US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like… So How About Everyone Else?

from the ignore-away dept

It’s been amusing to watch supporters of ACTA who repeatedly claim that it’s not going to matter if ACTA actually disagrees with US law, because, as an executive agreement (rather than a treaty) it “can’t” change US law. Of course, they ignore the history of such things, where suddenly lobbyists start talking up our “international obligations.” But, it appears some in the US are now claiming that Article 1.2 provides something of a giant loophole, where it states:

“Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”

We’ve even had people in our comments highlight that section, as a clear indication that each country need not change its laws. And some of the US negotiators are specifically using that clause to say that it can sign the current agreement and then point to that clause to ignore whatever they don’t like in ACTA. Of course, this response has some scratching their heads. If the US can point to that clause an opt out of any clause that they don’t like why can’t other countries do the same? And, if it’s true that any country can use that clause to effectively opt-out of anything they don’t like in ACTA, what’s the point of ACTA in the first place?

Of course, the reality, again, is that it’s because down the road, when everyone’s forgotten the promises that ACTA won’t change anyone’s laws, the lobbyists will step in and do the whole “international obligations” bit. What’s amusing to me is that the very same commenters on our site who insist that ACTA cannot change US law, and who have pointed to Article 1.2 as proof, were also the very same folks in our comments a few months ago pointing to the demands that Canada change its copyright laws by claiming “international obligations” concerning WIPO/TRIPS — even though WIPO/TRIPS, similarly, is supposed to let each country set up its laws “within its own legal system and practice.”

It’s basically all a shell game: say whatever you can to get the damned thing signed, knowing that after it’s signed, it’ll be much easier to apply lobbying pressure down the road.

Filed Under: acta, eu, laws, us

Congress About To Pass 'The ______Act of____' (These Are The People We Elect?)

from the bang-head-on-wall-slowly dept

This coming Wednesday I was supposed to be attending the Congressional Internet Caucus’ State of the Net West event, but late last week it was announced that the event was postponed, because for only the third time in the past twenty years, the Speaker of the House (in this case, Nancy Pelosi) has called the House back into session early to vote on pending legislation. With Congress back in session the Congressional reps scheduled to attend the event couldn’t make it, and it’s not much of a Congressional Internet Caucus get together without Congressional reps. Anyway, the last time the House was called back early like this, it involved emergency legislation to deal with Hurricane Katrina. So what’s so important this time around? Apparently, it’s The ______Act of____.

Yes, The ______Act of____.

It appears that our friendly Senators were in such a rush to get this bill through that they forgot to name it. Jim Harper noticed this when the bill showed up as the oddly named The XXXXXXAct ofXXXX on his always excellent WashingtonWatch site. Apparently, the Library of Congress’ Thomas reporting system converted the underscores into X’s. And, yes, even The Congressional Record (pdf) notes that “This Act may be cited as the “_______Act of______”.

And don’t think the House can easily change it, either. If it changes the name of the bill, the Senate would have to come back and vote again. In the meantime, what is the bill? Well, it’s actually been quite a moving target. It was originally about taxing executives who received TARP funds. Then it was changed entirely to have something to do with aviation, and now it’s about an Education Jobs Fund. At one point, prior to its current non-name, it was called “The Aviation Safety and Investment Act of 2010,” but that’s got nothing to do with what it is now. If you look at WashingtonWatch’s own summary of the bill, it still says the bill “would impose an additional tax on bonuses received from certain TARP recipients,” even though I don’t believe that’s in the bill any more. As Harper notes in a different blog post, since this bill (by number only) is listed on the White House’s pending legislation page, anyone tracking that bill might think Obama is about to sign into a law a bill (which hasn’t been approved by Congress) about taxing TARP bonuses… despite that not even being close to true.

I honestly have no idea if the specific details of this bill, requiring the mad dash back to DC for House Members is a good thing or not. And I don’t know whether the taxes on TARP recipients or the Aviation Safety efforts were important as well. But all of this demonstrates a few key points: (1) if you’re trying to follow what Congress is doing by following bills, the fact that they just swap stuff in and out can make that pretty difficult. (2) For a bill that’s deemed so damn important, wouldn’t you think that at least someone involved with it would have taken the time to give it a name? Or were they really in such a rush to approve it that it didn’t need a name?

Filed Under: laws, politics

Richard Blumenthal Grandstands Over Violent Video Game Ban, While Publicly Displaying Ignorance Of Facts

from the your-next-senator? dept

We’ve seen all sorts of grandstanding state attorneys general seeking higher office, but Connecticut’s Richard Blumenthal (running for the Senate) seems to work hard, not just at picking up on ridiculous anti-technology and anti-innovation topics to grandstand over, but he seems to do so with amazing cluelessness both about the law and whatever it is he’s talking about. His latest is that he’s filed an amicus brief with the Supreme Court in the case about California’s failed attempt to ban the sale of violent video games. As noted, more than 10 states have enacted such laws, and every single one of them has been struck down. You might think that an attorney general in charge of upholding the law would recognize that.

But, as Ben Kuchera at Ars Technica notes, Blumenthal seems to have announced this particular grandstanding campaign with a rather stunning number of factual errors that demonstrate an immense level of ignorance about what he’s sounding off about.

Blumenthal also seems sadly ignorant of the state of video games and retail. “In the face of continued industry inaction–enabling unattended children to buy such games–states must preserve their critical right to protect children,” he stated.

The problem with Blumenthal’s argument is that the industry has not been in a state of inaction, as the ESRB has long assigned ratings to games, giving an accurate idea of the content included in them, and has made serious efforts when it comes to community and parental outreach to make sure the ratings are both understood and used. Chains such as GameStop and even Walmart actively check the ID of customers buying M-rated games.

Then there’s the claim that video games should “follow the leadership of the motion picture industry” in its system to prevent children from viewing certain content. What he seems to be missing is that video games already have a very similar system, and have for years, and, in some ways, it’s even more restrictive than the movie industry’s.

And, of course, none of this notes that the research seems to show that violent video games aren’t actually harmful to kids after all. But, you know, when you have a Senate campaign to run, “think of the children” just plays so well with the ignorant masses…

Filed Under: connecticut, first amendment, laws, richard blumenthal, video games, violence

Judge Rejects Attempt To Fine Family For Picking Up Discarded Air Conditioning Unit

from the how-is-this-even-allowed? dept

The privacy geeks out there are all very familiar with the famous Supreme Court case California vs. Greenwood, which established the point that, once you’ve put stuff out for garbage collection, you have relinquished it as your own personal property. But that case focused on the 4th Amendment issues of things like warrants. In theory, there could still be laws unrelated to the issue in the Greenwood case concerning who can and cannot take the garbage you’ve set out. And apparently, New York City has just such a law, making it illegal to take appliances or air conditioners. There may be many reasons for this (safety, for one), but it seems like a pretty ridiculous law to try to enforce, either way. However, apparently in NYC, they actually pay people to sit and watch appliances that people have thrown out.

That’s what led to a woman and her son getting charged with a $4,000 fine for picking up a discarded air conditioner. The Consumerist lets us know that, thankfully, a judge has tossed this fine. There are so many ridiculous angles to this case, even if you believe the law is reasonable. First, two people were fined. The guy who picked up the air conditioning unit… and his aunt, who owned the car, but was not in it at the time. That seems pretty questionable as well. It’s a bad application of liability. Just because the nephew put the AC unit in the car, why should the aunt be subject to the fine?

The bigger issue, though, is the fact that NYC, which is having financial problems, actually pays people to watch appliances that people are throwing out. The original Daily News article includes a great quote from the nephew:

“Our city is going bankrupt and we are using our tax dollars to pay these guys to stare at appliances all day,” he said. “How do I get a job like that?”

Filed Under: garbage, laws, new york city, trash

How ACTA Exports Worst Of US Copyright Law Without Corresponding Exceptions

from the despite-the-assurances dept

All along defenders of ACTA have insisted that it will not change US copyright law. In fact, the argue that, since it’s an executive agreement and not a treaty, it cannot change US copyright law. However, the devil is always in the details, and the details are not good. Earlier this year, we noted that the real problems were not in what was included in ACTA, but what was left out. That is, ACTA technically includes stuff that is (mostly) already in copyright law… but leaves out all sorts of exceptions and consumer protections. On top of that, some of what it seeks to do is to “lock in” areas of copyright law that are still very much in flux — such as aspects like “inducement” that have only recently been determined by case law, but have not been discussed or reviewed in Congress itself. ACTA would prevent such changes, because if Congress later decides — for example — that it did not intend for there to be an “inducement” standard for copyright infringement (as the courts have created) it would not be able to do so because of ACTA.

With the official draft of ACTA finally released, Jonathan Band alerts us to a filing (which I’m guessing he played a large role in drafting) from the Library Copyright Alliance (along with CCIA, CEA, NetCoalition, EFF, Public Knowledge and a few other groups) that carefully and with great detail highlights the many serious problems with the released ACTA draft, detailing how it is not, in fact, in line with US copyright law, and how at different points it seeks to lock in areas of the law that are still very much in flux. You should read the whole thing:

It notes that the “official” version leaves out what countries are supporting what — and points out that there are certainly parts of the text that are still up for debate that clearly go against current US copyright law. However, with many of those, the letter gives the USTR the benefit of the doubt that it will not agree to those phrases that are clearly outside the scope of US copyright law. Instead, it focuses on the parts of the released text that do not appear to be in dispute or negotiation any more, but which still appear to go against current US copyright law:

These comments will focus on the language in the Consolidated Text that we believe the U.S. government has endorsed. While the United States probably could comply with these provisions of the Consolidated Text without amending the U.S. Copyright Act, these provisions are inconsistent with U.S. law in several significant, troubling respects. The common thread of these inconsistencies is that the Consolidated Text does not reflect the balance in U.S. copyright law. This lack of balance is at odds with the Obama Administration’s policy concerning balanced international copyright law

The biggest concern comes in the form of statutory damages. Again, the text of ACTA does not currently go beyond US copyright law, but it does tie the hands of Congress on an issue that has constantly been debated (and over which there are some ongoing lawsuits challenging the legitimacy of current statutory rates). Locking those in would be a massive problem. When you then combine that with a lack of prominent exceptions to copyright law — such as fair use (which is in US law, but not elsewhere, and is not required by ACTA), you create a situation that could present massive liability problems to US companies operating abroad:

Although the existing statutory damages framework has a chilling effect on innovation and follow-on creativity, its negative impact in the U.S. is somewhat mitigated by the existence of strong exceptions such as the fair use doctrine. Other countries, however, do not have these exceptions. And the U.S. in ACTA has not demanded the adoption of these exceptions. In other words, the U.S. seeks the export of our strong enforcement mechanisms but not our strong exceptions.

This asymmetric export of our laws could be particularly harmful to U.S. Internet companies as they attempt to expand their operations overseas. For example, U.S. courts have treated the copying of copyrighted material by search engines as permitted by fair use. In contrast, courts in Europe have found Google and other search engines liable for copyright infringement for engaging in similar activities. If ACTA is adopted, and European countries enact statutory damages, the potential exposure of U.S. search engines will increase exponentially for conduct considered lawful in the U.S. They will be liable not just for the actual damages they cause, but the level of damages set by statute. Under current U.S. law, if a company is held liable under a direct or secondary liability theory for infringements by thousands of consumers, the resulting damages (up to $150,000 multiplied by thousands of works deemed infringing) could easily bankrupt the company. Raising the possibility of similar, ruinous damages for conduct considered lawful in the U.S. would simply hinder U.S. businesses’ ability to operate abroad.

Along those lines, the letter notes that US law contains the right to decrease statutory awards in the case of “innocent infringement.” Once again, this does not show up in ACTA, so we are, yet again, exporting the draconian parts of copyright law, without any of the important strong exceptions.

The letter also highlights the attempt in ACTA to not just lock in third party liability when it comes to copyright (a concept that has been determined by case law, but not in Congress — and, in fact, was rejected by Congress when a law creating such liability was proposed a few years ago), but also appears to redefine third party liability, by expanding the definition to cover three different things, when current US law does not do that:

There are numerous problems with these two clauses of footnote 47. First, they suggest that inducement is a different test from contributory infringement; that is, they imply that there are three theories for third party infringement under copyright — vicarious liability, inducement, and contributory infringement. However, Grokster makes clear that inducement is not separate and distinct from contributory infringement.

And, of course, once again, it looks like in the issue of third party liability, ACTA makes it much stronger and removes the balance found in US copyright law:

Finally, article 2.18.3 lacks the balance present in U.S. third party liability law. Article 2.18.3 makes third party liability mandatory. In contrast, exceptions to such third party liability are only permissive: “the application of third party liability may include consideration of exceptions or limitations….”

Notice the pattern? This does a variety of problematic things. First, it creates serious problems abroad for all other countries that sign onto ACTA, giving them all the limitations of copyright law without the important exceptions (which, it’s been shown, are more important when it comes to economic activity). Second, should the US ever adapt its own copyright law, which has been going on pretty much non-stop, it locks in the limitations, but not the exceptions. That means that US law will only be able to take away the exceptions, but not ratchet down some of the problematic aspects of copyright law. That’s downright scary.

And, of course, the rationale for all of this? It’s based on studies that our own government now says were bogus.

It’s even worse when you realize that if the point of copyright law is to promote the progress of science and the useful arts and there’s no real evidence of a causal link between any particular copyright policy and greater societal progress, then it makes no sense at all to harmonize copyright laws in lockstep. Instead, it makes sense to do the exact opposite. It makes sense to let different countries experiment with different types of copyright laws so that we can actually build real evidence for what works and what does not work. Locking in a particular set of laws across much of the developed world, without any evidence as the basis is downright scary. It’s faith-based policy making, pushed almost entirely by a small group of businesses who stand to benefit. It’s an incredible shame that the USTR seems totally taken in by them.

Filed Under: acta, copyright, exceptions, fair use, laws

Draft Of Privacy Bill Introduced… And Pretty Much Everyone Hates It

from the is-that-a-good-sign? dept

Rep. Rick Boucher released a draft internet privacy bill that’s getting plenty of attention. You can read the draft on Boucher’s site (pdf) or embedded below:

In Europe, internet privacy laws are pretty standard — but in the US we’ve stayed away from them. The initial reaction to the bill seems to be that everyone hates it. Well, everyone who has a strong position and/or financial interest in it. Privacy groups say the bill is way too weak. Companies say it’s way too restrictive. As per usual, the reality is probably somewhere in the middle. The key component of the bill is that is splits up information into two categories: “covered information” which sites will have to allow users to opt-out of collection, and “sensitive information” which sites will have to have users opt-in.

Covered information (information that sites can collect, but users will have the right to “opt-out” if they don’t like it) includes:

1. The first name or initial and last name.
2. A postal address.
3. A telephone or fax number.
4. An email address.
5. Unique biometric data, including a fingerprint or retina scan.
6. A Social Security number, tax identification number, passport number, driver’s license number, or any other government-issued identification number.
7. A Financial account number, or credit or debit card number, and any required security code, access code, or password that is necessary to permit access to an individual’s financial account.
8. Any unique persistent identifier, such as a customer number, unique pseudonym or user alias, Internet Protocol address, or other unique identifier, where such identifier is used to collect, store, or identify information about a specific individual or a computer, device, or software application owned or used by a particular user or that is otherwise associated with a particular user.
9. A preference profile.
10. Any other information that is collected, stored, used, or disclosed in connection with any covered information described in subparagraphs (A) through (I).

As for “sensitive information” (which sites will require people to opt-in to collect), you’ve got:

1. medical records, including medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional;
2. race or ethnicity;
3. religious beliefs;
4. sexual orientation;
5. financial records and other financial information associated with a financial account, including balances and other financial information; or
6. precise geolocation information.

There are also some “exemptions” for the collection of information that was for “operational purposes” or “transactional purposes.” Reading through the whole thing, I have to admit I’m a bit confused as to the purpose of the bill. It seems like the “opt-in” information is the type of information that you would have to opt-in for anyway, because no website is going to be able to get that information without it. As for the opt-out information, most of that can again be handled by the user, simply through various technology offerings out there.

Perhaps I’m missing something, but this seems like the kind of bill that’s designed to say “hey, look, privacy law!” but that doesn’t really do anything to protect people’s privacy. I could see it causing a lot of trouble for sites, though, for no good reason. For example, saying that IP address information can be “opt-out” could create a massive hassle for pretty much any site that keeps log files. Imagine the fun someone could cause by visiting sites and then demanding the site remove his or her IP address from their logs. I understand the general thinking behind this, but I just don’t see it doing anything good, while I could see all sorts of unintended consequences from it.

Filed Under: laws, privacy, rick boucher

50 Cent Says The Movie Industry Will Get New Laws Passed That Will Help The Music Industry

from the say-what-now? dept

Hmm. Last fall, we wrote about 50 Cent (Curtis Jackson’s) excellent appearance on CNBC, where he said he didn’t worry about file sharing because he saw it as a part of the marketing:

“the people who didn’t purchase the material, they end up at the concert.”

That seemed rather forward looking of him. Now, however, he seems a bit more ambivalent. Copycense points us to an interview with 50, where he at first notes that the music industry is doing fine… but then busts out the claim that they need to pass new laws to help the industry:

“I don’t think the music business is dying,” 50 says in the interview. “I think we’re just experiencing technology and we just have to pass new laws, eventually, to change how music is being distributed. There’s no lack of interest in great material, I don’t see people ‘not’ going to the night club or enjoying themselves when the song comes on. It’s just about re-developing what the music business is. It’s easier to download a song that’s three minutes long, probably about three or four seconds for you to download it, it’s easier to steal…The technology is so new and what we’re actually doing on the web that we have to develop that.”

But… uh… wasn’t he just saying that the file sharing acted as marketing for his other lines of business? He seems to go back and forth between recognizing this and saying that new laws are needed, even though it’s not clear why. Then he claims that those new laws are coming… just as soon as Hollywood learns that movies are being shared online (apparently 50 hasn’t paid attention to what’s popular on the file sharing sites these days):

“And those things won’t actually happen, the effective laws won’t happen until it starts to damage film. When you got your blockbuster film doing $120 million in a weekend and then that blockbuster film that they spent $120 million comes out and nobody goes to see but everybody watched it because they could pull it off their computer and see it on HD at home on a theater. They’ll change those laws.”

Except, uh, those movies all can be downloaded, and are downloaded… and people still go to theater, just like they “still go to the night club” or to concerts, because of the social experience of going out. It’s why some of the most successful movies are also the most downloaded. It’s why even as it’s quite easy to download a film (contrary to what he appears to believe), box office results keep hitting record highs. And, it’s not like the MPAA isn’t working hard to try to change those laws, but (thankfully) there doesn’t seem to be enough appetite for the type of massive copyright changes the MPAA would like to see.

Filed Under: 50 cent, copyright, laws

As Cyberbullying Moral Panics Heat Up, Actual Rates Of Cyberbullying Decreasing

from the details,-details dept

If you hadn’t noticed, there’s been a growing moral panic around the concept of “cyberbullying”, with various states passing laws against it and Congress even considering it as well. And, of course, if you read stories in the news these days, you might think that cyberbullying is happening everywhere and that It Must Be Stopped at all costs To Protect The Children.

However, as Larry Magid is pointing out, actual studies on the issue show that so-called “cyberbullying” is on the decline and most kids are good kids who are as disgusted with the concept as adults. In fact, some research suggests that all of the stories about this “cyberbullying” threat may actually make the problem worse. That’s because kids are more likely to engage in the practice if they think it’s common. And, even though it’s not common today, all the press reports may spread the idea that it is. In the end, as Magid points out, as with other moral panics, the real solution tends to be parental education — not misguided laws.

Filed Under: cyberbullying, laws, moral panic

Driving While Yakking Laws Looking More And More Like 'Help The Gov't Make Money' Laws

from the funny-how-that-works dept

As mentioned, while I don’t think it’s safe for most people to drive while on a mobile phone, I’m a bit skeptical of laws that explicitly forbid driving while yakking. Very few of them seem actually focused on improving safety on the roads — but they do appear to be a way for state governments to make some extra cash. In California, where the fines were not that big originally, it looks like it’s about to get a lot more expensive to drive while talking with you mobile phone held up to your ear (you can still drive while yakking hands free — despite some studies showing that can be just as dangerous). The politicians involved even admitted that this was more or less the plan all along. Get the law passed by keeping the fines really low, wait a few years, and then jack up the fees. I’m all for making the roads safer, but it’s not clear that this law actually does that.

Filed Under: cell phones, driving, laws