that this “appears” to be the case, because, of course, the text of the TPP has not been revealed to the public, so all we have are leaked versions appearing from time to time on WikiLeaks.] Any provision of U.S. law that eliminated “pre-established damage” or “additional damages” for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability.
And, as he notes, this is actually a really big deal, even as some pretend that orphan works are just a small problem:
And if you’re still wondering “Is this really such a big deal?,” multiply it all by 10 million (or more). Remember Google Books? I don’t know about you, but I was pretty excited by the thought that every book ever published was going to be available to me over the Net — with all the lousy news out there, that sure sounded like a good thing for the human race, no? Well, the Google Books project foundered largely because of the orphan works problem. Even Google is not willing to take on $100 billion or so of potential exposure to infringement claims, and its attempts to reach a settlement that would have waived the rights of “orphan works” copyright holders to get statutory damages was unavailing — on the grounds that no court can approve a settlement waiving the statutory rights of persons who are not only not present in the courtroom to weigh in on the settlement, but who haven’t even been notified — because, of course, nobody knows who they are — that there is a settlement.
And yet, through a few choice phrases in the TPP, we may end up stuck with the orphan works problem... forever. That doesn't seem like a good policy decision, and it's not even one that the USTR will discuss publicly since the agreement is still "secret."
A couple months ago, a so-called "expert" in copyright law in Australia, Dr. George Baker, the director for the Centre of Law and Economics at the Australian National University, argued that rather than pushing back on over aggressive copyright law, New Zealand ought to be making copyright law a lot more strict, to the point that he actually argued copyright should last forever:
"Why not have copyright law like property law - ie it lasts forever?"
And then he claimed -- really -- that if copyright law were infinite it "would in turn increase the investment in industries like music." Does he have any support for this at all? If you look through the actual academic evidence on these things, no one has ever found any proof that longer and longer copyrights leads to greater investment. It's not as though Universal Music is going to think "gee, if only copyright lasted another century we'd invest more in it now." No one makes decisions like that. A key study from 1998 (the last time the US extended copyrights) in fact found that increasing copyright terms would "not be a useful" as an incentive to create more content. Even more ridiculous is Baker's focus on music, as that same study pointed out that, of all the major types of content, the revenue generated by copyright extension would have the smallest impact on music.
But Baker isn't done with his ignorance. He's also against any kind of fair use/fair dealing, even for research. Yes, this is an academic arguing against research exceptions to copyright.
Dr Barker was also critical of the exceptions that have crept in.
"It has become like Swiss cheese where someone can turn up and say I'm doing research and therefore I don't have to pay you copyright. It makes it impossible to secure investment in creative goods."
Impossible? Is he crazy? The US has decently broad fair use rights. Is he seriously arguing that it's "impossible to secure investment in creative goods" in the US because of our fair use policy? No serious person would ever make such an argument, which raises questions about just how serious Dr. Baker truly is.
Meanwhile, over at the EFF's Deeplinks blog, another New Zealand based academic, Eric Crampton, has posted a detailed rebuttal explaining why the idea of an infinite copyright is absolutely ridiculous.
So why shouldn’t copyright be infinite?
Five years ago, Larrikin Music, who bought the rights to an old Australian folk song, sued Men At Work for including an 11-note flute sequence from it in their 80s-hit, “Down Under”. Where Men At Work had intended homage in its celebration of all things Australian, Larrikin, and the law, saw copyright infringement.
But does that really go far enough? If an 11-note sequence counts as infringement, how much do modern artists owe Pachelbel’s descendants? The four-chord sequence making up the core of his Canon in D has been repeated in dozens, if not hundreds, of subsequent songs. Should evidence produced by Australia’s Axis of Awesome be used in copyright lawsuits by anyone who can document that, ten generations back, Johann Pachelbel was a great-great-grandfather? It seems absurd.
Even from the perspective of a profit-seeking artist, copyright is a double-edged sword. Stronger copyright both increases the rewards from having produced a piece of work and increases the cost of creating new works.
As the piece concludes:
Current creators draw on a global commons in their artistic creations, and future generations of artists deserve a commons too
A true expert in copyright would actually understand that simple fact.
It's already troubling enough to many people that merely linking to some content can make you subject to a DMCA takedown notice. Merely linking to content that others may have uploaded or hosted doesn't seem to fall into any of the exclusive rights covered by copyright law. But now it appears things are going even further, and Twitter is helping, for reasons that make no sense. After a Spanish film distributor sent copyright takedown notices to Twitter about the accounts of Elite Torrents and Bajui, both accounts were shut down.
Now, EliteTorrents is a torrent tracker site and Bajui is a linking site. And it's quite reasonable to argue that both sites enable a fair amount of copyright infringement. No one is arguing that point (though some would reasonably point out that neither site hosts or copies any infringing content themselves, leading back to that question of what rights are being violated by linking). However, even leaving that aside, the real concern here is that the tweets in question, which resulted in the takedown notices, didn't even link to any content. They did post film title names and a screenshot of the movie poster:
The clear implication here, of course, is that you could access a copy of that movie from the site. And it's quite likely that downloading the film via those sites would be infringing. But are the tweets alone infringement themselves? That seems like a much bigger stretch. How far would it go? Would it be infringing if I told you that you might be able to find a certain film if you went to a certain site? At some point, that's just outlawing speech.
Now, I'm sure some will argue that it doesn't matter. What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine. But we do have limits for a reason. Even if you think that EliteTorrernts and Bajui are breaking the law, does that automatically justify any and all punishment? If someone jaywalks, is it okay for them to be thrown in prison for ten years "because they broke the law." That's not how this works. Here, it's not at all clear how these tweets violated copyright law in any way, and yet Twitter took the accounts down for copyright infringement. Does that mean that Twitter will now make judgments about your off Twitter activity to determine if you deserve a Twitter account? Doesn't that ring a lot of alarm bells?
Last week we wrote about receiving our very first Right To Be Forgotten notice from Google, disappearing an earlier post that talked about articles in the NY Times that had been disappeared thanks to other RTBF requests. Yes, someone used a RTBF request to remove our article about the RTBF which was referencing other articles that someone had removed via a RTBF request.
And... yesterday we received a notification that this new article was also chucked down the memory hole thanks to a RTBF request, so that anyone who searches on a particular name in Europe will no longer see that article either. At this point, it's fairly clear that it's Thomas Goolnik who is making all of these RTBF requests, as he's the only individual named. We don't think either of our articles should be removed even under the EU's laws that allow for a RTBF, because those laws only apply to out of date/irrelevant information, and the fact that Goolnik has just now made a RTBF request in an attempt to censor us and to edit his own Google results is not obsolete information and is entirely relevant and newsworthy.
I figure it's highly likely that it won't be long before we get a notice telling us that this article, too, has been removed, so I'd like to add a special note to the Google RTBF reviewer reading this post: We are purposely not mentioning the details of the original story that Thomas Goolnik would no longer like to be associated with. Even if you believe that information is no longer relevant, this article does not discuss that. Instead, it discusses newsworthy and relevant information about Thomas Goolnik today, which is that he's filing a series of right to be forgotten requests to Google on any story that mentions his attempts to use the RTBF to delete his history. The original EU ruling clearly states that that when a search engine is evaluating a RTBF request, that it should see if the data is "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." This is not about irrelevant information from the past. This is about what appears to have happened this week or last.
Back in March, the Government Accountability Office (GAO), which tends to do really great work, came out with an absolutely scathing report on the disaster that is the Library of Congress, and didn't beat around the bush in blaming the Librarian of Congress James Billington for being technologically illiterate and out of touch, leading to gross mismanagement. The report noted that the Library of Congress appeared to have no leadership or strategic plan in place to address technology issues. Just a few months later, Billington -- who had served in the job for 27 years -- announced his retirement. And apparently things were so bad at the Library of Congress, that rather than the usual bland platitudes, people working there were immediately willing to run to the press about how excited they were to be rid of Billington:
The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.
“There is a general sense of relief, hope and renewal, all rolled into one feeling,” said one staffer who spoke on the condition of anonymity for fear of reprisal. “Like a great weight has been lifted from our shoulders.”
Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.
“It’s a great day for the library. The man has had 27 years to do good things, and he hasn’t,” she said.
The U.S. Copyright Office’s electronic registration system has been down since Friday, costing the office an estimated $650,000 in lost fees and causing headaches for approximately 12,000 customers.
The outage is part of a bigger computer failure at the Library of Congress, the federal agency that oversees the national library, provides Congress with research advice and operates the Copyright Office, a major player in the global digital economy.
Scheduled maintenance on the library’s James Madison Building resulted in buildingwide power outages, officials said. The library’s information technology office is trying to restore the systems, but officials can’t say when service will return.
Double ouch. Yes, yes, we all know that government computing is a total mess. But this is pretty disgraceful, especially for areas (both the Library of Congress and the Copyright Office) that are so closely associated with the technology world these days. Getting new management into the Library of Congress -- in particular someone who understands technology and innovation -- can't come fast enough.
It would appear that the FTC is quickly emerging as the counterforce to the FBI/NSA's push to backdoor encryption. We recently wrote about how the FTC's CTO, Ashkan Soltani, put up a blog post extolling the virtues of full disk encryption for devices, noting that it can even help to prevent or solve crimes (contrary to the scare stories you hear from the FBI and other law enforcement officials). And now, pretty quickly after that, FTC Commissioner Terrell McSweeny, has written a post for the Huffington Post arguing in favor of strong encryption as well. After discussing the range of threats, as well as the rise of personal data being collected by services, she notes that strong encryption is now being used to better protect consumers:
Encouragingly, many companies are taking meaningful steps to improve their security practices including greater use of encryption technology for data in transit and at rest, whether it be stored in the cloud or on devices. Encryption has helped protect the information of millions of consumers -- for example, protecting credit card information when a merchant is breached or protecting passwords when a popular website is hacked. The impact of major breaches may also be reduced the more that users' data and communications are encrypted end-to-end.
Moreover, there are more products on the market providing consumers with better security and privacy tools -- including encryption as the default for information stored on smartphones, apps that use end-to-end encryption, and services that encrypt data on devices and then back them up in the cloud. Competition in the marketplace of security and privacy technology holds considerable promise for consumers.
She also discusses how any attempt to backdoor encryption could create serious harm for future innovation and our economy:
This debate, sometimes called the crypto wars, is hardly new -- it has been going on in some form or another for decades. But what is changing is the extent to which we are using connected technology in every facet of our daily lives. If consumers cannot trust the security of their devices, we could end up stymieing innovation and introducing needless risk into our personal security. In this environment, policy makers should carefully weigh the potential impact of any proposals that may weaken privacy and security protections for consumers.
It's great to see the FTC coming out so publicly on this issue. I hope that others in other parts of the government will do the same as well. Unfortunately, thanks to the overly vocal FBI and NSA, many believe that the entire federal government believes that we should backdoor encryption, and that sets up a very unfortunate "us v. them" attitude between technologists and the government. Instead, it's clear that many, many people in government support strong encryption and are against backdoors. It's good to see more of them speaking up and making their voices heard.
On Wednesday, there were separate hearings in two of the most watched cases around the NSA bulk phone records collections. First up, was a hearing before district judge Richard Leon, who was the first judge to find the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act unconstitutional. As you may have heard, last week, the DC circuit appeals court struck down that ruling, focusing solely on the question of standing, saying that the plaintiff, Larry Klayman, had failed to prove that he had standing, since he used Verizon Wireless, and the documents released by Ed Snowden only showed that Verizon Business Services turned over phone records.
Of course, in a bit of a twist, while it was true at the time of the original lawsuit that there was not public information confirming Verizon Wireless participated in the program (even though many suspected it), since then the government has released documents proving that Verizon Wireless was part of the collection program. Back in court, Judge Leon made it clear he still believes that the program itself is unconstitutional (and that the appeals court did not rule on that issue, but just the standing issue). He's also well aware that under the USA Freedom Act, the bulk collection under the PATRIOT Act is about to end, so he spent the time in court suggesting strongly to Klayman that he needs to act quickly if the case is to have any meaning at all -- while also telling the DOJ he won't let them just run out the clock. The DOJ is clearly relying on the ending of this particular kind of collection under the USA Freedom Act to suggest the court has nothing to rule on, but Judge Leon isn't buying it:
Justice Department lawyer Rodney Patton noted that the wind-down of the NSA program follows Congress's passage in June of the USA Freedom Act, which ends the phone metadata collection program but also extended for about six months the legal authority under which the g was set up.
"The political branches came to a compromise," Patton said. "This court should consider what the political branches decided to do.....and not consider the extraordinary remedy of [a new] injunction."
After Patton spoke, Leon leaned in and pointed for emphasis as he warned against foot-dragging by the government. "I am not going to allow, if I can help it, any misimpression or impression that the government is trying to run out the clock here," the judge said. "I'm not going to tolerate that."
There are some procedural issues in the way, however, starting with the fact that the appeals court has not officially released the appeal to send the case back to the district court, so Judge Leon hinted very strongly, while claiming he wasn't instructing Klayman what to do, that Klayman needs to get the appeals court to officially give the case back. But he's also clear that he still believes the program is unconstitutional:
"This court believes there are millions and millions of Americans whose constitutional rights have been and are being violated, but the window...for action is very small....It's time to move."
Meanwhile, over in the 2nd Circuit appeals court -- the one appeals court to rule that this same program was unconstitutional, the ACLU has been working hard to demand that the program be shut down now even during the so-called "transition" period from the PATRIOT Act to the USA Freedom Act. The ACLU is arguing that if the program is unconstitutional, then it needs to be stopped, now, not during some "transition." Unfortunately, it appears that the court is more skeptical on that one, and willing to let the government "run out the clock." From the Guardian:
“The harm we’re suffering has no expiration date,” Abdo argued, contending that the continued surveillance, which expires on 28 November under the new surveillance regime Congress passed in June, has a chilling effect on the civil liberties group’s work.
But three judges on the second circuit court of appeals signaled a reluctance to intercede in the NSA’s ongoing surveillance, which is ostensibly designed to smooth a pathway toward letting the NSA and other federal agencies obtain vast amounts of US call records from telecoms pursuant to a judicial order.
“One would think you’re on the losing end of a civil rights catastrophe, but you’ve made tremendous progress on your point of view,” said Judge Robert D Sack, who referenced a famous Vietnam-era quote to ask if the injunction would be a moot point after November: “Why don’t you declare victory and withdraw?”
Judge Sack also compared the situation to ordering a plane to land mid-flight, rather than complete its descent. Given all that, it seems unlikely that the court will order the mass surveillance be stopped prior to the official end date set by the USA Freedom Act. And, all this means is that it's likely the government will end up with basically no punishment for having unconstitutionally spied on Americans for years.
What is it about state courts where they seem much more confused by the law than federal courts? The latest is a horrifically confused ruling out of Washington State's Supreme Court, basically handwaving its way past nearly all caselaw on Section 230 of the CDA. That law makes it clear that online service providers are not liable for actions/content of their users. This was a key purpose behind the law, which Congress passed to make sure that people couldn't file frivolous lawsuits targeting service providers, rather than the actual users who broke the law. It's a good and extremely important law in the development of the internet, having helped stop numerous frivolous lawsuits, but more importantly, for providing strong protections that made it possible for many internet services to exist in the first place. And, yet, every once in a while, a court seems to miss all of this, and today that court is the Washington State Supreme Court, ruling that Backpage.com may be directly liable for the fact that one of its users used the service to engage in sex trafficking with young girls.
Let's start by making one thing clear: the trafficking of these girls is horrific and one hopes that all legal recourse is being used against those who actually were engaged in the trafficking. But targeting Backpage makes no more sense than targeting Ford because one of its cars was used as the getaway vehicle in a bank robbery. And yet... the court rules otherwise. And it doesn't give any good reason at all, other than because it said so. The court doesn't ignore Section 230. It properly notes that Section 230 protects service providers, but not those who develop the content. And then it decides that Backpage may have created rules that "induce sex trafficking," and thus it could be seen as developing the content. Here's the key part of the ruling:
Viewing J.S. 's allegations in the light most favorable to J.S., as we must at
this stage, J.S. alleged facts that, if proved true, would show that Backpage did
more than simply maintain neutral policies prohibiting or limiting certain content.
Those allegations include that (1) "Backpage.com ... has intentionally developed
its website to require information that allows and encourages ... illegal trade to
occur through its website, including the illegal trafficking of underage girls," (2)
"Backpage.com has developed content requirements that it knows will allow pimps
and prostitutes to evade law enforcement," (3) "Backpage.com knows that the
foregoing content requirements are a fraud and a ruse that is aimed at helping
pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false]
appearance that Backpage.com does not allow sex trafficking on its website," (4)
"the content requirements are nothing more than a method developed by
Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law
enforcement for illegal sex trafficking, including the trafficking of minors for sex,"
( 5) Backpage' s "content requirements are specifically designed to control the
nature and context of those advertisements so that pimps can continue to use
Backpage.com to traffic in sex, including the trafficking of children, and so
Backpage.com can continue to profit from those advertisements," and (6)
Backpage has a "substantial role in creating the content and context of the
advertisements on its website." ... According to J.S.,
Backpage' s advertisement posting rules were not simply neutral policies
prohibiting or limiting certain content but were instead ~'specifically designed ...
so that pimps can continue to use Backpage.com to traffic in sex." ...
Given J. S. 's allegations, it does not appear "'beyond a reasonable doubt that
no facts exist that would justify recovery"' in this case, and, therefore, dismissal of
J.S.'s claims under CR 12(b)(6) is not appropriate.... It is important to ascertain whether in fact
Backpage designed its posting rules to induce sex trafficking to determine whether
Backpage is subject to suit under the CDA because "a website helps to develop
unlawful content, and thus falls within the exception to section 230, if it
contributes materially to the alleged illegality of the conduct." ... Fact-finding on this issue is warranted.
In short, because the plaintiffs claim that -- even though Backpage's terms of service directly state that you are not allowed to use the service for illegal activities such as trafficking or prostitution -- because they believe Backpage really wants that, it means that it's somehow crossed the line and helped to "develop" the content. That's bizarre and legally wrong. I imagine this will reach a federal court which will destroy this decision.
There's a concurring ruling from Justice Charles Wiggins that is even more confused and completely misreads Section 230 and the volumes of caselaw that make it clear that 230 grants full immunity to service providers. Wiggins insists that's not true. Because he's wrong.
I write separately to emphasize that this holding implies that the plaintiffs' claims
do not treat Backpage.com as the publisher or speaker of another's information under
the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230(c). The dissent
misreads this statute to provide "immunity" to '"interactive service providers.'" Dissent at
1. This reading is irreconcilable with the actual language of the statute, which does not
include the term or any synonym of "immunity." Subsection 230(c)(1) instead provides a
narrower protection from liability: the plain language of the statute creates a defense
when there is (1) a provider or user of an interactive computer service (2) whom a plaintiff
seeks to treat, under a state law cause of action, as a publisher or speaker of information
(3) that is provided by another information content provider.
Thus, when the cause of action does not treat an intermediary as a publisher or
speaker, subsection 230(c)(1) cannot be read to protect that intermediary from liability.
Plaintiffs' claims that Backpage.com created ucontent rules" specifically designed to
induce sex trafficking and evade law enforcement do not treat Backpage.com as the
publisher or speaker of another's information. Accordingly, I join the majority opinion.
This is just wrong. It's a really twisted reading of Section 230 that no court has made before. Wiggins is trying to argue that they're not blaming Backpage for the sex trafficking, but merely for the rules that induce sex trafficking (even though the company goes way beyond what's legally necessary to insist that no sex trafficking is allowed on the platform). Basically, he's arguing that if people think you mean one thing, but say another, Section 230 safe harbors might no longer apply to you. Because.
There's a strong dissent from Justice Sheryl Gordon McCloud pointing out how ridiculous it is that things got this far.
The majority holds
that J.S.'s complaint would support a claim that Backpage functions as an
"information content provider" because it alleged that Backpage maintains content
requirements for advertisements posted on its website that surreptitiously guide
pimps on how to post illegal, exploitative ads. But J.S.'s complaint clearly alleges
that another content provider, not Backpage, provided the content for the
advertisements. J.S. thus seeks to hold Backpage liable as a publisher or speaker of
that information. Subsection 230(c)(l) therefore bars J.S.'s claims.
That dissent also trashes Wiggins' attempt to parse a difference between "immunity" and a more limited liability protection:
Given the allegations in this particular case, the difference in
terminology is irrelevant. The question is how far the subsection 230( c )(1)
protection reaches, and courts interpreting subsection 230(c)(1)'s language
uniformly hold that its protection for publishers is "quite robust." They apply an
expansive definition of '"interactive computer service provider"' and a rather
restrictive definition of "information content provider." Carafano v.
They hold that the law provides immunity if the plaintiff alleges that the defendant
violated a duty deriving from the defendant's status or conduct as a publisher or
speaker. Barnes v. Yahoo!... As long
as a third party "'willingly provides the essential published content, the interactive
service provider receives full immunity regardless of the specific editing or selection
process."' Corbis Corp. v. Amazon.com.... The inquiry is whether
the defendant "function[ed] as an 'information content provider' for the portion of
the statement or publication at issue." Carafano...; see also Nemet
Chevrolet, Ltd. v. Consumeraffairs.com ...
(affirming district court's dismissal of complaint where plaintiff failed to show that
defendant "was responsible for the creation or development. of the allegedly
defamatory content at issue").
The dissent further notes that the majority decision mistakenly takes J.S.'s assertions that Backpage is the developer of content as true, even though it's clearly not the case under the law:
This allegation-that Backpage designed its posting rules to induce sex
trafficking-might prove true. Indeed, we presume it is true when evaluating the
sufficiency of J. S. 's complaint. But adopting such posting rules still does not make
Backpage a "content provider" within the meaning of the CDA, even under the Ninth
Circuit case upon which J.S., the majority, and the concurrence place principal
In fact, courts have consistently rejected the contention that defendants
"develop" content by maintaining neutral policies prohibiting or limiting certain
content. For example, in Dart v. Craigslist... which the majority cites at 7, the plaintiff claimed that even though Craigslist,
an Internet classifieds service, prohibited illegal content on its website, users
frequently posted ads promising sex for money....
Consequently, the plaintiff asserted that Craigslist "ma[de] it easier for prostitutes,
pimps, and patrons to conduct business." ... A federal court in Illinois
dismissed the claims... explaining, "Plaintiffs
argument that Craigslist causes or induces illegal content is further undercut by the
fact that Craigslist repeatedly warns users not to post such content. While we accept
as true for the purposes of this motion plaintiffs allegation that users routinely flout
Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it
has, it is only 'in the sense that no one could post [unlawful content] if craigslist did
not offer a forum."' ... see also
Chi. Lawyers'... ("Nothing in the service craigslist offers induces
anyone to post any particular listing."); Roommates, ... ("To be sure,
the website provided neutral tools, which the anonymous dastard used to publish the
libel, but the website did absolutely nothing to encourage the posting of defamatory
content-indeed, the defamatory posting was contrary to the website's express
The facts in Dart are analogous to the facts here. J.S. alleges that pimps-not
Backpage-created and uploaded the ads at issue... ("adult pimps ... posted
advertisements for the girls") ... ("adult pimps ... create[ d] ... and then uploaded
[the] advertisements of S.L. onto . . . Backpage.com"). Nothing in Backpage's
policies obligated users to flout Backpage's express content requirements or to post
unlawful content. J. S. 's allegations indicate that the pimps chose the content
ultimately used in the advertisements.... The actual
"information" at issue consisted of the particular wording and photos that the pimps
Thus, holding Backpage liable would punish it for publishing third party
content, and the CDA prohibits such liability.
It seems highly likely that Backpage will appeal and will win.
We're back again with another in our weekly reading list posts, of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also help support Techdirt.
As you've probably heard by now, Larry Lessig is may be running for President if he's able to raise $1 million by the end of this weekend -- positioning himself as a 100% referendum candidate focused on political corruption and money in politics. His plan is to pass campaign finance reform, and then resign from the Presidency. He's currently right around $750,000, which makes me think he'll make it over the line with a last minute bump.
As with the fundamentals of Lessig's campaign, I don't agree with the entire book, and I still worry about the serious unintended consequences that may occur based on campaign finance laws that sound good, but may create free expression concerns. That said, Lessig still makes a very compelling argument about just how corrupt the system really is, and how that undermines nearly everything in government. At the very least, if you're considering supporting Lessig (or, even hating on Lessig), you at least owe it to yourself to read his book, in which he lays out his ideas in a very thorough manner. And, yes, if you don't wish to buy the book from Amazon, Lessig also allows for free downloads from his own website, though (obviously) getting it that way doesn't help support Techdirt.
Back in 2013, we wrote about an Ohio medical equipment company, named Med Express, which had sued a marginally dissatisfied customer, Amy Nicholls, demanding she take down her eBay review. Her review wasn't even that bad. It just expressed dismay that the product she ordered arrived postage due, meaning she had to pay more than expected to get it. She found that to be a nuisance and expressed it. The lawyer representing Med Express, James Amodio, told Public Citizen's Paul Levy directly that he had filed the lawsuit to get the review taken down, even if it was entirely truthful. Here was Paul Levy, at the time:
I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers
A couple of days later, Med Express's President, Richard Radey, showed up in our comments, appearing to apologize for the lawsuit, and saying it was a mistake and he was instructing his attorneys to drop the lawsuit. He also claimed that the lawyers were doing a lot of this without his knowledge, but he clearly signed an affidavit claiming that the review included "false" information. Paul Levy, once again, pointed out that if this was all a big mistake, it seemed odd that Med Express had filed a bunch of similar lawsuits:
Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback.
Also, thanks to a friendly Popehat signal, Nicholls (and Rogan) had found pro bono legal support from Tom Haren and Jeffrey Nye (along with Levy), who quickly filed a response and counterclaims, meaning that even though Radey claimed Med Express was dropping the lawsuit against Nicholls, it couldn't just walk away.
And... because of that, Med Express just got hit with $20,000 in sanctions for filing a bogus lawsuit. You can read the decision here. Even without an anti-SLAPP law in Ohio, the court clearly recognized that this was a frivolous lawsuit. Not only that, the court found that Radey himself appeared to be playing word games in his own testimony to the court.
Specifically, during testimony Radey claimed that he had seen the reviews give "1" ratings in "all of those categories" (on eBay you can rate a seller on 4 different categories). However, as a representative from eBay told the court, the sellers don't actually get to see those ratings -- and, neither Rogan nor Nicholls actually gave Med Express a "1" in every category (in fact, Rogan only rated Med Express in one category and gave the company the highest rating, a 5). That's called lying by Radey.
The deposition of [eBay's] Ms. Long shows that Mr. Rady's testimony was false.
Radey then testified again, in which he tried to tap dance around his earlier false testimony. The court explains here:
Mr. Radey also testified again. His testimony varied from the first hearing in that he attempted to clarify his prior trial testimony wherein he testified he saw Defendants Nicholls and Rogan rated him with all 1's in the detailed seller ratings categories. This time he testified he must have jumped to the conclusion Nicholls and Rogan rated him with all 1's (as opposed to his prior testimony that he basically watched it happen almost live). Mr. Rady also testified he called Ebay years ago and Ebay gave him the idea to file suit against Ebay and buyers leaving negative feedback. The negative feedback could be removed by court order. The testimony wasn't credible.
Apparently, Radey and Med Express went through five different lawyers during this whole process, and back in July, their last lawyer withdrew from the case, citing "irreconcilable differences with the client." And the company has not found a new lawyer.
In the end, the court is not at all impressed by Radey.
The Plaintiff's complaints had no merit, legally or factually, when they were filed.
The court then lists out the four indications of a frivolous filing, noting that Med Express's suit violated all four.
The Plaintiff's suit was for an improper purpose. The goal was to thwart Ebay's seller ranking system for financial gain by obtaining an injunction against out of state defendants unlikely to be able to defend themselves. The Defendants did absolutely nothing wrong. They simply participated in Ebay's feedback component in exactly the manner in which Ebay intended. While Mr. Rady may perceive Ebay's seller ranking system to be unfair to sellers, the remedy wasn't to attack the buyers.
The Plaintiff's complaint was not warranted under existing law, could not have been supported by a good faith argument for an extension, modification, or reversal of existing law, and could not be supported by a good faith argument for the establishment of new law. The Defendants did nothing more than accurately recite a statement of facts and express their opinion.
Meanwhile, in Levy's blog post about this (linked above), he notes that it appears that Radey has been seeking to avoid all the negative publicity about this by changing the name of his business on eBay.
Med Express changed its eBay moniker from Med Express Sales to Medical Specialists, apparently to try to avoid the negative associations caused by its lawsuit; a recent check of eBay suggests that, although Med Express was still in business as of the second sanctions trial this past spring, it has changed its selling name again.
Either way, it looks like he's going to have to pay up for his bogus lawsuits. Hopefully this is a lesson to others who think about filing similar SLAPP suits, even where there are no anti-SLAPP laws.
Earlier this year, we discussed that, thanks to shorter copyright terms in Canada, things like early Beatles recordings and James Bond had entered the public domain up north. It was no secret that the recording industry was totally freaked out about this, and that resulted in the somewhat bizarre situation in which Canadian Prime Minister Stephen Harper single-handedly extended copyright on sound recordings for 20 years by sticking it into a budget update, without any public discussion or concern about the fact that he was simply wiping out twenty years of use of works that the public had been promised.
Of course, this extension only applied to works that hadn't yet fallen into the public domain, so there is still a small window of early 1960s sound recordings that are, in fact, in the public domain. One company, Stargrove Entertainment, sought to take advantage of this, and released a CD of public domain Beatles music, selling it at various retailers like Wal-Mart, and causing it to be the top selling CD in Canada for a little while. And that's when the recording industry struck back. According to a massive legal filing to Canada's Competition Tribunal filed by Stargrove, the big record labels conspired to shut down its ability to sell public domain music (hat tip to Michael Geist for first highlighting this filing).
There were a number of nasty tricks played by the legacy recording companies here, but it starts with the fact that, while the sound recordings are in the public domain, the compositions remain under copyright. Normally that shouldn't be a problem, as Canada effectively has a compulsory licensing system for mechanical licenses on the publishing. Pay up the standard fee and you're all good. And that's exactly what Stargrove did for that Beatles album. But, it was then that it appears the powers that be in the record labels -- who just happen to also own the major publishing companies -- suddenly decided that it would no longer approve mechanical licenses.
The publishers associated with each of the Titles include ABKCO, Casablanca and Sony
(collectively, the “Title Holders”). One by one, and in quick succession, each of the Title
Holders gave instructions to CMRRA [Canadian Musical Reproduction Rights Agency Ltd.] in January or February 2015 to stop issuing
mechanical licences to Stargrove.
A CMRRA representative professed her surprise to Stargrove at this instruction from the
Title Holders, but CMRRA followed their instruction. In fact, CMRRA went even further
and refused to grant Stargrove any mechanical licences, whether from one of the Title
Holders or not. Stargrove’s attempts to enter into an MLA were stymied by CMRRA, who
erected barrier after barrier to Stargrove’s application.
CMRRA refunded Stargrove’s royalty payment for the Titles at the end of February 2015.
On multiple occasions, Stargrove requested explanations for the refusals to grant
mechanical licences, both from CMRRA and from the Title Holders directly, and asked
them to reverse course. Stargrove has been refused an explanation, other than in a
letter from CMRRA, which stated that the Title Holders’ “refusal to deal is at least
partially related to the fact that there are public domain master recordings on the
products in question.”
Thus, even though the recordings are in the public domain, suddenly Stargrove is blocked from releasing CDs with those recordings, despite the fact that CMRRA has always approved every other mechanical license request at the standard fee ($0.083 per song, per copy for songs less than 5 minutes).
And that was just the beginning. Universal Music Canada's then-CEO, Randy Lennox, then sought to interfere with Stargrove's distribution partner, reaching out to them to try to resolve "the public domain issue."
Randy Lennox, the CEO of Universal Music Canada Inc., sent an e-mail to the principals
of Anderson, the distributors of Stargrove’s CDs, asking Anderson to partner with
Universal to find solutions and resolve what he called a “public domain issue”.
Did you know the public domain is an "issue"? Now you do...
And that's not all. Stargrove also alleges that Universal Music started posting negative reviews online of the Beatles CD:
Brian Greaves, an account manager at Universal Music Canada Inc., concocted
negative reviews on Walmart's website, complaining that Stargrove’s products were of
poor quality. He encouraged other Universal employees to do the same and to help him
with Universal’s “campaign” to discourage Anderson from distributing Stargrove’s CDs,
stating that poor reviews would deter Anderson from distributing Stargrove’s products in
the future. Walmart subsequently removed all the fake reviews from its site. Stargrove’s
CDs had a low return rate: of the over 2000 Stargrove CDs sold, only one CD was
Mr. Greaves noted that Stargrove’s CDs were taking away from Universal’s sales and
market share, and claimed that Universal had already successfully removed a Rolling
Stones title from the CDs offered for sale by Stargrove, despite the fact that the
copyright in question was held by ABKCO, not Universal.
All this because the industry so fears having to compete against the public domain. All this because, despite having total exclusivity for fifty years on some of the most popular music on the planet, that's still not enough.
It really makes you wonder why does Universal Music and the other record labels seem to hate the public so much? When those songs were recorded, everyone knew they'd be in the public domain now. That was a part of the deal. And it was certainly enough incentive to get the songs recorded at the time. So why are they so focused on continuing to block the public domain today?
Danny O'Brien, over at the EFF's Deeplinks blog, has the story of how it appears China is pressuring the developers of tools for circumventing the Great Firewall of China to shut down their repositories and no longer offer the code. Two separate, non-commercial, developers of circumvention tools have quietly gone dark recently:
The maintainer of GoAgent, one of China's more popular censorship circumvention tools emptied out the project's main source code repositories on Tuesday. Phus Lu, the developer, renamed the repository’s description to “Everything that has a beginning has an end”. Phus Lu’s Twitter account's historywas also deleted, except for a single tweet that linked to a Chinese translation of Alexander Solzhenitsyn’s “Live Not By Lies”. That essay was originally published in 1974 on the day of the Russian dissident’s arrest for treason.
We can guess what caused Phus Lu to erase over four years’ work on an extremely popular program from the brief comments of another Chinese anti-censorship programmer, Clowwindy. Clowwindy was the chief developer of ShadowSocks, another tool that circumvented the Great Firewall of China by creating an encrypted tunnel between a simple server and a portable client. Clowwindy also deleted his or her Github repositories last week. In a comment on the now empty Github archive Clowwindy wrote in English:
Two days ago the police came to me and wanted me to stop working on this. Today they asked me to delete all the code from Github. I have no choice but to obey.
The author deleted that comment too shortly afterwards.
As you may recall, back in March, China launched a massive DDoS attack on Github, targeting another tool for getting around the Great Firewall, called Greatfire. It seems equally notable that in the last week, there was another big DDoS attempt on Github.
While it may not be surprising at all that China is looking to stop tools that allow people to get past the censorship wall that the Chinese government itself has created, it still is worrisome:
Chinese law has long forbidden the selling of telecommunication services that bypass the Great Firewall of China, as well as the creation or distribution of “harmful information”. Until recently, however, the authorities have not targeted the authors of non-commercial circumvention software, nor its users. Human Rights in China, a Chinese rights advocacy and research organization, told EFF that, based on its preliminary review, VPNs and circumvention software is not specifically prohibited under Chinese law. While the state interferes with people's ability to use such software, it has not outlawed the software itself.
In November, Phus Lu wrote a public declaration to clarify this point. In the statement, he stated that he has received no money to develop GoAgent, provided no circumvention service, nor asserted any political view.
As O'Brien notes, this is a reminder that code is speech -- and government intimidation to shut down code is a form of repressing speech. Though, as with many attempts to censor, it seems like this is more for show than actual impact:
It’s also as ultimately futile: while the Chinese authorities have chosen to target and disrupt two centralised stores of code, thousand of forked copies of the same software exist—both on other accounts on Github and in private copies around the Net. ShadowSocks and GoAgent represent hours of creative work for their authors, but the principle behind them is reproducible by many other coders. The Great Firewall may be growing more sophisticated in detecting and blocking new circumvention systems, but even as it does so, so new code blossoms.
Meanwhile the intimidation of programmers remains a violation of the human rights of the coder—and a blow to the rights of everyone who relies on their creativity to exercise their own rights.
Content Creator of the Month is a new project from the Copia Institute that we'll also be highlighting here. Each month, we'll profile a new content creator who is doing interesting and compelling things, often using the internet in innovative and powerful ways. Here is the very first installment...
A few weeks ago, a couple of friends friends were tweeting about an incredible new YouTube video in which some people created a "real life first-person shooter" and hooked it up to Chatroulette, Skype and Omegle. Random people on the services were transported into this game, which they controlled with their voice. If you haven't watched it, find ten minutes to check it out (or just 5 if you speed up YouTube to 2x speed). It is incredibly detailed, and awesome beyond words:
My first reaction was to marvel at how much effort must have gone into setting all of this up. I had initially assumed the "game" couldn't go very far beyond the tiny room where it started — but it goes much, much further. My second thought was about how hard it must have been to coordinate all the sounds, effects and movements (even while recognizing that the final version is cut together from the takes that "worked"). Thankfully, the people behind it — Realm Pictures — also put together a behind the scenes video that reveals the inner workings (and doesn't make the original any less magical):
I started looking into the team, and realized I actually knew a bit about them, as this is hardly the first time that Realm Pictures has done cool stuff online. Years back, while based out of their home in Devon in the UK, these guys filmed their very own zombie flick called Zomblies, which they posted for free on YouTube. For a bunch of "amateurs" (at the time), the production value is amazing -- they even got someone to donate time in a helicopter, allowing them to film aerial shots. But there's another important piece of the story: while they were making the film, Realm Pictures was also using the internet to build up a community of people who were interested in the process, with their daily blog about the work acquiring a big following.
David Reynolds, the founder and creative director of Realm Pictures (and the voice in the first person shooter above), told me that "building a community has always been instrumental to both our process and our success with projects thus far." The community has followed them from project to project, such as the team's next giant undertaking The Underwater Realm, a series of five short films with large segments taking place underwater — an incredible challenge for any filmmaker, let alone relatively inexperienced independents. The team originally tried to use wires and a green screen, but realized it just wasn't realistic enough. Eventually someone donated a special casing for a camera, allowing them to actually film underwater (mostly in a local public swimming pool). Here's the first of those films (and they also have a behind the scenes video):
In order to make that movie, they also embraced another useful online tool, Kickstarter, to cover some of the production costs, eventually raising over $100,000 (they had sought $60,000). While Reynolds is supportive of crowdfunding, he does worry that it may be peaking, and that "the bubble is beginning to burst, as now it seems that everybody and his dog has a Kickstarter campaign."
One of the things that struck me personally about Realm Pictures is their ability to create visually amazing narrative film projects on relatively small budgets. For many years we've been debating the question of "the $200 million movie," in which traditional Hollywood studios keep asking how they can continue to make movies that require such huge budgets if people are unwilling to pay to watch them. And yet, as we've seen over and over again, technology and basic creativity are enabling the creation of incredible movies for a lot less. Much of Realm Pictures' work shows how that's possible. Still, Reynolds has talked in the past (notably in an interview with Kevin Smith) about being interested in doing a much bigger, Hollywood studio-funded version of Underwater Realm, which he estimates will cost somewhere in that $200 million range. So far, studios haven't been willing to pony up — but Reynolds insists there are lots of fun projects the company will be working on, even as they hope they'll one day be able to create that underwater epic.
Throughout these projects there's a strong thread: building a community and bringing it along for the ride. Reynolds tells me this is very important to how they've been able to succeed and, at the same time, give back to those who have supported them:
It is a practice we hope will always continue through our career, and at the same time give back to the community which has supported us by giving back in the form of a transparent insight into our work and things like the free tutorials we have released on our YouTube channel.
Reynolds points out that, in the end, none of this matters if the content isn't great, and that's always been the key: create great content for your community. Without that, the community won't last either. This is the combination that we've seen work for so many successful creators today. Creating great content is always at the core, and building up a loyal community around it helps spread that content and open new doors.
In terms of this latest video, which went viral super fast (I first saw it when it had about 3,000 views, but now it has over 7 million), Reynolds says it was just a fun project that they did in a weekend, with "one practice run, with a member of our team on a Skype call... to check that the system was working, and then straight into finding strangers on the internet." They ended up doing about 50 runs, with the few players who completed the whole "level" taking about 20 minutes. This is one of the first really "interactive" film experiences I've seen where the interactivity fits right in and doesn't feel forced (though of course now everyone is just watching instead of playing — but watching how others interact still feels kind of interactive). Reynolds points out that they're really just taking what makes video games so engaging, and moving it to video.
Oh, and Reynolds also notes that they're now working on level two of the game, so stay tuned (and maybe start using Chatroulette, if you want to play!)
You can read below for my whole interview with Dave Reynolds of Realm Pictures, our very first Content Creator of the Month.
from the flight-risk-or-concerned-about-opm-hack dept
Back in March, an absolutely crazy story came out about two members of the Baltimore-based law enforcement team that were trying to track down Dread Pirate Roberts who was behind the original Silk Road. An FBI team out of NY beat the Baltimore DEA/Secret Service team to finding Ross Ulbricht, leading to a weird situation in which, hours later, the Baltimore folks filed their own indictment with somewhat different charges, including a trumped up fake murder of a former Silk Road employee, that was supposedly "carried out" by an undercover agent, later revealed to be DEA agent Carl Force, who Ulbricht contacted for help. The story was crazy and cinematic, but apparently that wasn't even half of it, because the story in March revealed that two members of the Baltimore team, including Force, had stolen hundreds of thousands of dollars from Silk Road. It also revealed that the "murder for hire" plot against the ex-employee only happened after the Secret Service agent, Sean Bridges, stole Bitcoin from Silk Road, leading Ulbricht to think that it was the former employee, Curtis Green.
So, yes, you had a DEA agent, Carl Force, who was already moonlighting for a Bitcoin company, and who used his position as a DEA agent to steal a bunch of money from a customer of that Bitcoin company, befriending Ross Ulbricht of Silk Road while supposedly "investigating" him. Then, you had a colleague of Force's, the Secret Service agent Bridges, go and steal a bunch of Bitcoin from Silk Road immediately following the arrest of Curtis Green, one of Ulbricht's top lieutenants. Green revealed his admin login, and Bridges just went in and took a ton of money. Ulbricht then contacted Force, to help him kill Green, because Ulbricht believed that Green had stolen the money that Bridges had actually stolen. It's so complicated it feels like it needs a graphic to explain it all, but even that might be too confusing.
Either way, earlier this summer, Force pleaded guilty, and earlier this week Bridges also pleaded guilty. In both cases, some interesting additional information came out. With Force, it was that, prior to his own arrest, he'd apparently sold the rights to his story of tracking down Ulbricht to Fox for $240,000. As the government pointed out, this was a conflict of interest (you think?).
With Bridges, it's that he had been attempting to change his name and social security number, leading the judge to wonder if he was a flight risk. According to Joe Mullin at Ars Technica:
Before the proceeding ended, prosecutor Katherine Haun mentioned that the government had just received information that gave them concerns that Bridges could be a flight risk.
"The defendant had been actively trying to change his name and social security number in the state of Maryland," she told the judge. "That's very concerning."
According to Hahn, Bridges had tried to change his last name to be the same as his wife's last name and change his first name to "a very odd name." She also noted that Bridges had handed over four firearms after he was charged, and if he changed his name he could again be able to acquire weapons.
Bridges' lawyer came up with an excuse that is so ridiculous that it literally made me laugh out loud. Bridges wasn't trying to change his first name, last name and social security in order to disappear from the law, or to avoid the reputational harm of being known as a former Secret Service agent who stole hundreds of thousands of dollars from an operation he was investigating... but because he was so, so worried about the recent OPM hack of government employee files. Bridges, of course, was a government employee:
Bridges' lawyer said his client's name change attempts had been a response to concerns about identity theft following the widely reported hacking into US federal government personnel files.
"Those of who work in the federal government have to deal with that," said Seeborg. "When you're concerned with flight risk, activity of this kind sends up a lot of red flags. I’m not surprised they’re bringing this to my attention."
Somehow, among the millions of others concerned about the OPM hack, you don't hear too many stories about them trying to change their first and last names along with their social security number...
Meet Carl Crowell. Willamette Week recently ran a profile on his copyright trolling practice, based out of Oregon. Unlike copyright trolls like Malibu Media and Prenda Law, who focused on porn, Crowell has tried to cultivate a copyright trolling client list straight out of Hollywood -- which is how he ended up as the copyright trolling lawyer working for Voltage Pictures on the Dallas Buyers Club trolling efforts in Oregon. You may remember those, because he was the apparent mastermind behind the attempt to abuse trademark law to go after people in Oregon. As we noted at the time, the trademark claims were ridiculous, and clearly seemed to be an attempt to look for a more friendly state court, rather than having to go into federal court with the copyright claims.
Crowell, it appears, has other bizarre legal theories in his copyright trolling bag of tricks -- and now he's testing them out on Popcorn Time users. As you may have heard, a few weeks ago, the makers of the total flop movie, The Cobbler, with Adam Sandler (9% fresh rating on Rotten Tomatoes -- sample reviews include "grindingly dull" and "ill-conceived curio"), decided to sue a bunch of Popcorn Time users for watching the film. And, you may have heard that a very similar lawsuit was filed this week, targeting Popcorn Time users for watching another flop of a film, Survivor, starring Pierce Brosnan (8% fresh rating on Rotten Tomatoes -- with one review stating "there's a reason you probably never heard of it.").
Crowell is the lawyer behind both lawsuits, and while everyone is pretty much focused on the "ooh, they're suing Popcorn Time users" aspect of it, the lawsuits have some absolutely insanely ridiculous claims, beyond just copyright infringement -- including trying to argue that mere possession of Popcorn Time is a criminal act under an Oregon state law barring the possession of "burglary tools." From the lawsuit:
The mere possession of a software program like Popcorn Time is the type of conduct that
the State of Oregon has criminalized in ORS 164.235, which reads in part:
164.235 Possession of a burglary tool or theft device. (1) A person commits the crime of
possession of a burglary tool or theft device if the person possesses a burglary tool or
theft device and the person:
(a) Intends to use the tool or device to commit or facilitate … a theft by a
physical taking; or
(b) Knows that another person intends to use the tool or device to commit or
facilitate a … theft by a physical taking.
(2) For purposes of this section, “burglary tool or theft device” means … [any]
instrument or other article adapted or designed for committing or facilitating a … theft by
a physical taking.
(3) Possession of a burglary tool or theft device is a Class A misdemeanor.
It is acknowledged that the transfer of data, storing of the physical data locally on a hard
drive and facilitation and redistribution of the stolen data to others may or may not be a “physical
taking” under Oregon law.
Whether or not the mere possession and use of Popcorn Time is a Class A misdemeanor
under Oregon Law and punishable by up to one year in jail (ORS 161.615(1)) and a fine of
$6,250.00 (ORS 161.635(1)(a)) may be argued.
It's one thing to bury this deep within your legal filing (even though the actual claim for relief is only on copyright infringement). It's another to scream this bit of simply wrong legal theory in a press release. But, that's apparently what Dimiter Nikolov of the studio behind the total flop of a movie, Survivor, is announcing in the press release, reiterating the wacky legal theory Crowell shoved into the end of both of the Popcorn Time lawsuits filed so far:
"The mere possession of a software program like Popcorn Time is akin to the type of conduct that the State of Oregon has criminalized in ORS 164.235, which deems the possession and/or use of a burglary tool or theft device as a Class A misdemeanor," says Dimiter Nikolov, Vice President of Business & Legal Affairs at Nu Image, Inc. "It is our belief that the transfer of data, storing of physical data locally on a hard drive and facilitation and redistribution of stolen data to others should be considered a 'physical taking' under Oregon law and we felt compelled to take this opportunity to fight back and ensure that those who choose to engage in this type of behavior face real repercussions, just as a person would if they shoplifted a DVD or other physical consumer product from a retailer."
In case you're wondering, this "legal theory" is completely bullshit. First of all, copyright infringement is not theft (even if the lawsuits pretend the two are interchangeable). So the Oregon law doesn't even come close to applying. Second, even if, in some twisted way a judge considered copyright infringement to be theft, it still wouldn't matter, because 17 USC 301, which defines copyright preemption, makes it clear that federal copyright law "preempts" any state law attempts to create state level copyright laws.
Given that, and the fact that the actual claims in the lawsuit focus solely on the federal copyright claims, it makes you wonder what game Crowell and Nu Image are playing with this completely laughable legal theory. Do they really think that lying about the law will magically get people to pay for their crappy movies? Maybe, instead of inventing bogus legal theories, they should invest in making better movies.
If you thought US law enforcement's freakout about "going dark" due to encryption was insane, leave it to Turkey to take the insanity to new levels. Two journalists and a "fixer" working for Vice News in Turkey were arrested and charged with "engaging in terrorist activity"because they used the same encryption tools that ISIS uses. Really.
Three staff members from Vice News were charged with "engaging in terrorist activity" because one of the men was using an encryption system on his personal computer which is often used by the Islamic State of Iraq and the Levant (ISIL), a senior press official in the Turkish government has told Al Jazeera.
The Turkish official, who spoke on condition of anonymity, told Al Jazeera: "The main issue seems to be that the fixer uses a complex encryption system on his personal computer that a lot of ISIL militants also utilise for strategic communications."
In the article, some point out that this may really just be about scaring journalists away from the area, though it may also serve a double purpose of scaring more people away from using encryption. Just the idea that using encryption is seen as "suspicious" is already ridiculous, but to be charged with terrorism solely because you encrypt your messages is utter insanity.
A few weeks ago we noted that it appeared that Facebook was building its own ContentID system to try to takedown videos copied from elsewhere... and voila, here it is. Facebook has now announced its new system, which is powered by AudibleMagic -- the same company that powers every other such system that is not Google's ContentID. Audible Magic is the "default." It's basically the "buying IBM" of content/copyright filtering. And it tends to be pretty bad. Facebook notes that its videos are already run through Audible Magic and that has basically done nothing. So they're "working with Audible Magic to enhance the way the system works."
We'll see what that means in practice, but I expect there will be plenty of false positives and complaints about people's perfectly legitimate videos getting taken down. But, that's what happens when you live in a world where people censor first and ask questions later. Even worse, it appears that some of the new tools will only be available to a special class of Facebook users:
To this end, we have been building new video matching technology that will be available to a subset of creators. This technology is tailored to our platform, and will allow these creators to identify matches of their videos on Facebook across Pages, profiles, groups, and geographies. Our matching tool will evaluate millions of video uploads quickly and accurately, and when matches are surfaced, publishers will be able to report them to us for removal.
We will soon begin testing the beta version of this matching technology with a small group of partners, including media companies, multi-channel networks and individual video creators.
It's clear why Facebook is doing this, but it seems that following Google down this path is a pretty weak solution, rather than building something better, that doesn't take a "censor first" approach to things.
Over the weekend, Spencer Ackerman published a fairly incredible story about a newly appointed West Point professor, William Bradford, who had written a paper, published in the National Security Law Journal, entitled Trahison Des Professeurs, in which he argues (among other things) that US academics who oppose current US anti-terror policy should themselves be targets for killing as a "fifth column."
In a lengthy academic paper, the professor, William C Bradford, proposes to threaten “Islamic holy sites” as part of a war against undifferentiated Islamic radicalism. That war ought to be prosecuted vigorously, he wrote, “even if it means great destruction, innumerable enemy casualties, and civilian collateral damage”.
Other “lawful targets” for the US military in its war on terrorism, Bradford argues, include “law school facilities, scholars’ home offices and media outlets where they give interviews” – all civilian areas, but places where a “causal connection between the content disseminated and Islamist crimes incited” exist.
“Shocking and extreme as this option might seem, [dissenting] scholars, and the law schools that employ them, are – at least in theory – targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism,” Bradford wrote.
The full text in that section is even worse than it sounds above. This is the rare case where putting things back into context makes it even crazier. It flat out argues that legal scholars who disagree with official US policy should be classified as "unlawful combatants." He first describes scholars who disagree with US policy as "CLOACA" standing for "critical law of armed conflict academy" and then this:
Treat CLOACA Scholars as Unlawful Combatants
CLOACA scholarship and advocacy that attenuates U.S.
arms and undermines American will are PSYOPs, which are
combatant acts. Consequently, if these acts are colorable as
propaganda inciting others to war crimes, such acts are
prosecutable. CLOACA members are thus combatants who, like
all other combatants, can be targeted at any time and place and
captured and detained until termination of hostilities. As unlawful
combatants for failure to wear the distinctive insignia of a party,
CLOACA propagandists are subject to coercive interrogation, trial,
and imprisonment. Further, the infrastructure used to create and
disseminate CLOACA propaganda—law school facilities, scholars’
home offices, and media outlets where they give interviews—are also
lawful targets given the causal connection between the content
disseminated and Islamist crimes incited. Shocking and extreme as
this option might seem, CLOACA scholars, and the law schools that
employ them, are—at least in theory—targetable so long as attacks
are proportional, distinguish noncombatants from combatants,
employ nonprohibited weapons, and contribute to the defeat of
Later in the piece he hits back on the expected criticism that this would be seen as an attack on academic freedom. Not at all, he insists:
This critique profoundly misrepresents academic freedom,
which is not a sacrosanct right but a social contract in which the
academic agrees to search diligently for and weigh all relevant
information, specify assumptions, examine competing theories, and
acknowledge epistemological and methodological limitations
mitigating the strength of conclusions. In exchange, the people
repose trust in, and grant continued employment to, the scholar,
regardless of the destination(s) to which his search for truth leads.
Academic freedom carries with it a “moral obligation to seek the
facts without prejudice and to spread knowledge without malicious
intent;” it is not a blanket grant of immunity from the
consequences of politicized “scholarship” but a contractual license
conferring the “freedom to say that two plus two make four.”
Scholars who insist, in thrall to a hostile ideology, that two plus two
make five are precluded from searching for truth. Just as Cold War
Communist Party membership entailed uncritical repetition of Party
dogma, calling into doubt whether professor-members were fit for
their positions, so, too, does scholarship in which two plus two
make five, and five benefits Islamists, suggests CLOACA should be
evicted from the bunker of academic freedom.
In short: academic freedom means you are free to explore any topic, so long as the end result agrees with US policy, which is the undeniable "truth" like 2 plus 2. Anything else is heresy, aiding the enemy and punishable by death from above.
Basically "anything goes" so long as it's in the service of going after people Bradford doesn't like. It's "Poe's Law -- the dissertation."
Ackerman's story pointed out that Bradford, who only just started working at West Point, has a bit of a troubled history of exaggerating his own accomplishments.
In the paper, Bradford identifies himself as an “associate professor of law, national security and strategy, National Defense University”, seemingly his previous job before West Point. But a representative of the National Defense University said Bradford was a contractor at the prestigious Defense Department-run institution, “never an NDU employee nor an NDU professor”.
It appears not to be the first time Bradford misrepresented his credentials. He resigned from Indiana University’s law school in 2005 after his military record showed he had exaggerated his service. (Among his paper’s criticisms of supposedly treasonous lawyers is “intellectual dishonesty”.)
This all came out when the National Security Law Journal itself, a publication of George Mason University, put out a public apology for publishing the article in the first place:
As the incoming Editorial Board, we want to address concerns regarding Mr. Bradford’s contention that some scholars in legal academia could be considered as constituting a fifth column in the war against terror; his interpretation is that those scholars could be targeted as unlawful combatants. The substance of Mr. Bradford’s article cannot fairly be considered apart from the egregious breach of professional decorum that it exhibits. We cannot “unpublish” it, of course, but we can and do acknowledge that the article was not presentable for publication when we published it, and that we therefore repudiate it with sincere apologies to our readers.
The Journal also published a response from Jeremy Rabkin, the well known law professor at George Mason, who lit into those who decided to publish the paper in the first place:
In the Foreword to this issue of the journal, last year’s Editor-in-Chief does
acknowledge that this new issue “will not be without controversy” and may be
“discomforting at times.” The editor then offers the “hope” that “the diverse ideas you
read here – even if you disagree – will prompt you to think and respond.” That doesn’t
remotely address the problem.
When an article proposes to arrest law professors and bomb law schools and
nearby TV studios, it’s not engaging in “controversy,” but slipping into an alternate
universe. It’s not “discomforting.” It is bonkers. The journal could not reasonably have
expected readers to “respond” – unless to ask, “Are you out of your minds?”
Given all this, it's not surprising that within a day of press attention being called to this whole thing, Bradford resigned from West Point, though it still calls into question why he was hired in the first place, seeing as the article itself was published long before he started at West Point. The article further notes that Bradford had previously lost academic positions for exaggerating his credentials (though he blamed it on those darn "liberal professors" trying to oust him), and also claims that he had some odd classroom behavior choices:
A former student who wished to remain anonymous said Bradford’s behavior included “doing push-ups in class [and] making students stand and give answers in a military-like manner”.
Bradford, the former student said, ended up leaving his class – and ultimately the college – without grading the final exam.
I imagine this latest shaming will also be spun into a story about how a "fifth column" of people who hate the US are really out to get Bradford. Frankly, I can't wait to see him try to spin this as an attack on his academic freedom, though someone could just quote his own words right back to him: "Academic freedom carries with it a “moral obligation to seek the
facts without prejudice and to spread knowledge without malicious
intent." Arguing for killing those who disagree with you seems, to me, to be a form of "malicious intent."
While the FBI and NSA continue their campaign to fight against allowing encryption for devices, it's clear that not everyone in the government agrees. It does appear that there's a bit of a fight going on within the administration over where to come down (as President Obama himself admitted), and in a recent blog post, it seems pretty clear where the FTC comes down in this debate. The FTC's CTO, Ashkan Soltani, who has long been a strong user-privacy advocate (and before joining the FTC helped in some of the reporting on the Snowden documents), wrote the blog post celebrating the virtues of full disk encryption and other "end user device controls." It starts out by noting that when he recently lost his own laptop, he wasn't that worried, thanks to the fact that it was encrypted.
Strong end-user privacy and security controls, such as device encryption and firmware passwords, not only protect personal information from unwanted access – they can also make it easier to recover lost or stolen devices as well.
Last month, I had the misfortune of having a personal laptop stolen.
Fortunately for me, while I was a bit bummed about losing my two-year-old laptop, I backup regularly and always enable disk encryption which is an important step to protect the information stored on the hard-disk from unwanted access by criminals, employers, or other actors (with the exception of very sophisticated adversaries).
He notes that this actually allowed him to help track down the device, because whoever ended up with the "useless" laptop tried to bring it to an Apple Genius Bar, which resulted in Soltani receiving an email.
Fast forward to a few weeks later, when I received an email to my personal account notifying me of an upcoming Apple Genius Bar visit. I was initially confused by the email but soon realized that it's probably the thief (or the undiscerning buyer) of my laptop trying to take it into Apple for repair – likely because they’re unable to use it without knowing the firmware password I set.
I immediately began calling local law enforcement and the nearby Apple stores notifying them of the theft and this development. After a few phone calls and the help of a fantastic Sergeant in the Local Crimes Unit of the Sacramento Police department, I was able to coordinate an agreement whereby Apple would notify law enforcement if the new user brought the machine in for repair. After an initial disappointment on account of the suspect skipping his Genius Bar reservation, a representative from Apple Customer Relations notified me that the device was brought into another store and they were coordinating with Sacramento Police Department to return it to me. I’m unclear as to whether they were able to track down the original thief.
And thus, the FTC's CTO makes it clear that full disk encryption has benefits beyond even just keeping your own data safe:
In the end, strong end-user controls like device encryption and firmware passwords not only protect sensitive info stored on the device, they also prevent criminals from utilizing stolen property. The more devices feature strong end-user controls, the less likely thieves can profit from their theft on the open market.
Given that the FBI is supposed to be interested in preventing crime, you'd think James Comey would support that kind of thing...
Mike doesn't know where the Library is located in the scheme of things, presumably because he doesn't do his homework. But, I digress.
Oooh. Cheap shot.
The Library of Congress is a weird organization that effectively straddles both branches. And you know that. As an "agency of the legislative branch" it's reasonable to say that it's a part of the legislative branch -- as I did in that first post.
However, some people rightly pointed out to me that the Library of Congress is in this weird spot in which even though it is an "agency of the legislative branch" the Librarian actually officially works for the President and thus it can be argued that he's a part of the executive branch. In fact, THE WHITE HOUSE ITSELF has claimed this:
"This Court has explained that, for Appointments Clause purposes, a “Department” is a component of the government that is “in the Executive Branch or at least ha[s] some connection with that branch,” Buckley v. Valeo, 424 U.S. 1, 127 (1976) (per curiam), and is “not subordinate to or contained within any other [freestanding] component” of the Executive Branch, Free Enter. Fund, 130 S. Ct. at 3163. The Library of Congress satisfies that standard.
The Library is headed by the Librarian of Congress, who is “appointed by the President, by and with the advice and consent of the Senate,” and is authorized to “make rules and regulations for the government of the Library.” 2 U.S.C. 136. No statute limits the President’s oversight of the Librarian. Nor has Congress reserved to itself the power to review or influence the Librarian’s conduct in office.
So, yeah, it's a bit of a mess, but to argue that I'm somehow ignorant or "don't do my homework", when this is an issue that is a matter of clear dispute (including in filings before the Supreme Court)... well...
"To authorize" refers to contributory liability--only the copyright owner can authorize another to exercise one of the exclusive rights. Linking to a copyrighted work is authorizing someone to use that work, i.e., contributing to that use. If the authorization is itself not authorized, it's contributory infringement. Simple!
Not that simple. Merely linking to something is not, in any way, an "authorization." It's just a link. A pointer. A direction. If you ask me where the nearest bank is, and I give you directions, I have not "authorized" you to go to the bank, nor have I contributed to anything when you rob that bank.
That makes much more sense, thanks. Has that been used as a fair use criterion before?
Not that I'm aware of. To be clear, the court's reasoning here is a bit more complex. In last year's ruling it found that the searching and indexing was fair use using the standard 4 factors test, with a huge focus on the argument that the use is "transformative" (I agree!).
And thus, the analysis of these features was whether or not they were integral to the main product -- and *because* that product was deemed transformative, the judge's reasoning is that if these other features are integral, then they're part of what makes it transformative, and thus okay. So, the court argues, it doesn't need to do a separate four factors test for each here, just determine if it should be a part of the service already deemed fair use. And that's a little weird.
Also, the court is not particularly consistent in how it makes these determinations, as it's a bit of thumb in the air with each call and sometimes changing the rules as it goes.
Courts shouldn't get to decide which features of your service are OK? Actually that's pretty much the core of what a court is for: deciding what is and what is not OK. If a business is sued for fraudulent practices, would you complain that we don't want courts deciding what parts of their service are OK, and we should leave it to the market to decide?
Fraudulent practices is something different. That would be looking at if consumers are somehow being cheated. But in this case, the court is determining if these features are "integral" to the overall service. That's the troubling part.
I don't have a problem with courts determining that a company is committing fraud. Or even that it's committing copyright infringement. I do have a problem with the court saying that the fair use test is based on whether or not *THE COURT* thinks that the feature is important to the service.
Exactly. They are selling out and doing it fast.. This is not advertising is content that Mike is such a fan of. This is selling out to a third party
Actually, this is exactly advertising is content -- and seeing how many people actually click on and buy stuff every day, many of our readers appear to appreciate the deals. We are presenting potential deals for users, and many of them appreciate it. That's a win-win. People are getting something they want to buy and we make some money in the process.
It seems a lot better than invasive pop ups or selling your information or anything like that.
This is very much a great example of advertising as content. And, from the numbers, a very large number of our readers find it content they not only appreciate, but wish to spend money on.
You are destroying your credibility and our belief in your honest reporting of news articles by presenting spam as legitimate news. Want you are telling us is that you are for sale and will write anything in a news article if you make enough money.
These posts are clearly not presented as news articles -- but as part of our daily deal feature. They are clearly marked as deals posts, and from the response to them, plenty of people seem to appreciate the deals and take part in them.
We are not misrepresenting anything. We are not presenting "news" that we are being paid for. I do not understand your complaint other than you don't like these deal posts. It is not that difficult to ignore them if that's the case.
And, yes, these deals do help us stay in business. We do them instead of invasive things like selling data, pop ups, or other nefarious things. Would you prefer we make no money at all and not be able to publish anything?
Here's another conjob from the assholes of Silicon Valley:
Just because there are some assholish companies, as we all agree their are, how does that make it that all Silicon Valley companies are jackasses. Would you accept that if I pointed to a jackass musician that it means all musicians are jackasses? Or if I point to one example of a label ripping off musicians that all labels rip of musicians?
Thank god the government stepped in.
Or what? People might have eaten a product that is actually healthier for them, and which has all of its ingredients clearly listed on the label? Oooooooooh. The horror.
It wouldn't be so bad if Uber & Lyft had their own vehicles, or at least some vehicles so that people who were interested but whose cars are older than 5 years could still participate. Taxi companies own (or lease) their vehicles; they don't make their drivers provide them.
If the company owned its own vehicles, then it would be a taxi service. But it's not. It's a software platform for connecting willing drivers with willing riders. That's it.
Did you even bother reading the linked articles? The only thing that their responses could possibly be "better" than would be officers of the company literally showing up in person and assisting the perpetrators in victimizing their customers!
I'm confused as to why you're blaming the companies for these issues. As others pointed out to you, there are crazy cab drivers too (and in those cases you often don't even know who it is and there's no reputation associated with the drivers). Same thing with most bed and breakfast situations.
Bill Maher makes less and less sense the older he gets. "They forgot to build an app for sharing the profits." Uh, yes, they did actually. That's why people offer their homes on up on AirBnB or drive for Uber or Lyft -- because they're MAKING MONEY doing so. That's even more insanely stupid that Maher's standard idiocy.
The quote you have, in the most recent report, is designed to focus on the changes from 2011 to 2013. By 2011, certainly, it was no longer mostly about "catching up" on old missing tracks. Yet, it still went from 100 million to 180 million in just two years. Even if a bunch of that was missing tracks, a ton of it was new tracks.
Much of the market growth didn’t make it down to artists: The live music value chain is an incredibly complex one with multiple stakeholders taking their share (ticketing, secondary ticketing, venues, booking agents, promoters, tax, expenses etc.). The share of live revenue that artists make from live has declined every year since 2000. The impact on the total market is that total artist income (i.e. from all revenue sources) has declined every year too since 2009.
Yeah, live is a tricky business to track, and no one has particularly good numbers. It's a challenge, no doubt. Pollstar is the one that everyone goes to, but really only covers the big concerts. We tried to work with others, like Songkick, to get smaller venue data, but the data is quite limited. And, no doubt, touring is a very difficult way to make money.
While Johnson points to touring, we only mention it in passing, because we think other business models appear to be working much better for many artists, including direct to fan (Bandcamp), crowdfunding (Kickstarter, Patreon) and other things as well.
Your own report seems to have the same sort of figures with the exception that you seem to think that a massive increase in the Gracenote database equals a surge in creativity. In 2001, your first date, iTunes was at version 1 and had Gracenote incorporation, since then I've entered data for about 200 CD's myself (mostly small indie releases from New Zealand by artists who didn't know about Gracenote at the time), though I haven't had to enter anything for quite a while. Very few of these CD's were new releases, most were old discs I was digitising.
Did you read the report? We actually note this limitation to the data: "Now, that growth of the Gracenote database obviously includes a lot of older music that has only recently been indexed, so its expanding index doesn't exactly serve as the ideal proxy for the increasing rate of production of new music." We did present plenty of other evidence to show that there is a ton of new music, including the data from TuneCore.
So it's weird for you to suggest that we only relied on Gracenote. We did not, and directly indicated the limitation you pointed out.
That's the point. Mike's calling for figures to show that Johnson is wrong. These are Johnson's only financial figures for music, and they don't back him up at all and, as you say, are useless.
The figures I was discussing was the number of people who are making their living as creators. And I said I wanted proof that the overall numbers were declining, not just that Johnson was off. We have lots more numbers in our reports.
Your side presents... nothing other than a few failed creators whining.