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Posted on Techdirt - 20 February 2018 @ 10:48am

Wired's Big Cover Story On Facebook Gets Key Legal Point Totally Backwards, Demonstrating Why CDA 230 Is Actually Important

from the bad-reporting dept

If you haven't read it yet, I highly recommend reading the latest Wired cover story by Nicholas Thompson and Fred Vogelstein, detailing the past two years at Facebook and how the company has struggled in coming to grips with the fact that their platform can be used by people to do great harm (such as sow discontent and influence elections). It's a good read that is deeply reported (by two excellent reporters), and has some great anecdotes, including the belief that an investigation by then Connecticut Attorney General Richard Blumenthal into Facebook a decade ago, was really an astroturfing campaign by MySpace:

Back in 2007, Facebook had come under criticism from 49 state attorneys general for failing to protect young Facebook users from sexual predators and inappropriate content. Concerned parents had written to Connecticut attorney general Richard Blumenthal, who opened an investigation, and to The New York Times, which published a story. But according to a former Facebook executive in a position to know, the company believed that many of the Facebook accounts and the predatory behavior the letters referenced were fakes, traceable to News Corp lawyers or others working for Murdoch, who owned Facebook’s biggest competitor, MySpace. “We traced the creation of the Facebook accounts to IP addresses at the Apple store a block away from the MySpace offices in Santa Monica,” the executive says. “Facebook then traced interactions with those accounts to News Corp lawyers. When it comes to Facebook, Murdoch has been playing every angle he can for a long time.”

That's a pretty amazing story, which certainly could be true. After all, just a few years later there was the famous NY Times article about how companies were courting state Attorneys General to attack their competitors (which later came up again, when the MPAA -- after reading that NY Times article -- decided to use that strategy to go after Google). And Blumenthal had a long history as Attorney General of grandstanding about tech companies.

But, for all the fascinating reporting in the piece, what's troubling is that Thompson and Vogelstein get some very basic facts wrong -- and, unfortunately, one of those basic facts is a core peg used to hold up the story. Specifically, the article incorrectly points to Section 230 of the Communications Decency Act as being a major hindrance to Facebook improving its platform. Here's how the law incorrectly described in a longer paragraph explaining why Facebook "ignored" the "problem" of "fake news" (scare quotes on purpose):

And then there was the ever-present issue of Section 230 of the 1996 Communications Decency Act. If the company started taking responsibility for fake news, it might have to take responsibility for a lot more. Facebook had plenty of reasons to keep its head in the sand.

That's... wrong. I mean, it's not just wrong by degree, it's flat out, totally and completely wrong. It's wrong to the point that you have to wonder if Wired's fact checkers decided to just skip it, even though it's a fundamental claim in the story.

Indeed, the whole point of CDA 230 is exactly the opposite of what the article claims. As you can read yourself, if you look at the law, it specifically encourages platforms to moderate the content they host by saying that the moderation choices they make do not impact their liability. This is the very core point of CDA 230:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

This is the "good samaritan clause" of the CDA 230 and it's encouraging platforms like Facebook to "take responsibility for fake news" by saying that no matter what choices it makes, it won't make Facebook liable for looking at the content. Changing CDA 230 as many people are trying to do right now is what would create incentives for Facebook to put its head in the sand.

And yet, Thompson and Vogelstein repeat this false claim:

But if anyone inside Facebook is unconvinced by religion, there is also Section 230 of the 1996 Communications Decency Act to recommend the idea. This is the section of US law that shelters internet intermediaries from liability for the content their users post. If Facebook were to start creating or editing content on its platform, it would risk losing that immunity—and it’s hard to imagine how Facebook could exist if it were liable for the many billion pieces of content a day that users post on its site.

This one is half right, but half misleading. It's true -- under the Roommates case -- that if Facebook creates content that breaks the law, then it remains liable for that content. But not for editing or moderating content on its platform as that sentence implies.

Indeed, this is a big part of the problem we have with the ongoing debates around CDA 230. So many people insist that CDA 230 incentivizes platforms to "do nothing" or "look the other way" or, as Wired erroneously reports, to "put their head in the sand." But that's not true at all. CDA 230 not only enables, but encourages, platforms to be more active moderators by making it clear that the choices they make concerning moderating content (outside the context of copyright -- which uses a whole different set of rules), don't create new liability for them. That's why so many platforms are trying so many different things (as we recently explored in our series of stories on content moderation by internet platforms).

What's really troubling about this is that people are going to use the Wired cover story as yet another argument for doing away with (or at least punching giant holes in) CDA 230. They'll argue that we need to make changes to encourage companies like Facebook not to ignore the bad behavior on their platform. But the real lesson of the story -- which should have come out if the reporting were more carefully done -- is that CDA 230 is what we need to encourage that behavior. The fact that Facebook is able to and is willing to change and experiment in response to increasing public pressure, is only so because CDA 230 gives the company that freedom to do so. Adding liability for wrong decisions is actually what would make the problem worse, and would encourage platforms like Facebook to do less.

It's tragic that in such a high profile, carefully reported story, a key part of it -- indeed, a part on which much of the story itself hinges -- is simply, factually, wrong.

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Posted on Techdirt - 16 February 2018 @ 2:43pm

DOJ Russia Indictment Again Highlights Why Internet Companies Can't Just Wave A Magic Wand To Make Bad Stuff Go Away

from the troll-troll-troll-troll dept

As you've certainly heard by now, earlier today the Justice Department announced that it had indicted thirteen Russian individuals and three Russian organizations for various crimes related to trying to influence the US election. You should read the full indictment if you haven't already. Not surprisingly it focuses on the infamous Internet Research Agency (IRA), which was the giant Russian online trolling operation that we've discussed going back to 2015.

While many are trying to position the indictment as a "significant" bit of news, I have to admit to being a bit underwhelmed. It really does not reveal much that wasn't already widely known. It's been widely reported that the Russians had interest in disrupting our democracy and sowing discord, including setting up and pushing competing rallies from different political sides, and generally stoking fires of distrust and anger in America. And... the indictment seems to repeat much of that which has already been reported. Furthermore, this indictment actually reminds me quite a bit of a similar indictment four years ago aginst various Chinese officials for "hacking" crimes against the US. As we noted then, indicting the Chinese -- who the US would never be able to arrest anyway -- just seemed to be a publicity stunt, that had the potential to come back to haunt the US. It kinda feels the same here.

What is interesting to me, however, is that the indictment also demonstrates why all the hand-wringing against Facebook, Twitter and Google seems kind of misplaced. For months we've been seeing big articles and Congressional hearings questioning why the platforms allowed the Russians to use their services as propaganda tools -- even getting the companies to recently send out (useless, confusing) announcements to people about whether or not they saw or reposted Russian troll propaganda. But what the indictment makes pretty clear, is that the Russians made it nearly impossible for an internet service to ferret them out. The money used was spread out among many different banks and laundered through various means to make it more difficult to trace back. And it details just how far the trolls went to appear to be Americans, including traveling to the US, posing as Americans online to talk to actual US activists and push them in certain directions. And, of course, confusing the internet platforms into thinking they were Americans:

ORGANIZATION employees, referred to as "specialists," were tasked to create social media accounts that appeared to be operated by U.S. persons. The Specialists were divided into day-shift and night-shift hours and instructed to make posts in accordance with the appropriate U.S. time zone. The ORGANIZATION also circulated lists of U.S. holidays so that specialists could develop and post appropriate account activity. Specialists were instructed to write about topics germane to the United States such as U.S. foreign policy and U.S. economic issues. Specialists were directed to create "political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements."

Defendants and their co-conspirators also created thematic group pages on social media sites, particularly on the social media platforms Facebook and Instagram. ORGANIZATION- controlled pages addressed a range of issues, including: immigration (with group names including "Secured Borders"); the Black Lives Matter movement (with group names including "Blacktivist"); religion (with group names including "United Muslims of America" and "Army of Jesus"); and certain geographic regions within the United States (with group names including "South United" and "Heart of Texas"). By 2016, the size of many groups had grown to hundreds of thousands of online followers.

Most of those groups (if not all?) had previously been revealed by the platforms or by news reports. But the extent to which the Russians went to cover their trails is more revealing.

To hide their Russian identities and ORGANIZATION affiliation, Defendants and their co- conspirators--particularly POLOZOV and the IT department--purchased space on computer servers located inside the United States in order to set up virtual private networks Defendants and their co-conspirators connected from Russia to the U.S.-based infrastructure by way of these VPNs and conducted activity inside the United States? including accessing online social media accounts, opening new accounts, and communicating with real U.S. persons--while masking the Russian origin and control of the activity.

Defendants and their co-conspirators also registered and controlled hundreds of web-based email accounts hosted by U.S. email providers under false names so as to appear to be U.S. persons and groups. From these accounts, Defendants and their co-conspirators registered or linked to online social media accounts in order to monitor them; posed as U.S. persons when requesting assistance from real U.S. persons; contacted media outlets in order to promote activities inside the United States; and conducted other operations, such as those set forth below.

Use of Stolen U.S. Identities

In or around 2016, Defendants and their co-conspirators also used, possessed, and transferred, without lawful authority, the social security numbers and dates of birth of real U.S. persons without those persons' knowledge or consent. Using these means of identification, Defendants and their co-conspirators opened accounts at PayPal, a digital payment service provider; created false means of identification, including fake driver's licenses; and posted on social media accounts using the identities of these U.S. victims. Defendants and their co-conspirators also obtained, and attempted to obtain, false identification documents to use as proof of identity in connection with maintaining accounts and purchasing advertisements on social media sites.

This was not just some run-of-the-mill "pretend to be Americans," this was a hugely involved process to make it very difficult to determine that they were not Americans.

I've seen some people online claiming that this shows why the platforms have to take more responsibility for who is using their platform:

But my read on it is exactly the opposite. It shows just how ridiculous such a demand is. Would any of us be using these various services if we were all forced to go through a detailed background check just to use a social media platform? That seems excessive and silly. Part of the reason why these platforms are so useful and powerful in the first place is that they're available for nearly everyone to use with little hurdles in the way. That obviously has negative consequences -- in the form of trolling and scams and malicious behavior -- but there's also a ton of really good stuff that has come out of it.

We should be pretty cautious before we throw away all of the value of these platforms just because some people used them for nefarious purposes. People are always going to be able to hide their true intentions from the various platforms -- and the response to that shouldn't be "put more blame on the platforms" -- it should be a recognition of why it's so silly to blame the tools and services for the actions of the users.

Yes, we should be concerned about foreign attempts to influence our elections (while noting that the US, itself, has a long history of doing the same damn thing in other countries -- so this is a bit of blowback). But blaming the technology platforms the Russians used seems to be totally missing the point of what happened -- and risks making the internet much worse for everyone else.

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Posted on Techdirt - 16 February 2018 @ 10:41am

Everyone Creates: New Empirical Data Shows Just How Much The Internet Has Enabled A New Creative Economy

from the it's-not-tech-v.-hollywood dept

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

Just last week we announced our new site EveryoneCreates.org, in which we showcase stories of people who rely on the open internet and various internet platforms to create artwork of all kinds -- from music to books to movies to photographs and more. It appears that we're not the only ones to be thinking about this. The Re:Create coalition has just now released some fantastic economic research about the large and growing population of people who use internet platforms to create and to make money from their creations. It fits right in with the point that we made, that contrary to the RIAA, MPAA and its front groups like "Creative Future," the internet is not harming creators, it's enabling them by the millions (and allowing them to make much more money as well).

Indeed, the report almost certainly significantly undercounts the number of content creators making money on the internet these days, as it only explores nine platforms: Amazon Publishing, eBay, Etsy, Instagram, Shapeways, Tumblr, Twitch, WordPress and YouTube. Those are all great, and probably cover a decent subset of creators and how they make money -- but it leaves off tons of others, including Kickstarter, Patreon, IndieGogo, Wattpad, Bandcamp, Apple, Spotify and many other platforms that have increasingly become central to the way in which creators make their money. Still, even with this smaller subset of creative platforms, the study is impressive.

14.8 million people used those platforms to earn approximately $5.9 billion in 2016.

Let's repeat that. The internet -- which some legacy entertainment types keep insisting are "killing" content creators and making it "impossible" to make money -- enabled nearly 15 million people to earn nearly $6 billion in 2016. And, again, that doesn't even include things like Kickstarter or Patreon (in 2016 alone, Kickstarter had $580 million in pledges...). In short, just as we've been saying for years, while those who rely on the old legacy gatekeeper system of waiting until you're "discovered" by a label/studio/publisher and then hoping they'll do all the work to make you rich and famous, maybe that's a bit more difficult these days. But, for actual creators, today is an astounding, unprecedented period of opportunity.

This does not mean that everyone discussed here is making a full-time living. Indeed, the report notes clearly that many people are using these platforms to supplement their revenue. But they're still creating and they're still making money off of their creations -- something that would have been nearly impossible not too long ago. And, just as the report likely undercounts the size of this economy due to missing some key platforms, it also misses additional revenue streams even related to the platforms it did count:

It is impossible to determine an average income for members of the new creative economy, because earnings vary so widely for each platform. As previously stated, this analysis includes only a single source of income for each of the nine platforms. For instance, based on the current data, we include a YouTube star’s earnings from YouTube but not revenues as influencers or advertisements on other social media platforms.

Also interesting is how the report found that creators are spread all over the US. While California, New York and Texas have the most creators, even those with the "smallest" numbers of creators (Wyoming and the Dakotas) still had tens of thousands of people using these platforms to make money. And, yes, in case you're wondering, the study excluded big time stars like Kim Kardashian using platforms like Instagram to make money, focusing instead on truly independent creators.

This is especially important, as it's coming at a time when the RIAA, MPAA and their friends continue their nonsensical claims that these very same internet platforms are somehow "harming" content creators, and that laws need to change to make it harder for everyday people to use these platforms to express their artwork and to make money off of it. It's almost as if those legacy gatekeepers don't like the competition or the fact that people are realizing they don't need to work with a gatekeeper to create and to make money these days.

So, once again, it's time to dump the ridiculous myth of "tech v. content." That's not true at all. As this report shows, these tech platforms have enabled many millions of people to earn billions of dollars that's only possible because they're open platforms that get past the old gatekeeper system.

Share your story at EveryoneCreates.org to let policymakers know how important an open internet and fair use is to your own creativity.

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Posted on Techdirt - 16 February 2018 @ 9:24am

Terrible Copyright Ruling Over An Embedded Tweet Undermines Key Concept Of How The Internet Works

from the this-is-bad dept

Just earlier this week we noted that a judge easily laughed Playboy's silly lawsuit out of court because merely linking to infringing content is not infringing itself. But a judge in New York, Judge Katherine Forrest, has ruled on a different case in a manner that is quite concerning, which goes against many other court rulings, and basically puts some fundamental concepts of how the internet works at risk. It's pretty bad. In short, she has ruled that merely embedding content from another site can be deemed infringing even if the new site is not hosting the content at all. This is wrong legally and technically, and hopefully this ruling will get overturned on appeal. But let's dig into the details.

The case involved a photographer, Justin Goldman, who took a photograph of quarterback Tom Brady on Snapchat. Somehow that image made its way from Snapchat to Reddit to Twitter. The photo went a bit viral, and a bunch of news organizations used Twitter's embed feature to show the tweet and the image. Goldman sued basically all the news publications that embedded the tweet -- including Breitbart, Vox, Yahoo, Gannett, the Boston Globe, Time and more. Now, multiple different courts around the country have said why this should not be seen as infringing by these publications. It's generally referred to as "the server test" -- in which to be direct infringement, you have to host the image yourself. This makes sense at both a technical and legal level because "embedding" an image is no different technically than linking to an image. It is literally the same thing -- you put in a piece of code that points the end user's computer to an image. The server at no point hosts or displays the image -- it is only the end user's computer. In the 9th Circuit, the various Perfect 10 cases have established the server test, and other courts have adopted it or similar concepts. In the 7th Circuit there was the famous Flavaworks case, where Judge Posner seemed almost annoyed that anyone could think that merely embedding infringing content could be deemed infringing.

But Judge Forrest has decided to carve a new path on this issue in Southern New York, teeing up (hopefully) an opportunity for the 2nd Circuit to tell her why she's wrong. Even more troubling, she actually relies on the awful Aereo "looks like a duck" test to come to this conclusion. Let's dig into her reasoning. The key issue here is the exclusive right to "display" a work under copyright, known as 106(5) under copyright law.

It's also important to note that this ruling is just at the summary judgment stage, and doesn't mean that the various publications will be found to have infringed -- it just means that the court is letting the case go forward, meaning that the various publications might now raise various defenses as to why their embedding is not infringing. It's still concerning, because given the "server test" in other jurisdictions, such a case would easily be tossed on a motion to dismiss or summary judgment because there's no legitimate claim of copyright infringement if no direct infringement can be shown. But here, Judge Forrest argues that because an embed leads an end user's computer to display an image, that somehow makes the publisher who included the embed code possibly liable for infringing the display right. Because it looks like a duck.

This is not a new issue by any means. I found a story from over a decade ago in which I warned that we'd see a lot more stupid lawsuits about embedding content from platforms, and have to admit I'm a bit surprised we haven't seen more. The reason that's the case is almost certainly because of the reliance of many courts on the server test, leading many to realize such an argument is a non-starter. Until now.

Forrest basically says that even though the image never touches the publisher's server, and the only thing the publisher is doing is linking to an image in a manner that makes the end-user's browser grab that image from another location and display it, it still counts as infringement -- because of the Aereo ruling. If you don't recall, Aereo involved a creative (if technically stupid) method for streaming over-the-air broadcast TV to users by setting up many local antennas that were legally allowed to receive the signals, and then transmitting them over the internet (which is also legal). But, the Supreme Court came up with a brand new test for why that's not allowed -- which we've called the "looks like a duck" test. The ruling found that because Aereo kinda looked like cable to the end user, the technical rigamarole in the background to make it legal simply doesn't matter -- all that matters is how things looked to the end user. Forrest argues the same is true here:

Moreover, though the Supreme Court has only weighed in obliquely on the issue, its language in Aereo is instructive. At heart, the Court’s holding eschewed the notion that Aereo should be absolved of liability based upon purely technical distinctions—in the end, Aereo was held to have transmitted the performances, despite its argument that it was the user clicking a button, and not any volitional act of Aereo itself, that did the performing. The language the Court used there to describe invisible technological details applies equally well here: “This difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into a ‘copy shop that provides patrons with a library card.’”

We were worried about the wider impact of the Aereo "duck" test -- and people told us it wasn't that big a deal. Indeed, until this ruling, Aereo hasn't been (successfully) cited very often. Many thought that the very specific nature of Aereo might limit that precedent to a very specific situation involving cable TV. This ruling suggests that the silly "duck" test may be spreading. And that's bad, because it's based on ignoring what's actually happening at the technological level, in which the technology may be designed specifically to not violate any of the exclusive rights of copyright law.

Also, it should worry people greatly that courts are using this "we don't care about what's actually happening, we just care what it looks like" standard for judging infringement. Because to infringe on a copyright requires a very specific set of facts. And here (as with Aereo) the court is saying "we don't care about whether or not it actually violates one of the exclusive rights granted under copyright, we only care if it looks like it infringes." That's... a huge change in the law, and it's not at all how copyright law has been judged in the past. It can and will be used to hamstring, limit, or destroy all sorts of unique and useful technological innovations.

Forrest also tries to distinguish this ruling from the Perfect 10 cases and the Flava Works case -- even admitting that other 2nd circuit courts have used the server test. But, she says, they were all different -- doing things like only using the server test for the distribution right, but not the display right, or not really endorsing the server test and ruling on other reasons.

Forrest also points to a trademark case that involved an embedded image which was found to be infringing -- but that's entirely different. The rules for trademark infringement are completely different than the exclusive rights related to copyright. With trademark, it's not as specific, and the use of someone else's logo broadly (as happened in the case cited) could easily be infringing on the trademark, but that doesn't get to the copyright question which involves much more carefully limited rights.

But, most troulbing of all, Forrest argues that the server test... is just wrong:

The Court declines defendants’ invitation to apply Perfect 10’s Server Test for two reasons. First, this Court is skeptical that Perfect 10 correctly interprets the display right of the Copyright Act. As stated above, this Court finds no indication in the text or legislative history of the Act that possessing a copy of an infringing image is a prerequisite to displaying it. The Ninth Circuit’s analysis hinged, however, on making a “copy” of the image to be displayed—which copy would be stored on the server. It stated that its holding did not “erroneously collapse the display right in section 106(5) into the reproduction right in 106(1).” Perfect 10 II, 508 F.3d at 1161. But indeed, that appears to be exactly what was done.

The Copyright Act, however, provides several clues that this is not what was intended. In several distinct parts of the Act, it contemplates infringers who would not be in possession of copies—for example in Section 110(5)(A) which exempts “small commercial establishments whose proprietors merely bring onto their premises standard radio or television equipment and turn it on for their customer’s enjoyment” from liability. H.R. Rep. No. 94-1476 at 87 (1976). That these establishments require an exemption, despite the fact that to turn on the radio or television is not to make or store a copy, is strong evidence that a copy need not be made in order to display an image.

Except... that's still very different. That's still a case where the "small commercial establishments" are showing the work. In this case -- and the very reason why the server test is so important -- the content in question is never on the publisher's premises or server. It only appears on the end user's browser, because that browser goes and fetches it.

Even more bizarre, Forrest argues that Perfect 10 and the server test are different because the image is displayed on the end user's computer:

In addition, the role of the user was paramount in the Perfect 10 case—the district court found that users who view the full-size images “after clicking on one of the thumbnails” are “engaged in a direct connection with third-party websites, which are themselves responsible for transferring content.” Perfect 10 I, 416 F. Supp. 2d at 843.

In this Court’s view, these distinctions are critical.

While this doesn't involve the end user "clicking" first to get the display, it's really no different. It is the end user who has the allegedly infringing content displayed on their computer, not the publisher. A direct connection is made between the end user and the hosting provider (in this case Twitter). The publisher never touches the actual content. Yet, Forrest argues that they can be direct infringers.

That's... wrong.

Despite the fact that EFF and others warned the court that this ruling would would massively upset the way the internet works, Forrest doesn't seem to believe them (or care)... because maybe fair use will protect people.

The Court does not view the results of its decision as having such dire consequences. Certainly, given a number as of yet unresolved strong defenses to liability separate from this issue, numerous viable claims should not follow.

In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.

That's... also wrong. Yes, publishers may be protected by fair use or other defenses. But fair use is much harder to get a ruling on at an early (summary judgment) stage in a case (a few courts are starting to allow this, but it's not all that common). Having the server test be good law would prevent a flood of these kinds of cases from being filed. Without it, people can troll media sites that embed tweets and go after them, leading to long and costly litigation, even if they have strong fair use defenses. Also, the reference above to releasing the image "into the public domain" is nonsensical. No one is arguing that the image was in the public domain. It is clearly covered by copyright.

Given what a total and complete mess this ruling will cause on the internet should it stand, I fully expect a robust appeal. The 2nd circuit can be a mixed bag on copyright, but often does a pretty good job in the end. One hopes that the 2nd circuit reverses this ruling, endorses the server test, and keeps the internet working as it was designed -- where embedding and linking to content doesn't magically make one liable for infringement.

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Posted on Techdirt - 16 February 2018 @ 3:18am

Top ICE Lawyer Accused Of Identity Fraud Against Detained Immigrants

from the such-a-lovely-organization dept

For many, many years we've questioned the bizarre lawless nature of ICE -- Immigration and Customs Enforcement -- going back to the days when it was illegally seizing blogs, based on false claims of copyright infringement. We questioned what ICE had to do with censoring blogs in the first place. Of course, in the last year, ICE has been getting a lot more negative attention for something that is clearly under its purview: enforcement of immigration laws. Specifically, ICE has been almost gleefully demonstrating how they are thuggish bullies who are eager to deport as many people as possible. It's disgusting and inhumane -- and if you're going to be one of those people who pop up in our comments to say something ignorant about how if someone is here illegally they have no rights and should be booted as quickly as possible, go somewhere else to spout your nonsense. Also, seriously: take stock of your own priorities and look deeply at why you are so focused on destroying the lives of people who are almost certainly less well off and less privileged than you are, and who are seeking a better way of life.

But ICE's violent, gleeful thuggery seems to come easy to the organization -- and thus it should be little surprise that one of ICE's top lawyers has been charged with identity fraud and wire fraud in trying to use the identities of at least seven immigrants who were being processed by ICE. The indictment against Raphael Sanchez, the chief counsel for ICE in Seattle is quite a read.

Beginning in or about October, 2013, and continuing until on or about October 25, 2017, in the Western District of Washington, the defendant,


devised and intended to devise a scheme and artifice to defraud financial institutions, including American Express Company, Bank of America Corporation, Capital One Financial Corporation, Citibank, Discover Financial Services, and JPMorgan Chase Co., by using the personally identifying information of seven aliens in various stages of immigration proceedings with the United States Immigrations and Customs Enforcement to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, and in doing so, transmitted and caused to be transmitted by means of wire communications in interstate or foreign commerce, writings, signals, and email communications for the purpose of executing such scheme and artifice to defraud; including but not limited to the following email "that SANCHEZ caused to be sent via interstate wires:

April 18, 2016: Email message sent from Raphael.Sanchez@ice.dhs.gov to Raphael.Sanchez@ice.dhs.gov and Raphael_sanchez@yahoo.com, containing a Puget Sound Energy bill addressed to R.H. for service at 3516 South Webster Street #A Seattle, Washington, and an image of a United States permanent resident card and the biographical page of a Chinese passport issued to R.H., originating in Washington and utilizing email servers in West Virginia and Mississippi.

That's the wire fraud part. The identity fraud part includes:

On or about July 5, 2016, in the Western District of Washington, the defendant,


did knowingly transfer, possess, and use, without lawful authority, a means of identification of another person, including the name, Social Security number, and birth date of R.H., a real person, during and in relation to a felony violation enumerated in 18 U.S.C. § 1028A(c), to wit, wire fraud in violation of 18 U.S.C. § 1343, as charged in Count One of this Information, in violation of 18 § U.S.C. 1028A(a)(1). .

I assume as the case against Sanchez moves forward, more details will come out about what exactly happened here. But, remember, this is at the very same time as ICE is asking to be reclassified from a law enforcement agency to an intelligence agency, giving it much greater access to surveillance data -- without a warrant. Just imagine the kinds of identity fraud ICE lawyers could pull off with that access....

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Posted on Techdirt - 15 February 2018 @ 1:34pm

Court Shakes Off Dumb Copyright Lawsuit Against Taylor Swift

from the lawyers-gonna-lawyer,-judges-gonna-judge dept

For an industry that talks up how important copyright law is, it's fairly astounding how frequently there are really dumb lawsuits filed between musicians. Lately, because of the ridiculous "Blurred Lines" verdict, there have been tons of lawsuits filed over "sounds like" songs, or even "inspired by" songs, as lawyers (and some musicians) see a chance to cash in on the actual success of others. But we've also seen a bunch of really dumb lawsuits filed over the use of similar phrases. A few years ago there was the case where Rick Ross sued LMFAO because they had the line "Everyday I'm shufflin'" in a song that he claimed was infringing his "Everyday I'm hustlin'." The court was not impressed.

Last year a similar case was filed (which I'd meant to write about when it was filed, but a million other things got in the way), in which Sean Hall sued Taylor Swift claiming that her lyrics in "Shake it Off" were similar to a song he wrote called "Playas Gon' Play." The songs themselves were not similar, but both used lines about how "playas gonna play" and "haters gonna hate" (though not even exactly in the same way). Thankfully, once again, the court hearing the case is not at all impressed:

The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection. Accordingly, if there was copying, it was only of unprotected elements of Playas Gon’ Play.

This is pretty core, basic copyright 101 stuff. Copyright does not attach to short phrases that don't have any originality or creativity. Indeed, while the judge, Michael Fitzgerald, will allow Hall to try again with an amended complaint, he makes it clear that he sees little likelihood of success and hints strongly that trying again could lead to sanctions against the lawyer:

While the Court is extremely skeptical that Plaintiffs will – in a manner consistent with Rule 11 – be able to rehabilitate their copyright infringement claim in an amended complaint, out of an abundance of forbearance it will give Plaintiffs a single opportunity to try. Any future dismissal will be without leave to amend.

The mention of "Rule 11" is significant, because that's the rule that establishes how lawyers are expected to act in court, and allows for sanctioning of lawyers who don't follow it. Saying explicitly that the court doesn't see how Hall's lawyers can be "consistent with Rule 11" in any refiling is basically saying, "Not only do I not think you have a case, this case is so dumb that you lawyers may have to pay up for filing such a frivolous lawsuit."

And that doesn't even touch on the fact that with copyright cases, it's much easier to get legal fees paid for filing silly lawsuits. Even if Rule 11 isn't used against the lawyers, the court could still order Hall to pay Swift's legal fees for this silly case. Indeed, as the ruling points out in great detail, this is a very silly case.

As reflected in Defendants’ RJN, and as Plaintiffs acknowledge, by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters. Although Plaintiffs recognize as much, they allege that they “originated the linguistic combination of playas/players playing along with hatas/haters hating…” .... Plaintiffs explain that the plethora of prior works that incorporated “the terms ‘playa’ and hater together all revolve about the concept of ‘playa haters’” – a “playa” being “one who is successful at courting women,” and a “playa hater” being “one who is notably jealous of the ‘playas’” success.” .... Plaintiffs explain that Playas Gon’ Play “used the terms in the context of a third party, the narrator of a song who is neither a ‘playa’ nor a hater, stating that other people will do what they will and positively affirming that they won’t let the judgment of others affect them.”...

The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases “playas … gonna play” or “haters … gonna hate,” standing on their own, no more creative than “runners gonna run,” “drummers gonna drum,” or “swimmers gonna swim.” Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of “playas, they gonna play” and “haters, they gonna hate” is sufficiently creative to warrant copyright protection. ...

“It is true, of course, that a combination of unprotectable elements may qualify for copyright protection… But it is not true that any combination of unprotectable elements is eligible for copyright protection… [A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Satava, 323 F.3d at 811 (internal citations omitted; emphasis in original).

Looking at this case from a combination-of-unprotected-elements perspective, Plaintiffs’ combination of “playas, they gonna play” and “haters, they gonna hate” – two elements that would not have been subject to copyright protection on their own – is not entitled to protection. See id. at 812 (“The combination of unprotectable elements in Satava’s sculpture falls short of this standard. The selection of clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection.”); Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003) (“Lamps Plus’s mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work as required by § 101 [of the Copyright Act].”). Two unprotectable elements that, given pop culture at the time, were inextricably intertwined with one another, is not enough.

And the court concludes, again, with a warning that refiling an amended complaint is risky, as the court has trouble seeing how there's any chance of success:

In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act. In light of the fact that the Court seemingly “has before it all that is necessary to make a comparison of the works in question,” Peter F. Gaito Architecture, 602 F.3d at 65, the Court is inclined to grant the Motion without leave to amend. However, out of an abundance of caution, the Court will allow Plaintiffs one opportunity to amend, just in case there are more similarities between Playas Gon’ Play and Shake it Off than Plaintiffs have alleged thus far (which Plaintiffs’ counsel did not suggest at the hearing). If there are not, the Court discourages actual amendment. The more efficient course would be for Plaintiffs to consent to judgment being entered against them so that they may pursue an appeal if they believe that is appropriate.

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Posted on Techdirt - 15 February 2018 @ 9:33am

FBI Director Still Won't Say Which Encryption Experts Are Advising Him On His Bizarre Approach To Encryption

from the perhaps-there's-a-reason-he-won't-say... dept

For the past few months, we've talked about how FBI Director Chris Wray has more or less picked up where his predecessor, James Comey, left off when it came to the question of encryption and backdoors. Using a contextless, meaningless count of encrypted seized phones, Wray insists that not being able to get into any phone the FBI wants to get into is an "urgent public safety issue."

Of course, as basically every security expert has noted, the reverse is true. Weakening encryption in the manner that Wray is suggesting would create a much, much, much bigger safety issue in making us all less safe. Hell, even the FBI used to recommend strong encryption as a method to protect public safety.

Last month, we wrote about a letter sent by Senator Ron Wyden to Wray, simply asking him to list out the names of encryption experts that he had spoken to in coming to his conclusion that it was possible to create backdoors to encryption without putting everyone at risk.

I would like to learn more about how you arrived at and justify this ill-informed policy proposal. Please provide me with a list of the cryptographers with whom you've personally discussed this topic since our July 2017 meeting and specifically identify those experts who advised you that companies can feasibly design government access features into their products without weakening cybersecurity. Please provide this information by February 23, 2018.

Technically, Wray still has a week or so to answer, but earlier this week during an open Senate hearing involving the heads of various law enforcement and intelligence agencies, Wyden asked Wray when he might get that list and Wray sidestepped the question entirely, other than saying he'd discuss it later (in a closed session):

If you can't see that, here's my quick transcript (though I do recommend watching the video just to see the smartass smirk on Wray's face through much of it).

Wyden: On encryption. Director Wray, as you know, this isn't a surprise because I indicated, I would ask you about this. You have essentially indicated that companies should be making their products with backdoors in order to allow you all to do your job. And we all want you to protect Americans and at the same time, sometimes there are these policies that make us less safe and give up our liberties. And that's what I think we get with what you all are advocating which is weak encryption. Now this is a pretty technical area, as you and I have talked about it. And there's a field known as cryptography. I don't pretend to be an expert on it. But I think there is a clear consensus among experts in the field against your position to weaken strong encryption. So I have asked you for a list of the experts that you have consulted. I haven't been able to get it. Can you give me a date this afternoon when you will give me... this morning, a sense of when we will be told who are these people who are advising you to pursue this route. Because I don't know of anybody who is respected in this field who is advising that it is a good idea to adopt your position to weaken strong encryption. So can I get that list?

Wray: I would be happy to talk more about this topic this afternoon. My position is not that we should weaken encryption. My position is that we should be working together -- the government and the private sector -- to try to find a solution that balances both concerns.

Wyden: I'm on the program for working together. I just think we need to be driven by objective facts, and the position you all are taking is out of sync with what all the experts in the field are saying and I'd just like to know who you all have been consulting, and we'll talk more about it this afternoon.

So, a few points on this. First, Wray doesn't answer the actual question of when he'll be giving Wyden a list, but rather suggests he'll discuss this topic in the closed session. But the question of when he'll be delivering his list of experts he's consulted shouldn't be a classified piece of information. It's just a date. Second, Wray immediately misrepresents the issue, by saying he's not asking to weaken encryption. Because he has to realize by now that that's exactly what he's asking to do. If he doesn't recognize that then it's clear he doesn't understand the first thing about how encryption actually works. Third, he's incorrectly talking about "balancing both concerns." But there's no balancing question here. It is not a "balance" between "security" and "civil liberties" as some keep trying to make it out to be. This is a concern between good security and bad security that makes everyone less safe (oh, and also has the potential to violate civil liberties).

It does not inspire confidence to have Wray have trouble answering such a basic question and then totally misrepresent how this all works, even in his two sentence answer.

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Posted on Techdirt - 14 February 2018 @ 2:28pm

Judge Dismisses Playboy's Dumb Copyright Lawsuit Against BoingBoing

from the with-leave-to-amend dept

Well, that was incredibly quick. The district court judge hearing the case that Playboy filed against BoingBoing back in November has already dismissed it, though without prejudice, leaving it open for Playboy to try again. The judge noted that, given the facts before the court so far, it wasn't even necessary to hold a hearing, since BoingBoing was so clearly in the right and Playboy so clearly had no case. While the ruling does note that Playboy and its legal team can try again, it warns them that it's hard to see how there's a case here:

The court will grant defendant’s Motion and dismiss plaintiff’s First Amended Complaint... with leave to amend. In preparing the Second Amended Complaint, plaintiff shall carefully evaluate the contentions set forth in defendant’s Motion. For example, the court is skeptical that plaintiff has sufficiently alleged facts to support either its inducement or material contribution theories of copyright infringement.... see Tarantino v. Gawker Media, LLC, 2014 WL 2434647, *3 (C.D. Cal. 2014) (“An allegation that a defendant merely provided the means to accomplish an infringing activity is insufficient to establish a claim for copyright infringement. Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.”) (internal citations omitted); Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 672 (9th Cir.), cert. denied, 138 S.Ct. 504 (2017) (“We have described the inducement theory as having four elements: (1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation.”) (internal quotation marks omitted).

It will be interesting to see what happens next. As we noted in our original post, the lawyers representing Playboy, Donger and Burroughs have been making every effort over the last year or so to move beyond their reputation as fabric copyright trolls, and seeking out opportunities for high profile, if silly, cases including "sounds like" music cases. While one of the two partners, Scott Burroughs, has busied himself over at Above the Law (who really should think more carefully about the lawyers they bring in as posters) to post increasingly silly things about copyright law -- including trying to argue that linking is infringing and the EFF is wrong to argue that it's not.

That article -- written about the same time that the BoingBoing lawsuit was filed -- looks particularly bad now that a court has rejected the same argument in a case in which Burroughs is listed as a lawyer for Playboy, and in which EFF helped write the Motion to Dismiss that said that Burroughs was wrong. Just days ago, another lawyer posting at Above the Law explained why Burroughs' own case had no chance (without mentioning Burroughs' own writings on the site).

I'm guessing that Playboy will file an amended complaint, though as we noted earlier, in copyright law, it's much easier to have legal fees awarded for filing frivolous cases, and as the quote above notes, the judge is "skeptical" that Playboy has any case at all.

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Posted on Techdirt - 14 February 2018 @ 9:20am

Smart Meter Company Landis+Gyr Now Using Copyright To Try To Hide Public Records

from the what-they-don't-want-you-to-see dept

Back in 2016 we wrote about how Landis+Gyr, a large multinational company owned by Toshiba, completely freaked out when it discovered that documents about its smart energy meters, which the city of Seattle had contracted to use, were subject to a FOIA request. As we noted, Landis+Gyr went legal and did so in perhaps the nuttiest way possible. First it demanded the documents be taken down from Muckrock -- the platform that makes it easy for journalists and others to file FOIA requests. Then it demanded that Muckrock reveal the details of anyone who might have seen the documents in question. It then sued Muckrock and somehow got a court to issue a temporary restraining order (TRO) against Muckrock for posting these public records.

Eventually, with help from EFF, Landis+Gyr agreed to a settlement that stated that these documents were (a) public records and (b) the company would no longer attempt to take down the copies that Muckrock had obtained. From the settlement agreement posted on the public docket in the case:

Plaintiffs agree that they will take no further action against Defendants Mocek, Muckrock.com, and Morisy with respect to two public records previously released by the City to Muckrock.com on behalf of Mocek and automatically published on MuckRock.com.

This all ended in the summer of 2016. And, indeed, you can still find the documents hosted on Muckrock's website today. Here is the Managed Services Report 2015 and the Security Overview. Even though Landis+Gyr went to court over this and then agreed via its settlement that (1) these were public records that (2) could be left online, the company apparently doesn't want you reading them.

Last week, we received a notice from DocumentCloud -- which we use to host various documents as part of our reporting efforts -- that it had received a DMCA notice from lawyer Heather McNay of Landis+Gyr, demanding that it take down the copies of those very same public records that we had uploaded as part of our reporting on this story. It seems fairly clear to us that our posting of these public records as part of our reporting and commentary on a dispute created by Landis+Gyr itself was quintessential fair use for news reporting. And, of course, there a number of court rulings in various locations noting that copyright law cannot be used to prohibit the copying of public records (notably, that case involves a very similar situation involving a public records request in Washington State).

Either way, given that Landis+Gyr has promised in its settlement with Muckrock not to take any actions at all against Muckrock for hosting these public records, we'll note the incredible futility of the company then sending DMCA notices targeting those same public records, and scratch our collective heads over what the company is thinking when all it's doing is reminding everyone that (1) these documents exist online and (2) apparently the company would prefer you not look at these public records about its own systems.

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Posted on Techdirt - 13 February 2018 @ 3:29pm

Cloudflare Gets An Easy, Quick And Complete Win Over Patent Troll

from the good-news dept

Last year, we wrote about how a relatively new patent trolling operation had pretty clearly picked the wrong target in suing internet infrastructure provider Cloudflare with a sketchy patent (US Patent 6,453,335 on "providing an internet third party data channel.") Cloudflare decided not only to fight the case, but to fight all of Blackbird's patents, crowdsourcing and funding searches into prior art on any patent held by Blackbird Technologies, and arguing that the company was engaging in questionable legal practices -- acting both as a patent holding company and a law firm, while sometimes pretending not to be a law firm (despite employing mostly lawyers) to avoid some serious ethics questions.

On Monday, Cloudflare received a fairly complete victory, with the judge easily dismissing the case and pointing out that the '335 patent was clearly invalid:

Abstract ideas are not patentable. The '335 patent is directed to the abstract idea of monitoring a data stream and modifying that data when a specific condition is identified.... The limitations in representative claims 1 and 18 "recite generic computer, network and Internet components, none of which is inventive by itself." ... Both claims describe a "processing device" that monitors a preexisting data stream between a server and a client for a specific condition and modifies that stream when that condition is present. But the patent makes clear the processing device can be generic hardware, such as a filter, router, or proxy, or generic software.

Dependent claims 8 and 24 identify a specific condition for the processing device to monitor: a data transmission rate below a set threshold. Identifying a specific condition narrows the scope of these claims. But this additional limitation is not inventive; it is simply a conventional application of the broader idea.... A patent that uses generic components can contain an inventive concept if those generic pieces are arranged in a "non-conventional and non-generic" way.... But the '335 patent does not attempt to patent a discrete and non-conventional means of monitoring and modifying a data stream. In fact, the claims make clear the processing device used to monitor and modify data can be nearly anything and can be placed nearly anywhere, so long as the processing device is not the server that originates the data stream. In other words, the patent attempts to monopolize the abstract idea of monitoring a preexisting data stream between a server and a client for a specific condition and modifying that stream when that condition is present.

Patent cases -- even ones that should be easy -- are pretty famous for forcing the defendant to go through a long and expensive process to conclude. Normally there are extensive back and forth and filings and hearings between the parties as the court determines just what the patents cover and what the defendants are alleged to have done. Here, however, Cloudflare made an early motion to dismiss based on the claim that the patent itself is clearly invalid under the Supreme Court's Alice ruling that abstract ideas are not patentable. The court found this so persuasive that it tossed the case and the patent at this early stage (and did so in just two quick pages).

Blackbird may appeal, but it's difficult to see any appeal getting very far either. And, given how Cloudflare is still asking for prior art on all of Blackbird's other patents, the company may be interested in getting as far away as possible from Cloudflare as quickly as possible. But, then again, no one said that the people who run patent trolling operations are very smart.

Either way, kudos to Cloudflare for hitting back hard and getting an early victory against patent troll Blackbird.

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Posted on Techdirt - 13 February 2018 @ 10:44am

How We Got To The Point That Hollywood Is Trying To Attack The Internet Via NAFTA

from the a-little-history-lesson dept

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

Last week we announced our new site EveryoneCreates.org, featuring stories from many different creators of music, books, movies and more about how important the internet and fair use have been to their creations. As we noted, the reason for the site is that the legacy copyright gatekeepers at the MPAA and the RIAA have been using the Trump-requested NAFTA renegotiations to try to undermine both fair use and internet safe harbors by positing a totally false narrative that the internet has somehow "harmed" content creators.

Yet, as we know, and as the stories from various artists show, nothing is further from the truth. For most artists and content creators, the internet has been a huge boon. It has helped them create new art, share it and distribute it to other people, build a fan base and connect with them, and make money selling either their work or related products and services. As we've discussed before, in the past, for most artists, if you did not find a giant gatekeeper to take you on, you were completely out of the market. There was very little "long tail" to be found in most creative industries, because you either were "chosen" by a gatekeeper or you went home and did something else. But the internet has changed that. It has allowed people to go directly to their audiences, or to partner with platforms that help anyone create, distribute, promote and monetize. Indeed, the internet has undoubtedly helped everyone reading this to create art -- whether for profit or just for fun. And if that's the case with you, please share your story.

But it is worth taking a step back and asking an even larger question: how the hell did we get here? How did we get to the point that the MPAA and the RIAA are using NAFTA negotiations to try to undermine the internet. Rest assured: there's a long, long history at play here, and it's important to learn about it. The idea that you can or should regulate the internet or intellectual property in trade agreements should seem strange to most people -- especially as most trade agreements these days are about increasing free trade by removing barriers to trade, and copyright by its very nature is mercantile-style trade protectionism that places artificial limits and costs on trade that might otherwise be cheaper.

An excellent history on this topic comes from the aptly named 2002 book Information Feudalism: Who Owns the Knowledge Economy by Peter Drahos and John Braithweaite. It tells the story of how a concerted effort by legacy copyright maximalist organizations laid the groundwork for making sure that copyrights and patents were always included in trade agreements, by getting them in as a key part of the World Trade Organization and by the creation of TRIPS -- Trade-Related Aspects of Intellectual Property Rights. The book details how the legacy industries turned "intellectual property" from a question of benefiting the public to a solely commercial arena of corporate ownership and trade.

Once that was in place, these same industries wasted little time in exploiting the reframing of issues around copyright and patents. Famously, the DMCA itself was created in this manner. The record labels and movie studios had a friend in the Clinton White House in Bruce Lehman, who wrote a white paper in 1995 requesting draconian changes to copyright law targeting the internet. However, he found little support for it in Congress. Five years ago, Lehman himself admitted that when Congress refused to act he did "an end-run around Congress" by going to Geneva and pushing for a trade agreement via the World Intellectual Property Organization (WIPO) which required DMCA-like copyright rules.

With that treaty in hand, Lehman and his Hollywood friends came back to Congress, insisting that our "international obligations" now required Congress to create and pass the DMCA, or we'd suddenly face all sorts of trade and diplomatic problems for failing to live up to those "international obligations" that they themselves had put into the trade agreement. Indeed, ever since then, nearly every international trade agreement has included some crazy provisions related to copyright and patents and other IP rights -- all designed to effectively launder these laws through the highly opaque international trade negotiation process, and then insist that legislatures in various countries simply must ratchet up their laws to meet those obligations.

Given all that, there's at least some irony in the fact that these same groups that forced the DMCA on Congress through an international trade agreement back in the mid-1990s are now trying to use a different trade agreement 20 years later to force changes to that very same law (and others). Once again, the process is opaque. And once again, the industry is well connected and represented on a variety of the "Industry Trade Advisory Committees" (ITACs), giving them much greater access to the details of the negotiations while the public is kept in the dark.

But the history here is clear. Moving copyright into trade agreements was a purposeful move, pushed for by legacy industries so they could promote their favored protectionist laws around the globe, in part by moving them away from being designed for the public's benefit and towards a world in which information and knowledge was considered to be privatized, owned, and locked up by default. It ignored the fact that, often, the public can benefit the most when information is open and widely shared. And, decades later, we're still dealing with the fallout from these bad decisions.

And that's why it's so important for policy makers to understand that it's complete hogwash to argue that the RIAA and MPAA are "representing artists" in trying to undermine the internet this way. Most artists recognize that the internet and various platforms are a key part of their ability to create, distribute, share, and support their artwork these days -- and they are not being represented at the NAFTA negotiating table.

Share your story at EveryoneCreates.org to let policymakers know how important an open internet and fair use is to your own creativity.

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Posted on Techdirt - 12 February 2018 @ 9:31am

Waymo And Uber's Settlement Is A Good Thing: Focus On Innovating, Not Litigating

from the took-too-long-already dept

Back in December, right before the Waymo/Uber trial was supposed to begin (before it got delayed due to an unexpected bombshell about withholding evidence that... never actually came up at the trial), I had a discussion with another reporter about the case, in which we each expressed our surprise that a settlement hadn't been worked out before going to trial. It seemed as though part of the case was really about the two companies really disliking each other, rather than there being a really strong legal case.

A year ago, when the case was filed, I expressed disappointment at seeing Google filing this kind of lawsuit. My concern was mainly over the patent part of the case (which were dropped pretty early on), and the fact that Google, historically, had shied away from suing competitors over patents, tending to mostly use them defensively. But I had concerns about the "trade secrets" parts of the case as well. While there does seem to be fairly clear evidence that Anthony Levandowski -- the ex-Google employee at the heart of the discussion -- did some sketchy things in the process of leaving Google, starting Otto, and quickly selling Otto to Uber, the case still felt a lot like a backdoor attempt to hold back employee mobility.

As we've discussed for many years, a huge part of the reason for the success of Silicon Valley in dominating the innovation world has to do with the ease of employee mobility. Repeated studies have shown that the fact that employees can switch jobs easily, or start their own companies easily, is a key factor in driving innovation forward. It's the sharing and interplay of ideas that allows the entire industry to tackle big problems. Individual firms may compete around those big breakthroughs, but it's the combined knowledge, ideas, and perspective sharing that results in the big breakthroughs.

And even though that's widely known, tech companies have an unfortunate history of trying to stop employees from going to competitors. While non-competes have been ruled out in California, a few years back there was a big scandal over tech companies having illegal handshake agreements not to poach employees from one another. It was a good thing to see the companies fined for such practices.

However, the latest move is to use "trade secrets" claims as way to effectively get the same thing done. The mere threat of lawsuits can stop companies from hiring employees, and can limit an employee's ability to find a new job somewhere else. That should concern us all.

However, in this lawsuit, everything was turned a bit upside down. Part of it was that there did appear to be some outrageous behavior by Levandowski. Part of it was that, frankly, there are few companies out there disliked as much as Uber. It does seem that if it were almost any other company on the planet, many more people would have been rooting against Google as the big incumbent suing a smaller competitor. But, in this case, many many people seemed to be rooting for Google out of a general dislike of Uber itself.

My own fear was that this general idea of "Uber = bad" combined with "Levandowski doing sketchy things" could lead to a bad ruling which would then be used to limit employee mobility in much more sympathetic settings. Thankfully, that seems unlikely to happen. As Sarah Jeong (who's coverage of this case was absolutely worth following) noted, despite all the rhetoric, it wasn't at all clear that Waymo proved its case. Lots of people wanted Google/Waymo to win for emotional reasons, but the legal evidence wasn't clearly there.

And now the case is over. As the trial was set to continue Friday morning, it was announced that the two parties had reached a settlement, in which Uber basically hands over a small chunk of equity to Waymo (less than Waymo first tried to get, but still significant). As Jeong notes in another article, both sides had ample reasons to settle -- but the best reason of all to settle is so that they can focus on just competing in the market, rather than the courtroom and in not setting bad and dangerous precedent concerning employee mobility in an industry where that's vital.

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Posted on Techdirt - 9 February 2018 @ 7:39pm

Twitter & Facebook Want You To Follow The Olympics... But Only If The IOC Gives Its Stamp Of Approval

from the what-the-fuck-twitter? dept

It is something of an unfortunate Techdirt tradition that every time the Olympics rolls around, we are alerted to some more nonsense by the organizations that put on the event -- mainly the International Olympic Committee (IOC) -- going out of their way to be completely censorial in the most obnoxious ways possible. And, even worse, watching as various governments and organizations bend to the IOC's will on no legal basis at all. In the past, this has included the IOC's ridiculous insistence on extra trademark rights that are not based on any actual laws. But, in the age of social media it's gotten even worse. The Olympics and Twitter have a very questionable relationship as the company Twitter has been all too willing to censor content on behalf of the Olympics, while the Olympic committees, such as the USOC, continue to believe merely mentioning the Olympics is magically trademark infringement.

So, it's only fitting that my first alert to the news that the Olympics are happening again was hearing how Washington Post reporter Ann Fifield, who covers North Korea for the paper, had her video of the unified Korean team taken off Twitter based on a bogus complaint by the IOC:

And Twitter complied even though the takedown is clearly bogus. Notice Fifield says that it is her video? The IOC has no copyright claim at all in the video, yet they filed a DMCA takedown over it. The copyright is not the IOC's and therefore the takedown is a form of copyfraud. Twitter should never have complied and shame on the company for doing so. Even more ridiculous: Twitter itself is running around telling people to "follow the Olympics on Twitter." Well, you know, more people might do that if you weren't taking down reporters' coverage of those very same Olympics.

Oh, and it appears that Facebook is even worse. They're pre-blocking the uploads of such videos:

This is fucked up and both the IOC and Facebook should be ashamed. The IOC can create rules for reporters and can expel them from the stadium if they break those rules, but there is simply no legal basis for them to demand such content be taken off social media, and Twitter and Facebook shouldn't help the IOC censor reporters.

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Posted on Techdirt - 8 February 2018 @ 9:26am

End Of An Era: Saying Goodbye To John Perry Barlow

from the pioneer dept

I was in a meeting yesterday, when the person I was meeting with mentioned that John Perry Barlow had died. While he had been sick for a while, and there had been warnings that the end might be near, it's still somewhat devastating to hear that he is gone. I had the pleasure of interacting with him both in person and online multiple times over the years, and each time was a joy. He was always, insightful, thoughtful and deeply empathetic.

I can't remember for sure, but I believe the last time I saw him in person was a few years back at a conference (I don't even recall what conference), where he was on a panel that had no moderator, and literally seconds before the panel was to begin, I was asked to moderate the panel with zero preparation. Of course, it was easy to get Barlow to talk, and to make it interesting, even without preparation. But that day the Grateful Dead's Bob Weir (for whom Barlow wrote many songs -- after meeting as roommates at boarding school) was in the audience -- and while the two were close, they disagreed on issues related to copyright, leading to a public debate between the two (even though Weir was not on the panel). It was fascinating to observe the discussion, in part because of the way in which Barlow approached it. Despite disagreeing strongly with Weir, the discussion was respectful, detailed and consistently insightful.

Lots of people are, quite understandably, pointing to Barlow's famous Declaration of the Independence of Cyberspace (which was published 22 years ago today). Barlow later admitted that he dashed most of that off in a bar during the World Economic Forum, without much thought. And that's why I'm going to separately suggest two other things by Barlow to read as well. The first was his Wired piece, The Economy of Ideas from 1994, the second year of Wired's existence, and where Barlow's wisdom was found in every issue. Despite being written almost a quarter of a century ago, The Economy of Ideas is still fresh and relevant today. It is more thoughtful and detailed than his later "Declaration" and, if anything, I would imagine that Barlow was annoyed that the piece is still so relevant today. He'd think we should be way beyond the points he was making in 1994, but we are not.

The other piece is more recent I've seen a few people pointing to is his Principles of Adult Behavior, which are a list of 25 rules to live by -- rules that we should be reminded of constantly. Rules that many of us (and I'm putting myself first on this list) fail to live up to all too frequently. Update I stupidly assumed that was a more recent writing by Barlow, but as noted in the comments (thanks!) it's actually from 1977 when Barlow turned 30.

Cindy Cohn, who is now the executive director of EFF, which Barlow co-founded, mentions in her writeup how unfair it is that Barlow (and, specifically his Declaration) are often held up as the kind of prototype for the "techno-utopian" vision of the world that has become so frequently mocked today. Yet, as Cohn points out, that's not at all how Barlow truly viewed the world. He saw the possibilities of that utopia, while recognizing the potential realities of something far less good. The utopianism that Barlow presented to the world was not -- as many assume -- him claiming these things were a sort of manifest destiny, but rather by presenting such a utopia, we might all strive and push and fight to actually achieve it.

Barlow was sometimes held up as a straw man for a kind of naive techno-utopianism that believed that the Internet could solve all of humanity's problems without causing any more. As someone who spent the past 27 years working with him at EFF, I can say that nothing could be further from the truth. Barlow knew that new technology could create and empower evil as much as it could create and empower good. He made a conscious decision to focus on the latter: "I knew it’s also true that a good way to invent the future is to predict it. So I predicted Utopia, hoping to give Liberty a running start before the laws of Moore and Metcalfe delivered up what Ed Snowden now correctly calls 'turn-key totalitarianism.'”

Just yesterday, before I learned of Barlow's passing, we officially launched a new website, EveryoneCreates.org, which discusses just how ridiculous the myth -- pushed by the RIAA and MPAA and their friends -- that there's some sort of "war" between "content and tech." According to that narrative, the internet has done much to harm content creators. Yet, everywhere we look, we see the opposite. How content creators have been enabled by these technologies to create, to share, to distribute and, yes, to make money from their creations. Barlow was one of the first, if not the first, content creators from the "old" world, to wholeheartedly see the promise of the internet, and spent his life dedicated to making the internet such a powerful place for all of us content creators.

Either way, this is an end of an era. We're in an age now where the general narrative making the rounds is, once again, touching on the moral panic of how terrible everything in technology is. Barlow spent decades teaching us about the possibilities of a better world on the internet, and nudging us, sometimes gently, sometimes forcefully, in that direction. And, now, just at a point where that vision is most at risk, he's left us to continue that fight on our own. The internet world has many challenges ahead of it -- and we should all strive to be guided both by Barlow's principles and his vision of constantly pushing to mold the technology world into that world we want it to be -- not ignoring the negatives, but looking for ways to get beyond them and expand the opportunities for the good to come out. It will be harder without him being there to help guide us.

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Posted on Techdirt - 7 February 2018 @ 9:00am

On The Internet, Everyone Is A Creator

from the it's-not-a-broadcast-medium dept

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

One theme that we've covered on Techdirt since its earliest days is the power of the internet as an open platform for just about anyone to create and communicate. Simultaneously, one of our greatest fears has been how certain forces -- often those disrupted by the internet -- have pushed over and over again to restrict and contain the internet, and turn it into something more like a broadcast platform controlled by gatekeepers, where only the chosen few can use it to create and share. This is one of the reasons we've been so adamant over the years that in so many policy fights, "Silicon Valley v. Content" is a false narrative. It's almost never true -- because the two go hand in hand. The internet has made it so that everyone can be a creator. Internet platforms have made it so that anyone can create almost any kind of content they want, they can promote that content, they can distribute it, they can build a fan base, and they can even make money. That's in huge contrast to the old legacy way of needing a giant gatekeeper -- a record label, a movie studio, or a book publisher -- to let you into the exclusive club.

And yet, those legacy players continue to push to make the internet into more of a broadcast medium -- to restrict that competition, to limit the supply of creators and to push things back through their gates under their control. For example, just recently, the legacy recording and movie industries have been putting pressure on the Trump administration to undermine the internet and fair use in NAFTA negotiations. And, much of their positioning is that the internet is somehow "harming" artists, and needs to be put into check.

This is a false narrative. The internet has enabled so many more creators and artists than it has hurt. And to help make that point, today we're launching a new site, EveryoneCreates.org which features stories and quotes from a variety of different creators -- including bestselling authors, famous musicians, filmmakers, photographers and poets -- all discussing how important an open internet has been to building their careers and creating their art. On that same page, you can submit your own stories about how the internet has helped you create, and why it's important that we don't restrict it. Please add your own stories, and share the site with others too!

The myth that this is "internet companies v. creators" needs to be put to rest. Thanks to the internet, everyone creates. And let's keep it that way.

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

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Posted on Techdirt - 6 February 2018 @ 3:33pm

Classified Cabinet Docs Leak Down Under Via An Actual Cabinet Sale... Just As Aussies Try To Outlaw Leaking

from the what-a-world dept

Back in December, we reported on an effort underway in Australia to criminalize both whistleblowers and journalists who publish classified documents with up to 20 years in prison. 20 years, by the way, is also the amount of time that Cabinet documents are supposed to be kept classified in Australia. But just recently Australia's ABC news suddenly started breaking a bunch of news that appeared to come from access to Cabinet documents that were still supposed to be classified. This included stories around ending welfare benefits for anyone under 30 years old as well as delaying background checks on refugees. Some explosive stuff.

On Wednsday, ABC finally revealed where all this stuff came from. It wasn't an Australian Ed Snowden. It was... government incompetence. Apparently, someone bought an old filing cabinet from a store that sells second-hand government office furniture. The cabinet had no key, so he drilled the lock and... found a ton of Cabinet documents in an actual cabinet.

So... if that law were to go through in Australia... would that mean the government employee who didn't check the filing cabinet would get 20 years in jail? Or the store that sold out? Or the guy that drilled it? Or do all of them get 20 years? Why don't we just support whistleblowers and the press for reporting on important news that the public should know about?

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Posted on Techdirt - 6 February 2018 @ 10:41am

Hacker Lauri Love Wins Extradition Appeal; Won't Be Shipped Off To The US

from the phew dept

We've been writing about the saga of Lauri Love for almost four years now. If you don't recall, he's the British student who was accused of hacking into various US government systems, and who has been fighting a battle against being extradited to the US for all these years. For those of you old timers, the situation was quite similar to the story of Gary McKinnon, another UK citizen accused of hacking into US government computers, and who fought extradition for years. In McKinnon's case, he lost his court appeals, but the extradition was eventually blocked by the UK's Home Secretary... Theresa May.

In the Lauri Love case, the situation went somewhat differently. A court said Love could be extradited and current Home Secretary Amber Rudd was happy to go along with it. But, somewhat surprisingly, an appeals court has overruled the lower court and said Love should not be extradited:

Lawyers for the 32-year-old, who lives in Suffolk, had argued that he should be tried for his alleged crimes in the UK and that he would be at risk of killing himself if sent to the US.

The court accepted both of the main arguments advanced by Love’s lawyers that there was no reason he could not be tried in England and that he might suffer serious damage to his health if he were extradited.

Love may now face a trial in the UK -- but that is considered a much better option than being shipped overseas. After the ruling, Love noted that this could impact future cases of individuals in similar circumstances, and the link above quotes some lawyers suggesting that it's going to be much more difficult for the US to extradite people for computer crimes going forward. Given the ridiculousness of the CFAA and the way that the US treats computer crimes, this is clearly a good thing.

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Posted on Techdirt - 5 February 2018 @ 3:38pm

Tarnishing The History Of Martin Luther King Jr.: Copyright Enforcement Edition

from the here-we-go-again dept

It is no secret that the estate of Martin Luther King Jr. have a long and unfortuate history of trying to lock up or profit from the use of his stirring words and speeches. We've talked about this issue going back nearly a decade and it pops up over and over again. By now you've probably heard that the car brand Dodge (owned by Chrysler) used a recording of a Martin Luther King Jr. speech in a controversial Super Bowl ad on Sunday. It kicked up quite a lot of controversy -- even though his speeches have been used to sell other things in the past, including both cars and mobile phones.

King's own heirs have been at war with each other and close friends in the past few years, suing each other as they each try to claim ownership over rights that they don't want others to have. Following the backlash around the Super Bowl ad, the King Center tried to distance itself from the ad, saying that they have nothing to do with approving such licensing deals:

However, as Paul Levy explains, this distancing appears wholly disingenuous given that the King Center partnered with the organization that does handle the licensing -- Intellectual Properties Management -- and that organization... appears to work on the premises of the King Center.

The King Center issued a Twitter statement distancing itself from the grant of permission to use the speech in the ad, without owning up to the fact that Center itself refers users to “Intellectual Properties Management” for requests to use the “works and intellectual property” of Dr. King, and that this commercial licensing operation is conducted on the King Center’s own premises. In short, there is a long and sordid history of King’s heirs monetizing their pretensions to control of historic references to their illustrious forebearer.

Intellectual Properties Management issued a statement indicating that it had licensed the specific use made of the speech in the ad as being consistent with Dr. King’s philosophy. Dodge refused to tell me what the fee was, claiming that the amount is “proprietary information”; IPM never responded to questions about the amount of the fee and how the payment is being used.

Furthermore, Chrysler's own statement about this notes that it had "the privilege of working closely with the Estate of Martin Luther King, Jr. to celebrate these words..." So, as Levy notes, even as the Estate tries to distance itself, it appears to have been involved, and passing off the blame on a separate operation that is closely tied to itself that handles licensing of King's words seems like weak sauce.

But this story gets even crazier. It didn't take long for people to look at the full "Drum Major Instinct" sermon that was the basis for the Dodge ad, and realize that, elsewhere in the speech, it included some rather pointed comments about advertising -- and explicitly mentioning car advertising as the kind of thing he was complaining about:

We are so often taken by advertisers. You know, those gentlement of massive verbal persuasion. And they have a way of saying things that, kinda gets you on the vine. In order to be a man of distinction, you must drink this whisky. In order to make your neighbors envious, you must drive THIS type of car.... And you know, before you know it, you're just buying that stuff? I've got to drive THIS CAR, because it's something about THIS CAR that makes my car a little better than my neighbor's car.

Which, you know... looks pretty damning. So then the folks at Current Affairs took the original Ram commercial and overlayed it with that part of the speech.

And then they posted it to YouTube... where Chrysler issued a copyright takedown. No joke.

Of course, the video is now back up, either because Chrysler realized how bad this looked or someone at YouTube decided this was safely in fair use territory. Either way, we're not embedding the original ad here, but you might want to see this reimagined one:

Either way, as Michael Hirtzik at the LA Times notes in a thorough and fairly comprehensive article, this (once again) demonstrates why it's so problematic that this content is locked up, rather than open to the public. Hirtzik argues for moving the licensing efforts away from the King Estate entirely:

Given King's unique stature as a public figure, it's proper to ask why members of his family should have the last word on licensing. The easy answer is that it's because the law gives them that right. But that's a technicality, albeit a decisive one. But if they're really determined to protect their father's legacy, they should consider voluntarily turning over the decision-making process to a different, or at least a larger, entity. A foundation board comprising scholars and historians, for instance, with advisory roles for business experts and, sure, family members.

The process should be open and transparent, so at least we don't have a situation where some corporation drapes itself in King's preacherly robes while the estate issues fatuous excuses that a TV commercial embodies "Dr. King's philosophy." That doesn't make anyone involved look good, or honest.

But, I wouldn't jump so quickly over the "the law gives them that right" part. We should zero in on that and ask why? Why is this the proper public policy result? Why do we allow copyright to be granted on such a thing? Why don't we more widely to allow such things to be used under fair use? Why are we so focused on locking up the legacy of people that we have to license every word they said, rather than letting the world make use of them to build on them, to comment on them and to share them more freely? The King Estate and its attempt to hide away from the blame over this licensing decision is one thing. But the underlying copyright issues should not be ignored as well. None of this would be possible if our copyright laws were sane and reasonable.

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Posted on Free Speech - 5 February 2018 @ 9:37am

Public School Board Member Threatens Boss Of Woman Who Spoke Out Against School Book Banning

from the it's-free-speech-all-the-way-down dept

The VC Star has a slightly bizarre article about a school board trustee of the Conejo Valley Unified School District (in Southern California) named Mike Dunn, who apparently was upset about a speech given by a mother at a board meeting. That mother -- Jessica Weihe -- also blogs on the site AnonymousMommy.com (though as far as I can tell, she was not "anonymous" in that people in the community appeared to know who she was). Weihe gave a perhaps slightly rambling speech at a recent board meeting. The details appear to be somewhat specific to some district policies on handling "mature" books, but suffice it to say that it appears that Dunn was arguing against certain books being on the curriculum because he felt their content was inappropriate. Among the books that there was some controversy about was Sherman Alexie's quite well known book The Absolutely True Diary of a Part-Time Indian. Weihe's speech mocked Dunn for having tried to get it off the curriculum, and accuses him of not having read the book, and over-reacting to why it might be a problem. Here's a snippet from what she said:

Unlike Mr. Dunn, I actually read the book in its entirety. In fact, I led an online book reading of Part-Time Indian, in which 40 local parents participated in, so that we could be better informed as to the concern regarding this literature selection before its approval, concern which Mr. Dunn raised at a June board meeting over the phrase “kicked him in the balls.” I have to say, I was quite disappointed to find no salacious material! You all had me bracing to clutch my pearls! Mr. Dunn, who cannot and has not confirmed he actually read the book in entirety, (I mean, he couldn’t even find time to attend board governance training) falsely and inappropriately asserted in a public letter to the Acorn that approving this book was akin to “child abuse” and that it was “pornographic” in nature. Aside from noting how reprehensible it is to assert that our curriculum committee and teachers want to impose pornography on our students and take part in an act of child abuse, if this were to be true, I find it curious it’s not asterisked as such here. It’s because it’s not pornographic, nor, as Mr. Dunn would have our community believe, child abuse.

There's a lot more in the talk, but that gives you the basic idea. Dunn, not surprisingly, wasn't happy about this. So... rather than respond or give his position, he decided to call Weihe's boss and threaten to try to shame their company if she continued to say similar things about the school board or its members.

If you can't read that, it says:

I am told that you approve of the political activities of Jessica Wiehl (anomymous mommie).

Every time she slanders or libels the school district or a school board member during public comments at a board meeting, I am going to respond that Jessica she works for Mustang Marketing and that you support her opinions.

Her boss -- Scott Harris -- responded pretty quickly, and did so pretty thoroughly:

If you can't read that, it says:


Thank you for the courtesy of putting your threat in writing. However, before you go off half-cocked and wrong--again--and while you often have little apparent interest in the truth or facts, allow me to correct you in advance of you making good on your threats.

I support Jessica's right to her views and to her expressing them. Her views are her own, not mine or my companies. If you'd like to point out that I support community involvement, community activity and freedom of speech--please do. You can open and close each meeting with that and hang a poster over your head that states the same thing. Heck, I'll pay for the poster, if that helps.

If, as you have threatened, you choose to falsely point out that I support all her views, none of which she shares with me in advance of the meetings, I am putting you on notice that that is a false statement.

Again, so that I'm clear, supporting Jessica's right to her opinions and expressing them in a public forum (and I do!), is far different from me supporting her opinions, which I may or may not, depending on her actual positions. I hope I've made this clear enough for you to understand.

And since I'm not convinced that you understand the definition of slander, I have included it here. I think if you take the time to read this - and to follow through with your threat - you'll see you've exposed yourself - and the CVUSD - to a lawsuit.

n. oral defamation, in which someone tells one or more person an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit.

Mike, have a terrific Thursday and maybe you can limit your threatening emails to just me, at least for today=)

Scott Harris

A number of other emails have since been sent, with Dunn "suggesting" that he and Harris go to mediation (I'm not quite clear what they have to mediate, but...). Harris responds to the mediation request by pointing out that there's nothing to mediate, and he's happy to meet if Dunn wishes to apologize (and, reminding Dunn that he supports Wiehl's First Amendment rights and that doesn't mean he agrees with her opinions).

Either way: what a mess. Having a public official make threats like that certainly appear to be attempts to stifle speech, which would be a flat out First Amendment violation. Some people might respond that public shaming, or even agitating to get someone fired, is using "more speech" against speech someone doesn't like -- and in many cases, that's true. But when one is a public official, the calculus changes, because it becomes government attempting to suppress speech. From Okwedy v. Molinari:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That seems fairly on point.

As for the cross claims of defamation... neither seem particularly strong, though Harris would probably have a slightly stronger argument. The only real statements of fact that I see in Wiehl's original speech was about whether or not Dunn had read the book, but she lays out her reasons for thinking so (asking him to quote the problematic parts and him refusing to, as well as his non-answer about having read the book). Besides, it's a tough lift to argue that saying someone hadn't read a book is defamatory. As for Harris's defamation threat in the other direction, obviously it would depend on what Dunn actually said, but it is at least true that he would have knowledge that his initial claim (of Harris supporting Wiehl's positions) is false, and that could make it a bit dicier for Dunn. The fact that Wiehl is also claiming that someone left a voicemail at her employer's office saying they would no longer do business with the company and would be telling all their friends not to do business with them (implying because of this) at least presents evidence of reputational harm done.

No matter what, though, this is a really bad look for Dunn. Not just in trying to stop high school kids from reading, but then trying to suppress the speech of someone who criticized him for blocking the book. Dunn, as a public official, has the right to speak his mind, but not to ban books or to suppress the speech of the public. Those are both pretty fundamental to the First Amendment.

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Posted on Free Speech - 2 February 2018 @ 11:56am

Israeli Music Fans Sue Two New Zealanders For Convincing Lorde To Cancel Her Israeli Concert

from the taking-the-d-out-of-bds dept

Let's start this post off this way: the whole "BDS" movement and questions about Israel are controversial and people have very, very strong opinions. This post is not about that, and I have no interest in discussing anyone's views on Israel or the BDS movement. This post is about free speech, so if you want to whine or complain about Israel or the BDS movement, find somewhere else to do it. This is not the post for you. This post should be worth discussing on the points in the post itself, and not as part of the larger debate about Israel.

Back in December, the very popular New Zealand singer Lorde announced that she was cancelling a concert in Israel after receiving requests to do so from some of her fans who support boycotting Israel.

"I've received an overwhelming number of messages & letters and have had a lot of discussions with people holding many views, and I think the right decision at this time is to cancel the show," Lorde wrote of her decision.

"I pride myself on being an informed young citizen, and I had done a lot of reading and sought a lot of opinions before deciding to book a show in Tel Aviv, but I'm not too proud to admit I didn't make the right call on this one."

No matter what you think of BDS/Israel it does seem clear that Lorde should have the right to decide where her concerts will be -- and where they will not be. But in response to this, some of the people who had purchased tickets for the show, along with a "legal rights" group named Shurat HaDin have decided to sue. They're not suing Lorde. They're suing two New Zealanders who wrote an open letter to Lorde, pleading with her not to perform in Israel. And they're suing them in Jerusalem.

The Washington Post explains the ridiculous rationale for the lawsuit:

Shurat HaDin's lawsuit is based on a 2011 Israeli law allowing legal action to be taken against one “who knowingly publishes a public call for a boycott against the State of Israel.” Although the case will be heard in a Jerusalem court, the law applies to foreign citizens and the ruling is binding abroad, according to international legal treaties.

If successful, the two women in New Zealand, Justine Sachs and Nadia Abu-Shanab, will be forced to pay damages to the three Israeli teenagers of as much as $5,000 each.

This is, apparently, the first use of that law -- which has remained controversial in Israel for a damn good reason. Even if you are against the BDS movement, basic civil liberties concepts around free expression should find this whole thing dangerous and ridiculous. The idea that Lorde choosing not to perform in Israel would constitute "damage" on Israel seems ridiculous on its face. The fact that these ticket buyers think that the proper response to someone saying something they don't like and persuading a famous person to do something they don't like is to sue rather than to try to persuade people in the other direction seems like an indictment of their own ability to make their case.

And, of course, there's the whole issue of them living in countries halfway around the world from each other. While the Washington Post seems to think the law can be enforced outside of Israel's borders, the NY Times story quotes someone who's doubtful:

Adam Keller, a spokesman for Gush Shalom, a group that has unsuccessfully challenged the law, said he was not sure that an Israeli court would accept the idea that “being deprived of the pleasure of listening to your favorite singer would be considered damage.”

“There is also a serious question to whether Israeli law can even apply to people in another country,” he said. “Only on things that are considered universal laws, like genocide or piracy, is that normally accepted.”

Any attempt to enforce a judgment in such a case, he said, could quickly become a diplomatic problem for Israel.

A diplomatic incident because a musician decided not to perform. Time to get some perspective.

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