Gigi Sohn’s Full Statement On Withdrawing Her FCC Nomination

Politics

from the a-real-loss dept

Yesterday, Karl wrote about the absolutely ridiculous situation in which the person perhaps most qualified to be an FCC commissioner, Gigi Sohn, had to withdraw her nomination, which had languished over nearly two years, mostly due to a bunch of absolute ridiculous bullshit lies from telecom and media giants who hated the idea of her being in that job. As someone who has known Sohn for well over a decade, the whole situation is infuriating. Almost all of the claims about her were ridiculous lies, or at least misleading. Anyone who knows her (even those opposed to her policy goals) recognizes that she’s smart, competent, knowledgeable, and focused on actually doing what’s best for the public. She is not, as some falsely framed her, some sort of “partisan” hack.

The whole thing is incredibly frustrating.

It’s no surprise that the GOP united against her. They would do that for almost any nominee. But it’s sad that the telcos and cablecos were able to convince enough Democrats to go along with it, and that it never really seemed like there was a strategy from the administration to get her approved.

Either way, Karl posted just an excerpt of Gigi’s statement, but I think it’s worth people reading the whole thing, so we’re posting it here. Gigi has spent decades literally fighting to make the internet better for you and for me, and not for giant companies. Her withdrawing from this process is a loss for all of us.

Last night after discussions with my family and careful consideration, I made the decision to ask President Biden to withdraw my nomination to the Federal Communications Commission. When I accepted his nomination over sixteen months ago, I could not have imagined that legions of cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money political groups with bottomless pockets would distort my over 30-year history as a consumer advocate into an absurd caricature of blatant lies. The unrelenting, dishonest and cruel attacks on my character and my career as an advocate for the public interest have taken an enormous toll on me and my family.

Unfortunately, the American people are the real losers here. The FCC deadlock, now over two years long, will remain so for a long time. As someone who has advocated for my entire career for affordable, accessible broadband for every American, it is ironic that the 2-2 FCC will remain sidelined at the most consequential opportunity for broadband in our lifetimes. This means that your broadband will be more expensive for lack of competition, minority and underrepresented voices will be marginalized, and your private information will continue to be used and sold at the whim of your broadband provider. It means that the FCC will not have a majority to adopt strong rules which ensure that everyone has nondiscriminatory access to broadband, regardless of who they are or where they live, and that low income students will continue to be forced to do their school work sitting outside of Taco Bell because universal service funds can’t be used for broadband in their homes. And it means that many rural Americans will continue the long wait for broadband because the FCC can’t fix its Universal Service programs.

It is a sad day for our country and our democracy when dominant industries, with assistance from unlimited dark money, get to choose their regulators. And with the help of their friends in the Senate, the powerful cable and media companies have done just that.

I want to thank President Biden for his faith in me and for my champions in the Senate who defended me at every turn. I especially want to thank the dozens of people who volunteered their time and energy to help me through this process, as well as the over 400 organizations, companies and trade associations, and hundreds of thousands of individuals who registered their support with the Senate. I will forever be grateful for their efforts on my behalf.

I hope the President swiftly nominates an individual who puts the American people first over all other interests. The country deserves nothing less.

Filed Under: corruption, fcc, gigi sohn, public interest

Top Disney Lawyer To Become Top Copyright Office Lawyer, Because Who Cares About The Public Interest?

Copyright

from the mickey-mouse-operation dept

People at the Copyright Office seem to get mad at me every time I suggest that the Copyright Office is captured by Hollywood, and pointing out how top officials there all seem to bounce back and forth between the Copyright Office and Hollywood.

That’s not to say there aren’t some good people there, because there are. But the organization is dominated by former (and, if the past is any indication, soon to be again), lobbyists and lawyers of the biggest copyright abusers on the planet. So it’s difficult to take the Office seriously as a steward for the public good (as they are supposed to be), when it’s currently headed by the former top lawyer at IFPI, who, before that, was the top IP lawyer for Time Warner. And, when she then decides to hire Disney’s top “IP lawyer” to become General Counsel of the Copyright Office (as has just been announced), it becomes really difficult not to be cynical.

This is what regulatory capture looks like.

But even worse, actions like this are why the public doesn’t believe in copyright. Over and over again all we see is abuse of copyright, and then the government puts the same people who have abused copyright in charge of copyright at the Copyright Office, it makes the public cynical and (reasonably) distrustful of the intentions of the Copyright Office. That’s disappointing, as there are plenty of people who have expertise in copyright law who would be great for the Copyright Office. But, for some reason, they never get hired into the top jobs unless they’ve spent time working for one of the giant Hollywood or recording industry organizations.

Filed Under: copyright, copyright office, corruption, public interest, regulatory capture, shira perlmutter, soft corruption, suzanne wilson
Companies: disney

15 Universities Have Formed A Company That Looks Remarkably Like A Patent Troll

Patents

from the feeding-the-trolls dept

Imagine this: a limited liability company (LLC) is formed, for the sole purpose of acquiring patents, including what are likely to be low-quality patents of suspect validity. Patents in hand, the LLC starts approaching high-tech companies and demanding licensing fees. If they don?t get paid, the company will use contingency-fee lawyers and a litigation finance firm to make sure the licensing campaign doesn?t have much in the way of up-front costs. This helps give them leverage to extract settlements from companies that don?t want to pay to defend the matter in court, even if a court might ultimately invalidate the patent if it reached the issue.

That sounds an awful lot like a patent troll. That?s the kind of entity that EFF criticizes because they use flimsy patents to squeeze money from operating companies, rather than making their own products. Unfortunately, this description also applies to a company that has just been formed by a consortium of 15 large research universities. 

This patent commercialization company has been secretly under discussion since 2018. In September 2020, it quietly went public, when the University of California Regents authorized making UC Berkeley and UCLA two of its founding members. In January, the DOJ said it wouldn?t challenge the program on antitrust grounds. 

It?s good news when universities share technology with the private sector, and when startup companies get formed based on university research. That?s part of why so much university research is publicly funded. But there?s not much evidence that university patenting helps technology reach the public, and there?s a growing body of evidence that patents hinder it. Patents in this context are legal tools that allow someone to monopolize publicly-funded research and capture its promise for a private end.

While larger tech companies can absorb the cost of either litigating or paying off the patent assertion entity, smaller innovators will face a much larger burden, proportionately. That means that that the existence of this licensing entity could harm innovation and competition. When taxpayers fund research, the fruits of the research should be available for all. 

With 15 universities now forming a consortium to license electronics and software patents, it?s going to be a mess for innovators and lead to worse, more expensive products.

Low-Quality Patents By The Bundle 

Despite the explosion in university patenting and the growth of technology transfer offices (essentially university patent offices), the great majority of universities lose money on their patents. A 2013 Brookings Institute study showed that 84% of universities didn?t make enough money from their patents to cover the related legal costs and the staffing of their tech transfer office. Just a tiny slice of universities earn the majority of patent-licensing revenue, often from a few blockbuster pharmaceutical or biotech inventions. As many as 95% of university patents do not get licensed at all.  

This new university patent licensing company won?t be getting any of the small number of impressive revenue-producing patents. The proposal sent to the UC Board of Regents explains that the LLC?s goal will be to get payment for patents that ?have not been successfully licensed via a bilateral ?one patent, one license? transaction.? The universities? proposal is to start by licensing in three areas: autonomous vehicles, ?Internet of Things,? and Big Data. 

In other words, they?ll be demanding licensing fees over lots and lots of software patents. By and large, software patents are the lowest quality patents, and their rise has coincided with the rise of large-scale patent trolling.  

The university LLC won?t engage in the type of patent licensing that most actual university spinoffs would want, which are typically exclusive licenses over patents that give it a product or service no one else has. Rather, ?the LLC will focus on non-exclusive sublicenses.? In other words, they?ll use the threat of litigation to attempt to get all competitors in a particular industry to pay for the same patents. 

This is the same model pursued by the notorious Intellectual Ventures, a large patent troll company that convinced 61 different universities to contribute at least 470 different patents to its patent pool in an attempt to earn money from patents. 

What about the Public Interest? 

The lawyers and bureaucrats promoting the UC patent licensing scheme know how bad this looks. Their plan is to use patents as weapons, not tools for innovation?exactly the method used by patent trolls. In the ?Pros and Cons? section of the memo sent to the UC Regents, the biggest ?Con? is that the University of California ?may incur negative publicity, e.g., allegations may arise that the LLC?s activities are tantamount to a patent troll.? That?s why the memo seeks to reassure the Regents that ?it is… the expectation that no enforcement action will be undertaken against startups or small business firms.? This apparently nonbinding ?expectation? is small comfort. 

The goal of the patent-based LLC doesn?t seem to be to share knowledge. If the universities wanted to do that, they could do it right now. They could do it for free, or do it for a contracted payment?no patents required. 

The real goal seems to be finding alleged infringers, accusing them, and raising money. The targets will know that they?re not being offered an opportunity?they?ll be under attack. That?s why the lawyers working with UC have promised the Regents that when it comes time to launch lawsuits against one of the ?pre-determined targets,? they will steer clear of small businesses. 

The university LLC isn?t going to license their best patents. Rather, the UC Regents memo admits that they?re planning to license the worst of them?technologies that have not been successfully licensed via a ?one patent, one license? transaction by either UCLA or UC Berkeley. 

To be clear, universities aren?t patent trolls. Universities are centers for teaching, research, and community. But that broader social mission is exactly why universities shouldn?t go off and form a patent-holding company that is designed to operate similarly to a patent troll. 

Patents aren?t needed to share knowledge, and dealing with them has been a net loss for U.S. universities. Universities need to re-think their tech transfer offices more broadly. In the meantime, the UC Regents should withdraw from this licensing deal as soon as possible. Other universities should consider doing the same. The people who will benefit the most from this aren?t the public or even the universities, but the lawyers. For the public interest and innovation, having the nation?s best universities supply a patent-trolling operation is a disaster in the making. 

The fifteen members of the University Technology Licensing Program are expected to be: 

• Brown University
• California Institute of Technology (Caltech)
• Columbia University
• Cornell University
• Harvard University
• Northwestern University
• Princeton University
• State University of New York at Binghamton
• University of California, Berkeley
• University of California, Los Angeles 
• University of Illinois
• University of Michigan
• University of Pennsylvania
• University of Southern California
• Yale University

Republished from the EFF’s Deeplinks blog.

Filed Under: patent trolling, patents, public interest, shakedowns, tech transfer, universities
Companies: uc berkeley, ucla

What A Coincidence! Same Day Senator Burr Dumped His Stock, So Did His Brother-in-Law!

Legal Issues

from the what-an-amazing-stroke-of-luck! dept

Senator Richard Burr’s potential insider trading issues, for which he’s being investigated, may have gotten quite a bit worse this week. A new report notes that on the same day Burr sold off a “significant percentage” of his stock holdings (while also telling the public not to worry about COVID-19), it turns out his brother-in-law just coincidentally decided to dump a bunch of stock too. Amazing!

Sen. Richard Burr was not the only member of his family to sell off a significant portion of his stock holdings in February, ahead of the market crash spurred by coronavirus fears. On the same day Burr sold, his brother-in-law also dumped tens of thousands of dollars worth of shares. The market fell by more than 30% in the subsequent month.

Burr?s brother-in-law, Gerald Fauth, who has a post on the National Mediation Board, sold between $97,000 and $280,000 worth of shares in six companies ? including several that have been hit particularly hard in the market swoon and economic downturn.

Could this actually be a coincidence? Sure. Maybe. But the timing (the very same day…) does seem notable. As the ProPublica report notes, Fauth “is not a frequent stock trader.” Burr insists that his sales were based on public information, though it’s difficult to see how he could simply ignore the classified briefings he got concerning the rising pandemic issues, and base decisions entirely on public information. Indeed, this is why government officials should be required to hand off any equities like this to a blind trust where they have no visibility into how it’s traded.

Even if this is all legal (which is not certain either way yet…), it again reinforces the belief that the powerful live by different rules and are able to game the system for personal advantage, even as they’re supposed to be serving the public interest.

Filed Under: gerald fauth, insider trading, public interest, richard burr, soft corruption, trust

Revolving Door Revolves Some More: Head Of Copyright Office Leaves To Join MPAA

Movie Industry

from the hollywood's-hooks dept

For many years we’ve been covering the rather disturbing revolving door between the US Copyright Office and Hollywood. This includes a bunch of copyright maximalists going back and forth between entertainment industry lobbying organizations and government positions. It seems to happen over and over and over again. Indeed, the former head of the Copyright Office, Maria Pallante, now leads the Association of American Publishers, where she’s been advocating for ever more ridiculous copyright laws.

And, now we find out that the current head of the Copyright Office, Karyn Temple, a former RIAA VP, who only just became the official Copyright Register (after a few years of being the “interim” Copyright Register after Pallante was fired), has jumped ship to the MPAA. Because of course.

Karyn A. Temple, one of the world?s leading authorities on copyright, has been named Senior Executive Vice President and Global General Counsel at the Motion Picture Association, Chairman and CEO Charles Rivkin announced today.

Temple will join the association in January after serving more than eight years in the U.S. Copyright Office, most recently as the Register of Copyrights, where she fulfilled her statutory authority to administer U.S. copyright law and advise members of the U.S. Congress, federal courts, and executive branch agencies on issues of copyright law and policy.

This is all perfectly legal, but given some of the many questions people have raised over the years about why the Copyright Office frequently appears to be more an arm of Hollywood, rather than the American public (as is supposed to be the case), this move should raise a few more eyebrows. It won’t, of course. This is just how things are done.

But even Hollywood folks should be concerned about this. For all the laughable claims it makes about how we need more “respect” for copyright, the one doing the most to undermine that respect is Hollywood itself, with such a blatant display of “soft corruption.” No one actually believes the Copyright Office has any of the public’s interests in mind, when the head of the office is simultaneously lining up her next job directly with Hollywood’s biggest lobbyist.

No one respects copyright because Hollywood has made sure it deserves no respect.

Oh, and I guess it deserves mention that the reason the MPAA needed a General Counsel is because the last one got arrested on charges of blackmail and sexual assault.

Filed Under: copyright, copyright office, karyn temple, lobbying, public interest, revolving door
Companies: riaa

Big Four Broadcasters Sue Streaming Video Provider Locast, Claim It's 'Aereo 2.0'

Copyright

from the when-at-first-you-don't-succeed dept

The nation’s four biggest broadcast networks (ABC, CBS, Comcast NBCUniversal and Fox) have filed suit (pdf) against a streaming video nonprofit they say is “illegally using broadcaster content.” New York based Locast offers viewers access to over the air broadcasts via the internet to roughly 13 cities (about 31% of the US market). Its website notes the operation is funded by donations and that access to this content (again, already accessible for free via an antenna) should be a consumer “right” given that US consumers technically own the airwaves these programs are broadcast over.

Not too surprisingly, the big four broadcast networks disagree, something we had expected:

“Locast is simply Aereo 2.0, a business built on illegally using broadcaster content,? the lawsuit reads in part. ?While it pretends to be a public service without any commercial purpose, Locast?s marketing and deep connections to AT&T and Dish make clear that it exists to serve its pay-tv patrons.”

Aereo, you may recall, attempted to set up a bunch of cumbersome micro-TV antennas which it could then use to stream broadcast TV to paying subscribers. The company’s technical approach was intentionally designed to be arguably ridiculous in a bid to comply with the law and a number of historically just as ridiculous copyright case rulings. The Supreme Court ultimately demolished Aereo with a dubious ruling that made numerous assumptions and provided zero guidance for companies who wanted to enter the space but comply with the law.

Enter Locast. The company was developed by former FCC lawyer and media executive David Goodfriend, who, we noted previously, designed the service entirely from the ground up in a bid to try and comply with (and test the logic of) the current legal minefield. It’s funded in part by AT&T and Dish Networks. But unlike Aereo, Locast is a non-commercial entity offering access to over the air broadcasts via the internet for free. In an interesting New York Times profile piece last January (a good read to fully understand what Locast does), Goodfriend had this to say:

“We really did our homework,? he said. ?We are operating under parameters that are designed to be compliant within the law.”

Of course Aereo also thought it had designed a system that would comply with the nation’s muddy laws on this subject, and yet here we are. Goodfriend (quite correctly) notes that the public technically owns the airwaves and that initially, over the air broadcasts were designed as a free, public good, something that’s been lost in a mad scramble for cash in the years since:

“Our society got way over-commercialized in the ?40s and ?50s, when media policy was being hammered out,? he said. ?As a result, we don?t have stuff for the public anymore.?

?The American people have given you something really valuable, the airways, for free,? he said, talking about the broadcasters, his eyes popping at the word ?free.? Slowing down for emphasis, he added: ?So shouldn?t we get something back for free? Which is great television. That?s the social contract, right?”

The difference being that Goodfriend designed Locast after teaching the Aereo case to law students at Georgetown. It’s built from the ground up with a solid understanding of what happened to Aereo, and the expectation that the operation would likely be sued. Whether that matters of course will depend entirely on the Judges that hear the case. The lawsuit leans heavily on the claim that because AT&T and Dish have helped fund the project, it’s little more than a ruse to help some companies avoid paying retransmission fees (ignoring that both companies pay these fees to stream this content via other services already).

This should be a very interesting one to watch.

Filed Under: airwaves, broadcast tv, copyright, david goodfriend, free, public interest, spectrum
Companies: abc, aereo, at&t, cbs, comcast, dish, fox, locast

Top EU Court Rules Public Interest Is More Important Than Protection Of Commercial Interests

Legal Issues

from the healthy-precedent dept

As Techdirt noted some years back, there has been a steady push to strengthen the protection afforded to trade secrets. Similarly, the argument is often made that transparency must be subordinated to protecting commercial interests, as happened recently in an important struggle over access to information in the EU. It concerned the safety of the chemical glyphosate, widely used as a herbicide, for example in Roundup from Monsanto (now owned by the German chemical giant, Bayer). The EU body responsible for assessing risks associated with the food chain is EFSA (European Food Safety Authority). As part of the process of renewing approval for glyphosate, which was granted in 2017 for five more years, EFSA conducted a review of the toxicity and carcinogenicity of the chemical, drawing on a variety of published and unpublished data. Whether glyphosate increases the risk of cancer is a highly contentious area, with widely differing expert views:

In March 2015 the International Agency for Research on Cancer (IARC) working group of experts classified Glyphosate in Group 2A (probable human carcinogens) with strong evidence for a genotoxic mechanism of carcinogenicity. The Joint WHO/FAO Expert Meeting on Pesticide Residues (JMPR), which is responsible for assessing the risk of pesticide residues in Food in Codex, originally evaluated Glyphosate in 2004. JMPR did not find evidence for carcinogenicity in humans and assigned an Acceptable Daily Intake (ADI).

In 2018, a US court ordered Monsanto to pay $289 million in damages to a former school groundkeeper who sued the company after he was diagnosed with non-Hodgkin’s lymphoma, which he claimed was caused by his exposure to glyphosate. The award was later reduced to $78 million, still a significant sum.

In the EU, a group of four members of the European Parliament, and another individual, asked separately to see two key industry studies that were used by EFSA in coming to its decision in favor of approval. EFSA refused, because it claimed that disclosure of the information might seriously harm the commercial and financial interests of the companies that had submitted the data, and that there was no overriding public interest justifying disclosure. Those seeking access appealed to one of the EU’s highest, but least-known, courts, the General Court of the European Union. Its job is to hear actions taken against the institutions of the EU, as in this case. The court has just issued its judgment (pdf):

an overriding public interest in disclosing the studies is deemed to exist. EFSA could not therefore refuse to disclose them on the ground that that would have an adverse effect on the protection of the commercial interests of the owners of the requested studies.

Potentially, that ruling could have a big impact on future cases where EU institutions seek to prevent information relating to health and the environment being released on the grounds it would allegedly harm commercial interests. It’s also a setback for the general idea that business secrets should trump transparency.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: commercial interests, efsa, eu, glyphosate, public interest, roundup, studies, toxicity
Companies: bayer, monsanto

No, The Public Standing Up For An Open Internet Is Not A Criminal Google Conspiracy

Too Much Free Time

from the the-public-is-not-google dept

Over the past decade, we’ve talked about music industry lawyer Chris Castle and his bizarre interpretation of reality a few times. He insists that anyone supporting the legal sharing of content via Creative Commons is “self-serving shilling for the self-absorbed on the short con,” which I’m sure must have sounded clever in his mind. A key target for Castle and his friends is that Google is the representation of all that is evil in the music industry. It’s a convenient foil. Castle and his friends see Google lurking behind anything that’s not like the old days, similar to the way that adults freaked out that pinball machines were destroying the minds of the youths in earlier generations.

Castle’s latest claim, however, is positively crazy. Not only is he upset about the EU Parliament has agreed to reopen Article 13 of the EU Copyright Directive for discussion, he’s decided that the only reason they did so must be due to a criminal conspiracy by Google, for which he is demanding an investigation.

… there have been incredible and probably illegal uses of the Internet to overwhelm elected officials with faux communications that reek of Google-style misinformation and central planning in the hive mind of the Googleplex.

We saw this again with the Article 13 vote in Europe last week with what clearly seems to be a Google-backed attack on the European Parliament for the purpose of policy intimidation. That?s right?an American-based multinational corporation is trying to intimidate the very same European government that is currently investigating them for anticompetitive behavior and is staring down a multi-billion dollar fine.

Vindictive much?

Apparently, the idea that the public might actually speak out when they realize that a terribly written proposal would lead to massive censorship of the internet is unfathomable to him.

And let’s be clear here. This entire claim doesn’t even pass the slightest laugh test. Google already complies with almost everything in Article 13. The whole point of Article 13 is to try to force nearly every site that hosts user content to install a ContendID like system. Google already has ContentID. Indeed, if anything, Article 13 would cement Google’s dominant position by making it nearly impossible for newer, more innovative startups to enter the space without spending the tens of millions of dollars Google spent on ContentID.

The idea that Google would lead some “fake” public protest against Article 13 is ludicrous. But, this Google Derangement Syndrome seems impossible for those in the RIAA set to get rid of. I’ve mentioned before that just weeks after a massive public protest of SOPA stopped that bill from becoming law, I ended up at a dinner with an RIAA board member, who simply refused to believe that the public even cared one bit about SOPA/PIPA and insisted that the only reason the bill failed was because Google stepped up (in reality, Google was much slower than a ton of internet startups to recognize the threat of SOPA).

Indeed, this same derangement could be found in the tweets of former RIAA top exec Neil Turkewitz, who hilariously responded to the impact of widespread public protests by insisting that it was obviously not the will of the people stating:

Does anyone think the people have spoken? I doubt it. Democracy, freedom of expression & common sense were upended by allowing a Pirate & a fantastically large company w/ something to gain to define the terms of our freedom. A freedom w/o justice. An infant?s version of freedom.

Got that? Democracy, freedom of expression and common sense were upended… by people speaking out about the massive problems with Article 13. This is especially hilarious coming from Turkewitz, who worked for three decades on policy issues for the RIAA, at a time when the RIAA did so much of its policy awfulness by hiding it away from the public, in particular by sneaking awful ideas into secretly negotiated trade agreements, and then turning around and demanding that democratically elected legislatures write laws to match what he helped the RIAA sneak into those agreements. Or how about the will of “the people” when Turkewitz’s RIAA colleague, just months before taking his job with the RIAA literally snuck four words overnight into a bill that would help the RIAA member labels take away rights from all of its artists. Was that “the will of the people”?

The recording industry spent decades actively subverting the will of the people at every turn. Even though the Constitutional mandate for copyright be that it promote the progress of science and learning by providing more material into the public domain, the RIAA spent decades — usually in secret — pushing and changing the law to turn it into a welfare system for record labels. For decades, “the public” wasn’t even aware of what was happening, in part because copyright directly touched their lives so little.

That changed with the advent of the internet, and the fact that copyright and the internet don’t work all that well together. Now, these changes that the RIAA used to push through in a smokey backroom is likely to impact the tools and services that billions of people use to communicate every day. And the consequences of those changes will have a huge impact on them. So no one should be surprised when the public speaks out about this. It’s not a criminal conspiracy by Google. It’s the public actually caring about what the internet looks like and whether or not they’ll be allowed to speak without first getting permission and a license.

Filed Under: article 13, chris castle, conspiracy, copyright, neil turkewitz, progress, public interest
Companies: google

Has FBI Director Comey Created A 'Public Interest' Exception To Its Ban On Investigation Disclosures?

Failures

from the would-be-nice,-but-won't-happen dept

We noted this towards the end of our post on how the FBI is leaking like a sieve in revealing details about the investigation into Hillary Clinton’s emails — that Comey seemed to be handing reporters a perfect comeback to the bullshit response the FBI normally gives that it “won’t comment on ongoing investigations.” As the Intercept is now noting, Comey seems to be saying that there’s a “public interest” exception to that rule, though as of right now only he gets to decide what’s in the public interest:

Comey?s actions have raised lasting questions about when the public interest outweighs the current policy, and whether there should be a ?public interest? exception to the Justice Department?s secrecy rules.

In his July announcement, Comey said that ?given the importance of the matter, I think unusual transparency is in order.? Part of his goal was clearly to reassert the FBI?s independence from political pressure. ?No outside influence of any kind was brought to bear,? he said.

If there were a public interest exception, there are many other high-profile investigations that the Justice Department could be encouraged to discuss.

Of course, the partisan folks out there have made this whole thing hilarious. Back in July, the partisan supporters of Clinton argued that such a public interest exception made perfect sense — while the Trump supporters argued that this was an abomination and that Comey was “playing politics” in revealing information that he shouldn’t have been revealing. In the last week, however, it’s the Trump supporters who are suddenly big fans of the “public interest” exception to revealing details of an investigation, while the Clinton supporters are up in arms about “playing politics.” Anyone who argued that one was good and the other is bad is a hypocrite. The truth is that Comey was abusing his power both times as he’s done for years and years.

From a reporting standpoint, of course, journalists love that Comey is willing to reveal details (and others are willing to leak more after the fact). It provides lots of news to report on — and we, like others, are happy to report on that information. But from a general public policy standpoint, it’s a serious disaster. As Alex Emmons at the Intercept points out, there’s a good reason why we don’t want the FBI to comment about ongoing investigations:

There?s a reason that the Justice Department has nondisclosure rules about ongoing or closed investigations. Lots of things emerge in investigations that are not true, or do not amount to crimes. Disclosing those things can ruin reputations. So it is typically left to prosecutors to decide what accusations to make public, in the form of an indictment.

A public interest exception sounds like a good thing, but the reality is that it’ll be used selectively by law enforcement, and that just creates a huge mess (as seen from the partisan outcry during both moves by Comey).

Filed Under: disclosures, fbi, investigations, james comey, leaks, public interest, public interest exception

How The TPP Is Trouble: Public Interest Explicitly Tossed In Favor Of Corporate Interests

Politics

from the sad dept

Michael Geist is counting down the days to when the TPP can first be signed in the US (February 4th) by going through and highlighting problematic aspects of the agreement. He’s started with the simple fact that the TPP’s intellectual property section is explicitly designed to favor corporations over the public. We’ve obviously discussed some of this ourselves, such as the fact that the only reference to things like the public’s rights (such as fair use) is to recommend that countries consider them, but when it comes to stronger copyright and patents, the TPP requires them.

Geist goes a bit further, looking at the history, noting that in early drafts, a group of countries including Canada, New Zealand, Chile, Peru, Vietnam, Brunei, Malaysia, Singapore and Mexico initially all supported objectives that emphasized the public’s rights as well as corporations’. But, with the final version, basically all of that went out the window, and almost entirely because of the US striking a hard line in the negotiations (with some help from Japan, who joined the TPP process a bit later than others).

Below were the originally proposed “objectives”:

The objectives of this Chapter are:

• enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;??
• reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems; ??
• maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property; ??
• protect the ability of Parties to identify, promote access to and preserve the public domain;??
• ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;??
• promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.
• the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
• support each Party?s right to protect public health, including by facilitating timely access to affordable medicines.

There are some pretty good points in that list. I especially like ensuring that intellectual property does not, itself, become “barriers to legitimate trade.”

But, you’ll notice basically none of that in the final version. Instead, the only thing that survived was one that, you guessed it, focuses more on the benefits to companies, than to the public:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

It’s not a bad objective by any means, but it’s pretty naked without all the others listed above.

As Geist notes:

The objectives provision may not carry the same weight as positive obligations in the treaty, but they are important, reflecting the goals of the negotiating parties and providing a lens through which all other provisions can be interpreted. Canada and many other countries wanted to ensure that the lens promoted maintaining a balance between rights holders and users on all IP provisions. The exclusion from the objectives provision sets the tone for the IP chapter and highlights how user interests and the priorities of countries such as Canada were given limited weight within the final text.

All the more reason to question how this possibly benefits the public.

Filed Under: copyright, fair use, public domain, public interest, tpp