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Posted on Techdirt - 11 January 2017 @ 11:55am

Techdirt's First Amendment Fight For Its Life

from the the-first-amendment-has-to-mean-something dept

As you may have heard, last week we were sued for $15 million by Shiva Ayyadurai, who claims to have invented email. We have written, at great length, about his claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. We believe the legal claims in the lawsuit are meritless, and we intend to fight them and to win.

There is a larger point here. Defamation claims like this can force independent media companies to capitulate and shut down due to mounting legal costs. Ayyadurai's attorney, Charles Harder, has already shown that this model can lead to exactly that result. His efforts helped put a much larger and much more well-resourced company than Techdirt completely out of business.

So, in our view, this is not a fight about who invented email. This is a fight about whether or not our legal system will silence independent publications for publishing opinions that public figures do not like.

And here's the thing: this fight could very well be the end of Techdirt, even if we are completely on the right side of the law.

Whether or not you agree with us on our opinions about various things, I hope that you can recognize the importance of what's at stake here. Our First Amendment is designed to enable a free and open press — a press that can investigate and dig, a press that can challenge and expose. And if prominent individuals can make use of a crippling legal process to silence that effort, or even to create chilling effects among others, we become a weaker nation and a weaker people because of it.

We are a truly small and independent media company. We do not have many resources. We intend to fight this baseless lawsuit because of the principles at stake, but we have no illusions about the costs. It will take a toll on us, even if we win. It will be a distraction, no matter what happens. It already has been — which may well have been part of Ayyadurai's intent.

I am beyond thankful to the many of you who have reached out and offered to help in all sorts of ways. It is heartening to know so many people care about Techdirt. At some point soon, we may set up a dedicated legal defense fund. But, in the meantime, any support you can provide us will help — whether it's just alerting people to this situation and the danger of trying to stifle a free press through meritless lawsuits, or it's supporting Techdirt directly (or, if you have a company, advertising with us). As always, you can support us directly as a Friend of Techdirt, or check out some of the other perks you can get in our Insider program. You can also support us via Patreon.

If freedom of expression and the press is to actually mean something, it needs to be protected, not stomped on with baseless lawsuits that silence independent voices and opinions.

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Posted on Techdirt - 11 January 2017 @ 8:25am

Donald Trump Learns Why It's Important Not To 'Open Up' Libel Laws, As Suit Against Him Is Tossed

from the good-ruling dept

Donald Trump famously said during the campaign that, if elected, he would "open up" our libel laws. Of course, after he was elected, in an interview with the NY Times, he walked back some of that promise, noting that someone had pointed out such laws might be used against him too:

MARK THOMPSON: Thank you, and it’s a really short one, but after all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?

TRUMP: Oh, I was hoping he wasn’t going to say that. I think you’ll be happy. I think you’ll be happy. Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I, I think you’ll be O.K. I think you’re going to be fine.
And now he's had some more time to think about that, and hopefully he's pretty happy with how carefully our libel laws are designed to protect free speech, because they just protected Donald Trump himself from a questionable defamation lawsuit. The lawsuit was filed by Cheryl Jacobus about some tweets from the now-President elect. As summarized by Eriq Gardner over at The Hollywood Reporter:
Jacobus sued Trump and his former campaign manager Corey Lewandowski over comments made in the midst of a heated Republican primary. Seeking $4 million in damages, she alleged in her complaint that the Trump campaign tried to recruit her in May 2015, even attempting to entice her with the prospect of a post-campaign job at Fox News. She says Lewandowski told her that Trump was very close to Roger Ailes. She further claimed of coming to the judgment that working for Trump was untenable because Lewandowski was a "powder keg."

In January 2016, she appeared on CNN to discuss Trump's decision to skip a primary debate on Fox News and opined that Trump was "using the Megyn Kelly manufactured kerfuffle as an excuse." A few days later, she returned to Don Lemon's show and was dubious about Trump's claims of self-funding his campaign.

This may have set Trump off. In one tweet, he wrote how he "turned her down twice and she went hostile. Major loser, zero credibility."
Trump filed for a motion to dismiss, and argued that his statements were purely opinion -- and the judge in her ruling agreed to dismiss the case, pointing, in particular, to the nature of debate and rhetoric on Twitter. As the ruling properly notes, "context is key."
As context is key..., defamatory statements advanced during the course of a heated public debate, during which an audience would reasonably anticipate the use of "epithets, fiery rhetoric or hyperbole," are not actionable.
Later in the ruling, the judge pointed out that a bunch of angry tweets are quite different than, say, an investigative article in the NY Times.
In addition, "[t]he culture of Internet communications, as distinct from that of print media, such as newspapers and magazines, has been characterized as encouraging a 'freewheeling, anything-goes writing style.'".... ["Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns."]). Thus, "epithets, fiery rhetoric or hyperbole" advanced on social media have been held to warrant an understanding that the statements contained therein are "vigorous expressions of personal opinion" "rather than the rigorous and comprehensive presentation of factual matter." .... [reasonable reader would believe that statements made on an Internet blog during sharply contested election generally referencing "downright criminal actions" were opinion, "not factual accusation of criminal conduct"]).

Consequently, "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact."....

Similarly, comments made on television talk shows, given the "give and take" of the show, and the "spirited" verbal exchanges between the host and guest, and the "at times heated" "interplay with audience members," are deemed nonactionable opinion.
And what that leads to is Trump's statements simply aren't defamation -- because our defamation laws are designed to (1) protect freedom of expression and (2) take context into account:
Trump's characterization of plaintiff as having "begged" for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff's a state of mind and is therefore, not susceptible of objective verification.... To the extent that the word "begged" can be proven to be a false representation of plaintiff's interest in the position, the defensive tone of the tweet, having followed plaintiff's negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel. Lewandowski's comments, overall, are speculative and vague, and defendants' implication that plaintiff was retaliating against them for turning her down, notwithstanding the unmistakable reference to her professional integrity, is clearly a matter of speculation and opinion.

Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump's regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable.... His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as "loser" or "total loser" or "totally biased loser," "dummy" or "dope" or "dumb," "zero/no credibility," "crazy" or "wacko," and "disaster," all deflecting serious consideration....
Got that? The very nature of our libel laws are designed to enable and encourage public discourse and debate -- even recognizing that it sometimes gets heated and involves insults -- and Twitter, blogs and social media are some of the best representations of that. This is why Trump should be quite happy that our libel laws are as they stand today, and that there's a strong First Amendment bar that has to be cleared to bring a defamation lawsuit against someone, like Donald Trump, who engages in name calling and verbal attacks on someone he disagrees with. This is exactly what the First Amendment is about:
... with the spirit of the First Amendment, and considering the statements as a whole (imprecise and hperbolic political dispute cum schoolyard squabble), I find that it is fairly concluded that a reasonable reader would recognize defendants' statements as opinion, even if some of the statements, viewed in isolation could be found to convey facts. Moreover, that others may infer a defamatory meaning from the statements does not render the inference reasonable under these circumstances.
And that, right there, is why we have strong defamation laws. Even if you dislike Trump and what he stands for (and if you dislike his petty squabbles on Twitter), you should celebrate this ruling for a variety of reasons: it upholds the First Amendment and supports free expression online and it helps demonstrate to Trump himself how important the protections built into our defamation laws today can be.

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Posted on Techdirt - 10 January 2017 @ 5:46pm

Iceland Forms A New Government... Without The Pirate Party

from the keep-sailing dept

Last month, we recognized that while it was still a long shot, it was interesting that the Iceland Pirate Party actually had a chance to form the new government there. A few previous efforts had failed and the job had fallen to the Pirate Party. However, it didn't take long for reports to leak out that the Pirate Party was having trouble building a coalition that would form the new government. And now a new government has been formed without the Pirate Party as part of the coalition:

Iceland's center-right Independence, Reform and Bright Future parties have agreed to form a coalition government and will give parliament a vote on whether to hold a referendum on joining the European Union.

Together, the coalition will hold 32 of the 63 seats in parliament. The Independence Party will have 21 seats, making it the largest party in the coalition.
This was always the most likely result -- as these groups also got the first crack at trying to form a coalition, and couldn't make it work at the time. That was part of what left an opening for the Pirate Party to try. It certainly would have been interesting to see what a Pirate Party-led Iceland would have been able to do -- especially in a time where we really could use a haven for freedom of expression, internet freedom and privacy. But, alas, it didn't happen this time around.

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Posted on Techdirt - 10 January 2017 @ 6:22am

Backpage Kills Adult Ads On The Same Day Supreme Court Backed Its Legal Protections, Due To Grandstanding Senators

from the someone-teach-the-senate-the-law? dept

A few years back, we detailed how ongoing grandstanding and toothless legal threats finally forced Craigslist to shut down its "adult services" section. None of that did anything to stop prostitution or human trafficking online. It just moved to other sites -- which was particularly ridiculous, given that Craigslist had been proactive in working with law enforcement to help them track down the actual perpetrators of crimes via the site. And, the illegal behavior just moved on to somewhere else -- as did the ridiculous grandstanding. The main target since Craigslist shut down its services: Backpage.com, the Craigslist-alike site that spun off from Village Voice Media. And now, after an even more intense grandstanding and legal campaign, Backpage has also been pressured to shut down its adult section. If you go to it now, you'll see this instead:

And here's the craziest part. This happened on the same day the Supreme Court basically said Backpage is legal and the legal claims against it are bogus. But the law is apparently meaningless in the face of a pair of grandstanding Senators who want their names in the headlines, pretending they care about human trafficking, while actually making the problems worse.

Last May, we wrote about an excellent 1st Circuit appeals court victory for Backpage.com, which (like nearly every other court before them) found that the site was clearly protected by Section 230 of the Communications Decency Act. As we've discussed many, many times, there are a number of people out there who would like to ignore the fact that while some users of Backpage may be violating the law to engage in prostitution, the proper response is to go after those actually breaking the law, and not the platform they're using. That's the very heart of Section 230, and it's exactly what many, many courts have realized. The case we wrote about last May (and also wrote about when Backpage prevailed at the district court level the previous May) involved three clear victims: women who were forced into selling sex as teenage runaways. Their situation is undoubtedly awful -- but it was the fault of those who exploited and abused them, and not the online service they happened to use.

On Monday, the Supreme Court effectively put its stamp of approval on the 1st Circuit appeals court ruling by denying the plaintiff's petition to hear an appeal on that ruling. While it's not quite the same as saying that the Supreme Court fully endorsed the opinion of the 1st Circuit saying that Section 230 clearly protects Backpage from being blamed for how people use the site, it certainly suggests that the court didn't see any major problems with the ruling.

But... there's just something about Backpage that makes politicians want to stupidly and misleadingly grandstand. Just hours after the Supreme Court effectively blessed the 1st Circuit ruling saying Backpage hadn't broken the law, Senator Claire McCaskill released a report (with Senator Rob Portman) that blasts Backpage for "knowing facilitation of online sex trafficking." This is in advance of a grandstanding Senate hearing that McCaskill/Portman have prepared to parade out the executives of Backpage to yell at them for facilitating sex trafficking, even just as the Supreme Court has basically said this entire line of argument is completely bogus.

The report is a joke. The crux of the report is that, via subpoena, the Senate staffers were able to determine that Backpage edits and or bans certain words that indicate an ad is for prostitution. Let me repeat that: the Senate is mainly annoyed that Backpage proactively looks for and blocks situations where it appears that the ads may be for prostitution -- especially involving children. Yet, the Senate investigators twist this to make it sound like a bad thing.
Over time, Backpage reprogrammed its electronic filters to reject an ad in its entirety if it contained certain egregious words suggestive of sex trafficking. But the company implemented this change by coaching its customers on how to post “clean” ads for illegal transactions. When a user attempted to post an ad with a forbidden word, the user would receive an error message identifying the problematic word choice to “help” the user, as Ferrer put it. For example, in 2012, a user advertising sex with a “teen” would get the error message: “Sorry, ‘teen’ is a banned term.” Through simply redrafting the ad, the user would be permitted to post a sanitized version.
I'm not entirely clear what they're complaining about here. You could also quite clearly see this as Backpage letting users know that it is not a place that should be used for sex trafficking, because it clearly alerts them to things that they don't want on the site. But the Senate staffers seem to have intentionally spun this to appear in the absolute worst light.

On top of that, Section 230 is again quite clear that any effort a platform does take to moderate stuff doesn't change the fact that a site is protected from liability. And that's to encourage exactly the type of behavior that Backpage is already doing: which is choosing voluntarily to block certain types of ads that they don't want. Now, I'm sure some will argue, as the Senate report tries to say, that because Backpage then allows another ad without the "banned" words through, that it's not stopping the underlying activity, but that's basically mandating that any online platform have incredibly adaptive and complex filters to make sure that anyone who tries to get around their filters cannot do so. That's a very dangerous precedent, and would basically make it impossible for any online service to exist, without being massive.

The report argues that the "editing" of posts by Backpage takes away 230 immunity:
Backpage and its officers have successfully invoked Section 230 in at least two other cases to avoid criminal or civil responsibility for activities on the site. In neither case, however, did the court have before it evidence that Backpage had moved beyond passive publication of third-party content to editing content to conceal illegality.
The argument here rests on the ruling in the infamous Roommates.com case from nearly a decade ago -- which remains the biggest case where a Section 230 defense failed. But that's a very different situation. Roommates.com failed because the Roommates system itself was asking questions deemed to be illegal under housing law (about racial preferences and such). That was part of the site that was fully created and controlled by Roommates.com. The difference here is that while Backpage may be running some of its posts through a filter, that's to moderate the content to remove descriptions of illegal sex trafficking or illegal prostitution. In other words, what Backpage is doing is actually moderating content, which is explicitly allowed and encouraged by the "Good Samirtan clause" of CDA 230, found in section (c). That part of the law says that the immunity applies even for "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." It seems quite clear that Backpage editing posts to remove such content falls squarely into that bucket.

The report is also strange in that it uses Backpage's own helpfulness to law enforcement against it. It highlights how law enforcement regularly gets reports and details of child trafficking because of Backpage:
According to the latest report from NCMEC, 73% of the suspected child trafficking reports it receives from the public involve Backpage. According to the Massachusetts Attorney General, “[t]he vast majority of prosecutions for sex trafficking now involve online advertising, and most of those advertisements appear on Backpage."
In other words, one of the best tools out there for finding and stopping sex trafficking is... Backpage.com. And the Senators response is to blame Backpage and make them legally liable? How does that make any sense at all? Now that Backpage has shut down those ads, they'll scatter elsewhere. Sex trafficking won't stop and it will be harder for law enforcement to track down and find actual perpetrators or save actual victims. Let's be clear: Senators McCaskill and Portman, in an effort to get their names in the headlines, have just made sex trafficking easier, by making law enforcement's job harder.

The report also makes a big deal out of the fact that Backpage's execs know that the site is used for trafficking and prostitution, but, again, so what? That's like the same claims that the legacy entertainment industry made about YouTube. Just because you know that a site can and sometimes is used for illegal behavior does not automatically make the site liable for that illegal activity. That's quite clear under Section 230, yet totally ignored by this report.

The Supreme Court got this right... while Senators Claire McCaskill and Rob Portman appear to be yet another set of politicians who are grandstanding by blaming a platform, rather than doing anything that will actually help stop sex trafficking. And the end result is that Backpage has shuttered that section. This won't stop or even diminish sex trafficking and prostitution online. Just as it moved from Craigslist to Backpage, it will continue to move elsewhere -- and that will probably be to a site that is even less willing to work with law enforcement to help track down and stop real illegal behavior. Similarly, this witchhunt has taught any new platform that any attempt to diminish the blatant use for sex trafficking and prostitution will be twisted to pretend that it's just trying to "hide" that activity.

This is a travesty. McCaskill and Portman will get their headlines, and sex trafficking will continue -- it will just be harder to help actual victims.

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Posted on Techdirt - 9 January 2017 @ 9:44am

What The US Intelligence 'Russia Hacked Our Election' Report Could Have Said... But Didn't

from the why-didn't-it? dept

By now it's quite clear that many in the US intelligence community believe strongly that Russia tried to influence the US election, and part of that included hacks into the DNC's computer systems, a spearphishing attack on Clinton campaign manager John Podesta's emails and some exploratory surveillance hacking into the computer systems of state election systems (but not into the voting machines themselves). The US intelligence services said it back in October. And they said it again last month. And, they said it again on Friday with the release of an unclassified "incident attribution" report.

Because the debate over this issue has gotten quite silly in some places -- and ridiculously political as well -- let's start with a few basic points: It is absolutely entirely possible that the Russians hacked into all these systems and that it was trying (and perhaps succeeding?) to influence the election. Nothing in what I'm saying here is suggesting that's not true. What I am concerned about is the evidence that's presented to support that claim -- mainly because I think we should all be terrified when we escalate situations based on secret info where the government just tells us to "trust us, we know." And, yes, governments (including the US) have done this going back throughout history. That doesn't make it right.

But here's the thing: there actually is some pretty good evidence that Russia was behind the hack. But here's the crazy thing: that evidence is not in this report, but presented elsewhere. If you keep reading below, I'll point out an example of some pretty compelling evidence that Russia was behind the hack -- and it's the kind of evidence that the US intelligence community could have easily provided, but did not.

And that's where the problems lie. Because very little in this new report provides any evidence at all of Russia doing anything. It certainly goes deep into the motivations for why Russia might want to influence our election. It's also not surprising that Russia might have the ability and expertise to do these things. But it would be nice to see actual evidence. As Lovenzo Franceschi-Bicchierai at Motherboard notes, there's really very little in the new report that we didn't know already:

But this report adds nothing we didn’t already know from public information. The only significant statement is that, yes, American spies are convinced Russian President Vladimir Putin himself directed the hacking and influence campaign—something they already stated in early October.
Marcy Wheeler similarly notes that there's plenty of work on motives, but little on evidence:
What we see of it is uneven. I think the report is strongest on Russia’s motive for tampering with the election, even if the report doesn’t provide evidence. I think there are many weaknesses in the report’s discussion of media. That raises concerns that the material on the actual hack — which we don’t get in any detail at all — is as weak as the media section.
The "media" section is actually pretty ridiculous. It basically notes that RT, the American-targeted TV station owned by the Russian government, has a history of pushing Russian-approved propaganda. Well, sure.

And just one more pointer on this. Former CIA analyst Patrick Eddington also has a really thorough analysis of the report and comes to basically the same conclusions:
While the report provides new and important details on the multifaceted Russian operation, its failure to include declassified primary source data for key claims ensures the controversy has not been put to rest.
So, what kind of evidence could the intel community have provided? Well, Matt Tait, who used to work at the UK's GCHQ, and who now tweets at @pwnallthethings gave a pretty damn good example of digging down into publicly available data to present quite compelling evidence that Russian interests were behind, at the very least, the hack of John Podesta's emails. This is not 100% conclusive, certainly, but it's a hell of a lot more compelling than anything released by the US government:





















See? That's pretty damn compelling. Perhaps it's not conclusive, but it's a very, very strong argument for why the hack came from Russia. And it's a hell of a lot more compelling that what the US government put out.

I've seen lots of people arguing that the intelligence community couldn't reveal more details because it would "burn sources and methods" that were used to determine the attribution of the hacks -- but Matt Tait did figure all that out with public information (ironically, some of it revealed via Wikileaks). Now, perhaps the intelligence community that hates Wikileaks doesn't want to use that as a "source" in its report. Or perhaps it's something else. And, yes, it makes sense that the intelligence community should not burn sources and methods to reveal stuff like this. But there are ways to present compelling details without compromising those things. But, of course, this is the US intelligence community we're talking about, and they're generally not fans of revealing anything at all. So I'm sure even the details in this report were like pulling teeth. And that's dumb.

Again, more and more of what happens in the world is going to happen via computer systems and networks. And we're not always going to know. But it's a serious problem when governments are escalating situations and making angry posturing moves against one another based on totally secret information where the best we're being told by the government is "trust us." Especially when that very same government has a long history of not being so trustworthy.

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Posted on Techdirt - 6 January 2017 @ 11:54am

Donald Trump Demonstrating How Much Of Our Political System Is Based On Tradition & Custom, Not Rules

from the is-that-good-or-bad? dept

Perhaps one of the most common phrases I've seen in reference to various actions by Donald Trump and his transition team since the election in November is "this is not normal" or "this is not how things are done." Those phrases keep popping up over and over again -- often in somewhat horrified tones. Politico recently had a pretty good article demonstrating how the Trump transition team seems to not care one bit about the traditional way things are done:

President-elect Donald Trump has said he might do away with regular press briefings and daily intelligence reports. He wants to retain private security while receiving secret service protection, even after the inauguration. He is encouraging members of his family to take on formal roles in his administration, testing the limits of anti-nepotism statutes. And he is pushing the limits of ethics laws in trying to keep a stake in his business.

In a series of decisions and comments since his election last month -- from small and stylistic preferences to large and looming conflicts -- Trump has signaled that he intends to run his White House much like he ran his campaign: with little regard for tradition. And in the process of writing his own rules, he is shining a light on how much of the American political system is encoded in custom, and how little is based in the law.

And... that's really quite interesting, because of how little many people -- especially policy experts -- have really stopped to consider how much of the way we do things is based on custom, and not actual rules. There are two ways of looking at this. First, there absolutely are serious problems with "the way things have always been done." So there's potential value in having someone who doesn't feel hamstrung by traditions and customs that might not make sense. But, the flip side of that is that there are often really good reasons for the way many of these things are done. And, so far, the customs and traditions that Trump has been indicating he'll ignore, are ones that do seem to be based on solid reasoning, rather than just silly legacy reasons. Intelligence reports, secret service protection, and anti-nepotism rules make sense.

It's one thing to blow stuff up because they're outdated and unnecessary -- and another thing altogether to just blow them up for the sake of blowing them up, or even just out of convenience. But as a way of highlighting just how much of our system is held together based on legacy reasons, rather than actual rules, it's fascinating.

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Posted on Techdirt - 5 January 2017 @ 8:29am

Single Choke Point Problems: Apple Removes NY Times App From Chinese App Store After Chinese Gov't Complains

from the censorship-made-easy dept

One of the wonders of the internet was that it was supposed to be a distributed computer system, meaning that it would be harder to take down and harder to censor. But, over time, things keep getting more and more centralized. And that's especially true in the mobile ecosystem, and doubly so for the Apple iOS mobile ecosystem (at least on Android it's much easier to sideload apps). The latest demonstration of this is that Apple agreed to remove apps from the NY Times from its iOS app store in China, complying with demands from the Chinese government:

Apple removed both the English-language and Chinese-language apps from the app store in China on Dec. 23. Apps from other international publications, including The Financial Times and The Wall Street Journal, were still available in the app store.

“We have been informed that the app is in violation of local regulations,” Fred Sainz, an Apple spokesman, said of the Times apps. “As a result, the app must be taken down off the China App Store. When this situation changes, the App Store will once again offer the New York Times app for download in China.”
The article about this -- in the NY Times, naturally -- says that the paper has asked Apple to reconsider. No one is clear on exactly why this is happening, but the (reasonable) assumption is that it has to do with the new regulations China put in place over the summer that demand all internet news providers must be approved by the Chinese government -- which the Chinese are spinning as part of its effort to crack down on "fake news."

Of course, this really just highlights two separate, but equally worrisome trends: (1) the increasing centralization of connected ecosystems, that creates a single chokepoint to target with censorship demands; and (2) the ability to use hyped up claims about "fake news" to censor legitimate and critical investigative reporting. Neither of these are good to see, and both need to be counteracted.

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Posted on Techdirt - 4 January 2017 @ 9:40am

RIAA Still Pushing Its Bogus Message Of A 'Value Gap' And 'Fair Compensation'

from the can-we-review-some-history dept

The RIAA is not exactly known for being the most honest of organizations out there, but in an interview given by the organization's General Counsel, Steve Marks, the level of blatant dishonesty is taken to incredible new levels. I'm going to take just one paragraph and break down what a load of total bullshit it is, and hopefully it will demonstrate, yet again, why the RIAA should never be taken seriously in its claims. It's the final question in a short interview with the Hollywood Reporter, and the question is at the top:

What changes do you foresee in the landscape of music law over the next five years?

Issues like the “value gap” and obligations of intermediaries will continue to dominate the legal landscape. Ideally, the Byzantine legal structure today would give way to a system where creators are fairly compensated and competitors are on equal footing. Those who have an interest in music could come together to figure out solutions. While litigation can be an important tool, it often takes a long time and the results are unclear. Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.
Let's take this bit by bit.
Issues like the "value gap"....
The "value gap" is a completely made up concept by the RIAA and friends, arguing that internet platforms aren't paying the record labels (not the artists) enough. It's based on a series of out and out lies, including the simply false claim that artists make more from vinyl record sales than from online streaming.

The "value gap" is the RIAA cherry picking misleading numbers to argue that internet platforms aren't paying them enough. Note that they don't make any effort to improve what they're doing -- they're just demanding more money from platforms... just because.

And, really, that's the same issue with the rest of that sentence:
... obligations of intermediaries will continue to dominate the legal landscape.
"Obligations of intermediaries." That's legal speak for "we want everyone else to act as our private police force, and they should automatically block infringing material or we should be able to sue them for billions of dollars." Never mind the fact that the industry can't even keep track of its own copyrights, and has been known to sue over authorized works or that the RIAA itself has a history of falsely claiming infringement on works that were actually authorized -- even in cases that resulted in the bogus takedown of a site that was sent promotional works to post. And yet it expects "intermediaries" (read: Google) to magically know which works are authorized and which are not -- and to face billions of dollars in possible judgments if it guesses wrong.
Ideally, the Byzantine legal structure today...
The reason copyright's legal structure today is so "Byzantine" is because of lobbying by the RIAA and its friends at the MPAA. Every time a new technology comes along, the RIAA flips out and demands a patchwork of add-ons to copyright law to protect its gatekeeper powers, allowing it to extract monopoly rents.

Of course, the "Byzantine legal structure" Marks is whining about here is actually the very one that the RIAA itself lobbies heavily for with the DMCA's 512 notice-and-takedown provisions. The RIAA wanted a way to censor the internet via copyright law, and the DMCA was the trick. The fact that the RIAA no longer likes the deal that it fought for is just a bad joke.

And, let's not even get into the "Byzantine" structure of RIAA label contracts designed to keep artists from actually getting paid... Or, wait, let's dig right into that following the next bit of insanity from Marks.
... give way to a system where creators are fairly compensated...
Wait. The RIAA is asking for "creators" to be "fairly compensated"? Hahahahahahaha. Oh, that's a good one. This is the same RIAA who has worked incredibly hard to screw over artists time and time again to make sure they are not fairly compensated? The same RIAA whose member labels create contracts where artists routinely note that they made $0 in royalties, because the label contracts make it so impossible to recoup the advance that when you ask for an "accounting" of how much money an album has made, the labels just make shit up to avoid paying.

These would also be the very same RIAA member labels who take the vast majority of the revenue from new platforms, leaving just a pittance for artists -- and then whine that it's the platforms not giving them a fair deal. The very same labels that make sure that artists get close to nothing of any money coming in to the label. And, yes, the very same labels who for years pretended that digital music was classified as the same as a CD sale -- with much lower royalty rates than "licensed" music, leading numerous artists to sue just to get what they were clearly owed. The very same labels that many artists have had to sue, just to get a proper accounting of what is owed.

So, I'm sorry, but what a load of bullshit for the RIAA, of all organizations, to claim that it's fighting for "fair compensation" for artists. The RIAA has a decades-long history of screwing over actual artists at basically every opportunity.
... competitors are on equal footing...
Another completely ridiculous claim. The "equal footing" that the RIAA is talking about here is forcing online platforms to all conform to one particular business model -- a totally unsustainable one where an insane percentage of revenue all flows back to the labels (not the artists) despite the fact that the labels fought these platforms and did absolutely nothing to help make them a success. The whole "equal footing" or "level playing field" is really just the RIAA demanding a particular business model and saying that any innovation in business models (even if they're better for actual artists) should not be allowed, unless the RIAA gives its okay. It's basically the "we don't want any innovation" stance.
Those who have an interest in music could come together to figure out solutions.
This is hilarious. For decades, the RIAA has been the major obstructionist party here. It was the internet industry that dragged the RIAA kicking and screaming into the 21st century while people like Marks focused on suing music fans. To now claim that he just wants to "come together to figure out solutions" is laughable. The only "solutions" the RIAA wants are ones where it does none of the work, and it gets all of the money.
While litigation can be an important tool, it often takes a long time and the results are unclear.
Translation: we sued a bunch of fans and that made everyone hate us. Also, we sued a bunch of platforms and lost badly because the law isn't actually what we want it to be.
Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.
This is just a repeat of the opening line, basically. It's the RIAA saying that the internet industry needs to solve all of its problems, and what it means is that the recording industry doesn't want to budge an inch, doesn't want to do anything, and just wants the internet companies to give tons of money to the labels and to wave a magic wand and make piracy disappear.

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Posted on Techdirt - 4 January 2017 @ 8:30am

Confirmed Horrible Person James Woods Continues Being Horrible In 'Winning' Awful Lawsuit To Unmask Deceased Online Critic

from the to-the-bowels-of-hell dept

So... Hollywood actor James Woods continues to make it clear that he's a complete and total asshole. As you may or may not recall, last year, Woods sued an anonymous Twitter user who went by the name Abe List, for mocking Woods on twitter. Specifically, List called Woods "clownboy" and later tweeted: "cocaine addict James Woods still sniffing and spouting." Woods sued Abe List claiming that the "cocaine addict" statement was defamatory, and (the important part) demanding the name and identity of Abe List. The fact that Woods, himself, has a long (long, long, long) history of spouting off similarly incendiary claims to people on Twitter apparently wasn't important. Here is an example of a Woods tweet that seems quite similar to the one he, himself, claimed was defamatory:

Ken "Popehat" White agreed to defend Abe List, along with lawyer Lisa Bloom. And while the judge initially (and, in our opinion, correctly) found Woods' lawsuit to be nothing more than a SLAPP suit, the judge eventually changed his mind. The case was moving along... and then something bizarre happened. Abe List (whoever that is) died (unexpectedly, apparently). Woods then took to Twitter to obnoxiously gloat about "winning" the case, leaving out the fact that the case was ending due to the death of the defendant. After people pointed out to Woods how ridiculous it was that he was gloating over a "victory" when someone had died, the ever classy Woods, gloated some more, first saying he hoped that List died "screaming my name. in agony" and then later saying: "Learn this. Libel me, I'll sue you. If you die, I'll follow you to the bowels of Hell. Get it?"

Woods later deleted those tweets, but as I said at the time, the whole thing is sickening. Even if Abe List was trolling Woods, happily celebrating someone's death because they once made fun of you on Twitter seems to suggest you deserve to be made fun of on Twitter. Constantly.

To then add insult to death, Woods and his lawyers continued to push forward with the lawsuit, demanding to still uncover the name of Abe List. Woods' lawyers basically tried to argue that because they didn't know Abe List's identity, it was possible that Ken White was lying that List had died. They argued that they needed White to disclose Abe List's real name to prove that List was really dead:
Critically, although White claims that AL is deceased, he has refused to provide any evidence whatsoever substantiating this claim. Moreover, when Woods' counsel reasonably requested that White at least provide the identity of his now-purportedly-deceased client -- a fact which would be necessary in order to confirm AL is actually deceased -- White refused.
Emphasis in the original. And, of course White refused. The whole point of the lawsuit appeared to be to reveal Abe List's real identity, which he has every right to protect under the First Amendment. White was hired to protect that identity, so for Woods' lawyer to pretend that it's so horrific that White would refuse to reveal the name is ridiculous -- but apparently par for the course for Woods and his "to the bowels of hell" ethos. Even more ridiculous, Woods and his lawyers demanded White be sanctioned for refusing to give up the name.

White responded by highlighting how ridiculous all this is, and how it's pretty clear that Woods is just looking to harass and intimidate his critics. In his reply, White even included screenshots of the Tweets above, showing how Woods is gloating about all of this.
When defendant (Abe Doe)... died and his personal representative dismissed his appeal of this Court's denial of his anti-SLAPP motion, Plaintiff James Woods gloated and celebrated his death, expressing his hope that Mr. Doe died "screaming [Woods' name."

Now, Mr. Woods seeks to compel Mr. Doe's attorney, non-party Kenneth P. White ("Mr. White"), to disclose Mr. Doe's identity, and to sanction Mr. White almost $10,000 for asserting the attorney-client privilege in response to his questions.... Mr. Woods asserts that his purpose is legitimate and that he does not seek to harass or abuse Mr. Doe's survivors. But Mr. Woods' own public statements give the lie to that assertion. Mr. Woods wants to do just what he said he wants to do: publicly harass and vilify a dead man and his family.

The Motion is meritless, and is a transparent attempt to abuse the discovery process to exact twisted revenge by harassing Mr. Doe's family. First, contrary to Mr. Woods' arguments, Mr. White expressly premised his refusals to answer questions on one ground -- the attorney-client privilege. That assertion was correct. Because the entire purpose of Mr. White's representation of Mr. Doe was to protect Mr. Doe's identity, and because Mr. White only learned Mr. Doe's identity through confidential communications, Mr. Woods cannot force Mr. White to disclose it.
Unfortunately (and... ridiculously), the court has now ruled that White needs to turn over List's real name (along with the details of where he died and the name of his heirs) within 10 days. The court rejected the request for sanctions against White, and also some other information that White insisted was also protected information (such as whether or not List had other Twitter accounts as well).

This is unfortunate, and a travesty. In response, White provided the following statement:
Sometimes in litigation the bad guys win. This was such a day. I remain very proud to have fought for Abe Doe, and proud to have opposed this vexatious case by James Woods, a petulant bully whose Twitter conduct shows he can dish it out but can’t take it. I’m pleased that the court rejected his demand to compel me to answer several other questions, and that it also rejected his frivolous demand for sanctions.
Woods' lawyer, Michael Weinsten, on the other hand, made the following absolutely ridiculous statement:
This is a significant step forward in our ability to recover the millions in damages caused by John Doe's cowardly Tweet. It also sends a message to others who believe they can hide behind the anonymity of online social media to falsely accuse public figures of heinous behavior without recourse to themselves.
First of all, the idea that List's tweet caused "millions in damages" is so laughable as to make you wonder if Weinsten is also on drugs (note: that's a joke and rhetorical hyperbole...). First off, List's original tweet was a reply to someone else's tweet, meaning that only very, very, very few people saw it, because only those who followed both Abe and Woods would have seen it. Second, it would suggest that such a tweet actually hurt Woods' reputation. And I'd posit that it seems a hell of a lot more likely that Woods' own actions, such as gloating over List's death, did significantly more to harm his own reputation than any silly hyperbolic tweet from an anonymous Twitter user. Finally, List didn't "accuse" Woods of "heinous behavior." He did what people -- including Woods -- regularly do on Twitter, which is make fun of other people. To argue that Woods needs special protection from a Twitter troll makes you wonder what kind of special snowflake Woods thinks he is, that no one should ever be able to mock him on Twitter, while he is apparently free to mock anyone he likes.

And, of course, on Tuesday evening, Woods took to Twitter once again to gloat over the fact that he, that special snowflake whose itty bitty feelings were hurt by someone mocking him on Twitter, is able to stomp on the grave of a dead man. He tweeted a bunch of headlines, declaring "victory" despite the fact his victory spits on the First Amendment, and then made this idiotic analogy:
Huh? I recognize that he's trying to argue that you go after "the big dog" so that others won't pester you, or whatever, but he literally went after a no name internet troll -- for doing nearly identical things to things that Woods himself had done. He also tries to defend the "damages" claim by saying that to be a "lead" in a film you have to be insured, and claims of being a drug addict can make you uninsurable. And, sure... but what fucking insurance company uses anonymous trolls tweeting obvious jokes on Twitter to determine if lead actors are drug addicts? The answer? NONE. Woods is full of shit (again: rhetorical hyperbole, James).

This case is an unfortunate travesty of justice. List was, undoubtedly, something of an internet troll himself, regularly pushing many people's buttons (in fact, when List died, White posted about how List regularly attacked White's political beliefs as well). But I don't care how annoyed a troll might make you feel, or how hurt your special feelings are, someone like Woods (who regularly mocks people he calls "snowflakes" online -- a term often used to mock those who can't take any criticism) shouldn't get to stomp all over the grave of someone just because they made him feel bad.

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Posted on Techdirt - 4 January 2017 @ 3:23am

Aussie Productivity Commission Doubles Down On Fair Use And Serious Copyright & Patent Reform

from the good-for-them! dept

Back in May we were both surprised and delighted by a thorough and detailed report from the Australian Productivity Commission noting that copyright was broken and harming the public, and that it needed to be fixed -- with a core focus on adding fair use (which does not exist in Australia). It similarly found major problems with the patent system. It was a pretty amazing document, full of careful, detailed analysis of the problems of both the copyright and patent systems -- the kinds of things we discuss all the time around here.

Of course, it was only a "preliminary" report, and that left it open that lobbyists would swoop in and destroy the report before it became finalized. But that does not appear to have happened. The final report was released right before Christmas (the document says September 23rd on it, because that's the date it was sent to the government, but it was only just released to the public -- and since they released it under a CC-BY license, we've reposted the whole thing below as well). It's a big document, clocking in at 766 pages. But the "key points" that the Productivity Commission released give you a pretty good idea of where they come down on a variety of issues -- and it's very much in line with the general thinking here at Techdirt:

  • Australia’s intellectual property (IP) arrangements fall short in many ways and improvement is needed across the spectrum of IP rights.
  • IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:
    • foster creative endeavour and investment in IP that would not otherwise occur
    • only provide the incentive needed to induce that additional investment or endeavour
    • resist impeding follow–on innovation, competition and access to goods and services.
  • Australia’s patent system grants exclusivity too readily, allowing a proliferation of low-quality patents, frustrating follow–on innovators and stymieing competition.
    • To raise patent quality, the Australian Government should increase the degree of invention required to receive a patent, abolish the failed innovation patent, reconfigure costly extensions of term for pharmaceutical patents, and better structure patent fees.
  • Copyright is broader in scope and longer in duration than needed — innovative firms, universities and schools, and consumers bear the cost.
    • Introducing a system of user rights, including the (well-established) principles–based fair use exception, would go some way to redress this imbalance.
  • Timely and cost effective access to copyright content is the best way to reduce infringement. The Australian Government should make it easier for users to access legitimate content by:
    • clarifying the law on geoblocking
    • repealing parallel import restrictions on books. New analysis reveals that Australian readers still pay more than those in the UK for a significant share of books.
  • Commercial transactions involving IP rights should be subject to competition law. The current exemption under the Competition and Consumer Act is based on outdated views and should be repealed.
Separately, in the "key points" section they highlight just how badly "international agreements" hinder smart copyright and patent policy -- which is quite interesting, given that Australia has been very, very active in negotiations on the IP section in the TPP, as well as in the awful ACTA negotiations from a few years ago.

I'm guessing most people won't read through the whole document -- but it's really got some great things in there. Unlike so many government reports on copyright issues, this one is careful and methodical, and actually establishes a clear framework for analyzing copyright and patents -- both the benefits and faults. It also includes details of all of the evidence and data that it used. Unlike so many other government reports on copyright and patents, this one is clearly evidence-based rather than faith-based. Too many seem to work under the assumption that copyright and patents are "good" and therefore more must be "better." Thankfully, this report is incredibly detailed and thorough, and focuses on all players in the ecosystem, including the public, whom these systems are supposed to benefit.

Honestly, there are great quotes and points on almost every page, and I could spend all day clipping out key quotes, but feel free to just dive in yourself and flip through the document below. It's too bad that the US government is too tied to specific legacy industries to produce a document as comprehensive and useful as this one.

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Posted on Techdirt - 3 January 2017 @ 2:44pm

Tesla Gave Up Its Patents, But People Are Freaked Out That Faraday Future Put Its Own Into A Separate Company

from the a-tale-of-two-electric-car-startups dept

Over the last couple of years, there's been a tremendous amount of attention placed on upstart electric car maker, Faraday Future. The company, that originally had very secretive backers (later revealed to extraordinarily wealthy Chinese investors), sprung out of nowhere a year ago and was quickly touted as an expected competitor to Tesla. What a difference a year makes. In the last few weeks, there have been a bunch of reports about how the company is flailing. It kicked off with a pretty damning Buzzfeed story about serious problems at the company, including unpaid bills and a bizarre situation involving having workers focus on designing another car for a totally different company owned by their major investor:

In December 2015, employees at Faraday’s headquarters in Gardena, California, received a mandate from Jia: Design a prototype LeEco car that could be shown off publicly at a spring event in Beijing. According to several former employees, some of Faraday’s designers were pulled off of their core projects to work on the vehicle. And in April 2016, LeEco unveiled a sleek, electric sedan called LeSee. On stage, Jia, who has been outspoken about his plans to usurp Tesla, touted LeSee as a LeEco creation as the white sedan glided across the stage to park in a mock garage. The audience couldn’t see that the seemingly self-driving car was in fact being piloted from backstage via remote control.

Back in California, some Faraday employees were unsettled, sources told BuzzFeed News. Though they’d designed the car for LeEco per Jia’s request, they were not given credit for doing so, and the company didn’t receive payment in exchange. And the development of the LeSee had distracted them from work on Faraday’s own vehicles. “[The LeSee project] certainly added pressure onto the design team. It crunched timelines,” a former employee with knowledge of the project told BuzzFeed News. “It certainly made getting deadlines met that much more difficult.” Faraday declined to comment on the project and the specifics of its relationship with LeEco. LeEco declined to comment on the project as well. In a statement to BuzzFeed News, LeEco said that the two companies are “strategic partners” by “bringing together global resources in several areas.”
The Verge then did its own big report on problems at Faraday Future, which included the somewhat bizarre claim that Faraday Future's "intellectual property" was owned by... an entirely different company:
In addition, these sources revealed to The Verge that the company’s intellectual property is not owned by FF, but by a separate entity named FF Cayman Global, a revelation which raises questions about Faraday Future’s relationship with its investors and suppliers, and could further endanger the company’s success.
Later in the article it notes:
According to former employees, FF is in effect not one, but two companies, with a separate entity based out of the Cayman Islands just for FF’s intellectual property. “If you’re an investor, you’re fucked,” one ex-executive said. “The company doesn’t own the IP.”
And that resulted in other publications, like Business Insider putting out an entire article freaking out about the idea that "Faraday Future doesn't own its intellectual property," as if that was the worst thing in the world. It got another quote from another anonymous ex-employee saying more or less the same thing:
"Some of the reasons some of us left was because we were afraid that all of the work that’s being done in the US, there is no proper corporate structure or legal entity structure," the employee told Business Insider. "The feeling we had was that the IP [intellectual property] was not protected and if and when Faraday goes under, these guys would just pick up all the IP and all these other people in the US would be out of a job."
That's all interesting... but what's amazing is that in all of these discussions about how Faraday Future "doesn't own its intellectual property" absolutely no one seems to point out the fact that the company that everyone compares it to, Tesla, famously dumped all its patents into the public domain and told anyone to go ahead and use them. That seems like a relevant point to make in articles about this upstart competitor and its "intellectual property." Of course, it's possible that the articles could mean something else when it says "intellectual property" -- such as trademarks -- but it seems unlikely that the trademarks for a flailing company that is unlikely to ever get anything on the market are that valuable.

The whole story, and the ignoring of Tesla's stance on patents... is just strange. It is true that sometimes failing companies hang onto their patents as a sort of last ditch effort to extract some return for their investors in a patent fire sale. But if you've reached that point, things have already gone way too far south to really matter. Tesla has shown that it can build a pretty damn successful company without relying on "intellectual property." It seems that people should stop freaking out that Faraday Future may have dumped its patents into some offshore company, and focus on the company's real problems -- like the fact that its execs are racing out the door as fast as possible.

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Posted on Techdirt - 3 January 2017 @ 1:07pm

Our Unfortunate Annual Tradition: A Look At What Should Have Entered The Public Domain, But Didn't

from the this-is-cultural-theft dept

Each year, at the beginning of January, we have the unfortunate job of highlighting the works that were supposed to be entering the public domain on January 1st, but didn't (in the US at least) thanks to retroactive copyright term extension. As we've noted, copyright term extension makes absolutely no sense if you understand the supposed purpose of copyright. Remember, the idea behind copyright is that it is supposed to be an important incentive to get people to create a work. And the deal is that in exchange for creating the work, the copyright holder (who may not be the creator...) is given an exclusive monopoly on certain elements of that work for a set period of time, after which it goes into the public domain. That means that any work created under an old regime had enough incentive to be created. Retroactively extending the copyright makes no sense. The work was already created. It needs no greater incentive. The only thing it serves to do is to take away works from the public domain that the public was promised in exchange for the original copyright holder's monopoly. It's a disgrace.

As always, the Center for the Study of the Public Domain at Duke University has the most comprehensive look at what works should have entered the public domain this week, but didn't, due to the scam of copyright term extension that is nothing less than taking away the agreed upon rights of the public.

What books would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

  • Harper Lee, To Kill a Mockingbird
  • John Updike, Rabbit, Run
  • Joy Adamson, Born Free: A Lioness of Two Worlds
  • William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany
  • Friedrich A. Hayek, The Constitution of Liberty
  • Daniel Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties
  • Arthur M. Schlesinger, Jr., The Politics of Upheaval: The Age of Roosevelt
  • Dr. Seuss, Green Eggs and Ham and One Fish Two Fish Red Fish Blue Fish
  • Scott O’Dell, Island of the Blue Dolphins
  • John Barth, The Sot-Weed Factor
  • Jean-Paul Sartre, Critique de la raison dialectique
[....]

Consider the films and television shows from 1960 that would have become available this year. Fans could share clips with friends or incorporate them into homages. Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Here are a few of the movies that we won’t see in the public domain for another 39 years.
  • The Time Machine
  • Psycho
  • Spartacus
  • Exodus
  • The Apartment
  • Inherit the Wind
  • The Magnificent Seven
  • Ocean’s 11
  • The Alamo
  • The Andy Griffith Show (first episodes)
  • The Flintstones (first episodes)
[....]

What 1960 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the great music from this year, January 1, 2017 would have been a rocking day for you under earlier copyright laws. Elvis Presley’s hit song It’s Now or Never (Wally Gold, Aaron Schroeder) would be available. So would Only the lonely (know the way I feel) (Roy Orbison, Joe Melson), Save the Last Dance for Me (Mort Shuman, Jerome Pomus), and Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikini (Paul J. Vance, Lee Pockriss). Your school would be free to stage public performances of the songs from the musical Camelot (Alan Jay Lerner, Frederick Loewe). Or you could set a video to Harry Belafonte’s Grizzly Bear (Harry Belafonte, Robert DeCormier, Milt Okun) from Swing Dat Hammer. Today, these musical works remain copyrighted until 2056.
The analysis goes on to cover important scientific work, locked up behind a paywall and not available to the public. And it also notes that many works from 1988 would also be available for the public domain, under the old system of having a copyright for 28 years, and then being renewed for 28 years. Many, many copyright holders in the past chose not to renew after 28 years, so many works from 1988 would likely have entered the public domain.

Of course, some countries are at least marginally better off. Another site, the Public Domain Review highlights a bunch of works that are now in the public domain in other countries. For countries that have a "life + 70" system, that means any creator who passed away in 1946 -- including Gertrude Stein, H. G. Wells, W. C. Fields and Alfred Stieglitz. For countries that have a "life + 50" system, it means the works of any creator who passed away in 1966 -- which includes Walt Disney, Buster Keaton, Evelyn Waugh and Lenny Bruce.

But, of course, none of that applies to the US. Even though we're now under a "life + 70" system, for any work published between 1923 and 1977 (and where the 28-year renewal wasn't missed), our lovely Congress decided to ignore the "life + nonsense" and just slap a 95-year term on the work (it was originally 75 years, but, of course, the wonders of retroactive copyright term extension made it 95 years). And that's why we never see any new works entering the public domain in the US and haven't for years.

For those who actually understand and recognize the importance and value of a thriving public domain, this continues to be both a farce and an insult to culture.

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Posted on Techdirt - 3 January 2017 @ 11:45am

Malcolm Gladwell's Ridiculous Attack On Ed Snowden Based On Weird Prejudice About How A Whistleblower Should Look

from the you-don't-get-the-whistleblowers-you-want dept

There was a time when I was a fan of Malcolm Gladwell. He's an astoundingly good story teller, and a great writer. But he's also got a pretty long history of... just being wrong. Over the years, Gladwell's willingness to go for the good story over the facts has become increasingly clear. Famously, Steven Pinker ripped Gladwell's serial problems many years ago, but it hasn't really stopped Gladwell since then. If you've ever quoted "the 10,000 hour rule" or suggested that someone can become an expert in something if they just spend 10,000 hours doing it, you've been fooled by Gladwell. Even the guy whose one study Gladwell based the idea on loudly debunked the claim, and just this past year put out his own book that is basically trying to rectify the false beliefs that have spread around the globe from people believing Gladwell's incorrect spin.

So, suffice it to say I was already skeptical of Gladwell's recent piece attacking Ed Snowden as not being a "real" whistleblower. But the piece is much, much worse than even I expected. The short, Gladwellian-style summary of it might be: real whistleblowers have to look the part, and they need to be part of an Ivy League elite, with clear, noble reasons behind what they did. Here's how Gladwell describes Daniel Ellsberg, the guy who leaked the Pentagon Papers, and to whom Gladwell has given his stamp of approval as a "Real Whistleblower™"

Ellsberg was handsome and charismatic. He had served in the Marine Corps as a company commander in Korea. He did his undergraduate and graduate studies at Harvard, where he wrote a Ph.D. dissertation on game theory and collaborated with Thomas Schelling, who went on to win a Nobel Prize. He took a senior post in McNamara’s Defense Department, represented the State Department in Vietnam, and had two stints as a senior intelligence analyst at the rand Corporation. Ellsberg knew about the Pentagon Papers because he was a member of the select team that wrote them, working on the section dealing with the very early nineteen-sixties. Before he approached the Times, he went to the Senate, where he tried to get someone to release the documents formally and hold public hearings. He walked the halls and dropped in on people he knew. “I had Senator Mathias in mind, and Senator Mike Gravel,” who, he notes, had “written me a letter congratulating me on my New York Review of Books article,” about the bombings in Laos. (It seems safe to say that the subject, verb, and object here—“Senator,” “written,” “New York Review of Books article”—may never again appear together in a sentence.)
See? To Gladwell, Ellsberg "fits the part." But that's not how whistleblowing often works. And here's how Gladwell describes Snowden, who apparently doesn't look the part:
But Snowden did not study under a Nobel Prize winner, or give career advice to the likes of Henry Kissinger. He was a community-college dropout, a member of the murky hacking counterculture. He enlisted in the Army Reserves, and washed out after twenty weeks. He worked at the C.I.A. for a few years and left under a cloud. He learned about the innermost secrets of American intelligence-gathering and policy not because he was personally involved with that intelligence-gathering or policymaking but because he was a technician who helped service the computer systems that managed these things. The élites, Snowden once said, “know everything about us and we know nothing about them—because they are secret, they are privileged, and they are a separate class.” Had Snowden been a whistle-blower in 1967, at the launch of the Pentagon Papers, he would have blown the whistle on Daniel Ellsberg. The whistle-blower as insider has become the whistle-blower as outsider. That is a curious fact, and, as we come to terms with the consequences of Snowden’s actions, it may be an underappreciated one.
Gladwell's gentlemanly view of whistleblowing as an elite pasttime is historical fiction. It's not how whistleblowing usually works, and completely ignores how the government has regularly gone after and punished whistleblowers time after time. Gladwell, somewhat ridiculously, creates a fictional composite he calls "Daniel Snowberg" and suggests if the following had happened, that would have made Snowden an acceptible whistleblower:
Imagine a young man called Daniel Snowberg. He has a doctorate in international relations, and once spent a summer interning at the Electronic Frontier Foundation, the think tank specializing in digital freedom. He gets a job as an analyst at the National Security Agency, and while there he runs across a copy of the infamous Foreign Intelligence Surveillance Court (fisc) authorization, under Section 215 of the Patriot Act. This is the order that led Verizon to hand over its telephone records to the N.S.A.

The order troubles him. The Patriot Act allows the N.S.A. to obtain phone records and the like if it provides “a statement of facts showing that . . . the tangible things sought are relevant to an authorized investigation.” But this isn’t a search specific to an investigation. It appears to be a fishing expedition. He surreptitiously copies the authorization: it’s not that long. He sends it to his old colleagues at the Frontier Foundation. They share his alarm: the legal opinion in the fisc order looks unconstitutional to them. They set up a meeting with Ron Wyden, the ranking Democrat on the Senate Intelligence Committee. Wyden, too, is troubled. He encourages them to leak it to the Washington Post. And they do. That is the leaker as insider.

Edward Snowden took a different path. He used a Web crawler (a search engine preprogrammed with key words) to roam through the N.S.A. files, “touching” as many as 1.7 million of them. Among those files was the fisc order. But Snowden also accessed, and ultimately passed on to journalists, thousands of files concerning activities that had nothing to do with domestic surveillance.
But that final paragraph also bullshit and a misleading myth pushed by the intelligence community, and has since been debunked. Even James Clapper admitted two and a half years ago that Snowden didn't take 1.7 million documents, and that it was a much more curated list of files that he felt actually showed serious problems. And, while Gladwell keeps trying to suggest that Snowden "flooded" documents, rather than "leaking" them. That's ridiculous.

As the EFF has written in response to Gladwell's piece, Gladwell seems to be troubling rewriting history to suit his narrative, rather than actually stating facts, noting that contrary to Gladwell's claim, both Ellsberg and Snowden did essentially the same thing -- taking a large number of documents but not all that they had access to -- to the press, and allowing them to sort through what was newsworthy.

Also, the EFF notes that the "Daniel Snowberg" hypothetical is ridiculous, because that description matches exactly what happened with Mark Klein, the former AT&T tech who blew the whistle on the NSA's upstream tapping of AT&T backbone cables. And it didn't work the way Gladwell thinks it would work:
Mr. Klein was in tech support at AT&T. Like Snowden, he didn’t go to Harvard, pal around with Kissinger, or serve in the intelligence services. But he had real documents and direct testimony demonstrating that, at the behest of the NSA, AT&T was (and still is) making illegal copies of Internet traffic through key network junctures. This includes the juncture in a building on Folsom Street in San Francisco. After copying, searching is conducted through the full content of much of that information, especially messages going to and from abroad but including millions of Americans' communications. We now know that the government calls this program “UPSTREAM,” and calls its searching through the actual content of messages “about” searching, but we didn’t know these names in 2006. This was a big, new program with profound legal and constitutional implications. It deserved (and still deserves) serious public and judicial consideration.

So what happened? Mr. Klein went to the press before coming to EFF, but a Los Angeles Times story about his discoveries was famously spiked by Director of National Intelligence John Negroponte who intimidated now New York Times Executive Editor Dean Baquet out of running it. Finally, the New York Times did publish a story but the government just kept issuing carefully worded denials.

During this time Mr. Klein also came to EFF and we tried to do what Ellsberg did. We approached several U.S. senators about the information, including Mr. Klein’s own Senator Dianne Feinstein. We were, to put it kindly, strung along. We never even got a meeting with a senator. EFF also filed a lawsuit against AT&T based on Mr. Klein’s information, but we had to keep the actual evidence under seal for a long time, making it easy for the government to largely ignore us and, when pushed, dismiss Mark’s claims as unfounded since he was just a lowly technician.

We tried another part of the “Ellsberg” strategy. We took Mark to Washington to try to increase the chance of Congressional assistance as well as to try to bring more public attention to what his evidence revealed. We even managed to have a press briefing on Capitol Hill and a few meetings with staffers.

But we couldn’t get a hearing on Mark’s whistleblower information, couldn’t keep the press on it, and couldn’t penetrate the assumptions and elitist narrative about whistleblowers.
But, honestly, beyond the ridiculous hypothetical, the pure insanity of claiming that Snowden can't be a whistleblower because he isn't elite enough, and the factually incorrect statements (which were shown to be factually incorrect years ago), the best evidence that Malcolm Gladwell is (once again) full of shit comes from none other than Daniel Ellsberg himself who explained how Snowden made the right call in doing what he did, and happily comparing Snowden to himself:
Yet when I surrendered to arrest in Boston, having given out my last copies of the papers the night before, I was released on personal recognizance bond the same day. Later, when my charges were increased from the original three counts to 12, carrying a possible 115-year sentence, my bond was increased to $50,000. But for the whole two years I was under indictment, I was free to speak to the media and at rallies and public lectures. I was, after all, part of a movement against an ongoing war. Helping to end that war was my preeminent concern. I couldn’t have done that abroad, and leaving the country never entered my mind.

There is no chance that experience could be reproduced today, let alone that a trial could be terminated by the revelation of White House actions against a defendant that were clearly criminal in Richard Nixon’s era — and figured in his resignation in the face of impeachment — but are today all regarded as legal (including an attempt to “incapacitate me totally”).

I hope Snowden’s revelations will spark a movement to rescue our democracy, but he could not be part of that movement had he stayed here. There is zero chance that he would be allowed out on bail if he returned now and close to no chance that, had he not left the country, he would have been granted bail. Instead, he would be in a prison cell like Bradley Manning, incommunicado.

He would almost certainly be confined in total isolation, even longer than the more than eight months Manning suffered during his three years of imprisonment before his trial began recently. The United Nations Special Rapporteur for Torture described Manning’s conditions as “cruel, inhuman and degrading.” (That realistic prospect, by itself, is grounds for most countries granting Snowden asylum, if they could withstand bullying and bribery from the United States.)
Snowden is every bit the "whistleblower" that Ellsberg was -- and perhaps moreso, seeing as he did what he did knowing (unlike Ellsberg) that he needed to leave his home country to do so, and that he might never return. Gladwell tells a good story, but it should be left on the fiction pages.

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Posted on Techdirt - 3 January 2017 @ 9:37am

Congressman Goodlatte Decides To Refill The Swamp By Gutting Congressional Ethics Office... But Drops It After Bad Publicity

from the no-lobbyists-left-behind dept

Update: So... literally a minute before this post was about to go live came the news that House Republicans have magically dropped this plan, after it received a ton of negative press overnight, and had tons of inbound phone calls and, yes, even our President Elect sort of (but not really) came out against the plan. While the Bloomberg article above credits Trump for this, if you read what he actually said, he does call the Office of Congressional Ethics "unfair," he just says this isn't a priority now (perhaps meaning the following plan will come back in the future). Since this is still a possibility, here's the original post.

Well, we're into a new year, and the promised "swamp draining" in Washington DC continues to move in the other direction. Rep. Bob Goodlatte (whose name you may remember from the fact that he's leading the charge on copyright reform (but who has a history of being terrible on copyright), or perhaps from the fact that he's also bad on surveillance) has made the surprise move of completely gutting the Office of Congressional Ethics, and basically taking away its independence from Congress.

The OCE was created in 2008 in response to the Jack Abramoff scandal, and some other Congressional corruption scandals, that resulted in three members of Congress going to jail. The OCE was an independent office that was set up to investigate Congressional ethics and corruption violations. Not surprisingly, not everyone in Congress was thrilled about having an independent office investigating them, so Goodlatte seems to have made sure that won't be a problem -- and he did so without any warning, without any debate and even against the wishes of the leadership of his own party:

The move to effectively kill the Office of Congressional Ethics was not made public until late Monday, when Representative Robert W. Goodlatte, Republican of Virginia and chairman of the House Judiciary Committee, announced that the House Republican Conference had approved the change. There was no advance notice or debate on the measure.

The surprising vote came on the eve of the start of a new session of Congress, where emboldened Republicans are ready to push an ambitious agenda on everything from health care to infrastructure, issues that will be the subject of intense lobbying from corporate interests. The House Republicans’ move would take away both power and independence from an investigative body, and give lawmakers more control over internal inquiries.

It also came on the eve of a historic shift in power in Washington, where Republicans control both houses of Congress and where a wealthy businessman with myriad potential conflicts of interest is preparing to move into the White House. Continue reading the main story

Speaker Paul D. Ryan and Representative Kevin McCarthy of California, the majority leader, spoke out during the meeting to oppose the measure, aides said on Monday night.
Goodlatte, has put out a somewhat ridiculous statement defending the move, claiming (incorrectly) that this strengthens OCE's mission. Of course, then he also notes that it "improves upon the due process rights" of members of Congress. But experts note that all it's really doing is letting Congress take control over the previously independent organization, and giving Congress the power to kill investigations. I guess that's one way to "improve due process rights." But, really, was there really a problem with the "due process rights" of members of Congress being investigated for corruption and ethics violations?

In fact, Buzzfeed does a nice job showing all of the ways in which this does the exact opposite of what Goodlatte claims concerning "strengthening" OCE's mission:
If you can't read that, here's what it says:
  1. The OCE should no longer be independent. Insteads, it will be under the House's Committee on Ethics, which is run by members of Congress.
  2. The office will no longer be able to accept anonymous tips from whistleblowers.
  3. The ethics office must stop any investigation if the House ethics committee tells them to.
  4. The ethics office cannot investigate any tips of misconduct that took place before Jan. 3, 2011
  5. The office can no longer talk about its findings -- even hire a spokesperson.
  6. OCE cannot investigate any criminal cases or turn allegations of corruption over to law enforcement.
That, uh, does not sound at all like "strengthening" OCE's mission. It sounds like the exact opposite. In other news, Rep. Goodlatte's statement over this is a blatant lie.

Politico has some details of how some members who had been investigated by the OCE supported gutting it, claiming that they felt unfairly targeted -- even though all of the examples given resulted in OCE deciding there were no ethics violations. It's entirely possible that OCE may have been annoying for Congress to deal with, but no one seems to have presented any evidence that it ever came to conclusions that were incorrect or unfair -- just that their investigations were annoying. And... so what? Congress should be under a microscope when it comes to ethics and corruption. The whole idea that Congress itself can just unilaterally undermine its own oversight is pretty ridiculous -- especially at a time when so few trust Congress, and so many believe it to be so corrupt.

Meanwhile, in totally unrelated news, Rep. Goodlatte famously dined with the MPAA right after a hearing on copyright reform, and MPAA boss Chris Dodd has told every MPAA studio that they need to donate at least $40k each to Rep. Goodlatte. Again, I'm sure that's a total coincidence and completely unrelated to the story above.

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Posted on Techdirt - 3 January 2017 @ 8:29am

Whether Or Not You Believe Russia Interfered In The Election, We Should All Be Worried About Escalation Based On Secret Info

from the be-concerned dept

So, we just wrote about Obama administration's tepid response to claims that Russians "interfered" with the Presidential election. In that post, we noted our concerns about the fact that we seem to be escalating a situation based on claims where we're not allowed to see any of the actual evidence. I've seen a bunch of people arguing that anyone who won't automatically accept that Russia interfered in the election should be dubbed either Putin supporters or, at the very least, "useful idiots" but we should be very, very careful about where this leads. I certainly think that there's a tremendous possibility that Russian forces did intend to interfere with our election, but I'd certainly like to see some actual evidence -- and the "evidence" provided so far shows no such thing.

And this should scare you. Not because it means that anyone is lying, but because it's setting the stage for very dangerous things. If we're setting the precedent that the US government can escalate situations based on purely secret knowledge, what's to stop them from doing so over and over again? Put another way: for those who dislike Trump, but are happy about the White House calling out and sanctioning Russia, how will you feel when President Trump makes similar claims about some other country (perhaps one blocking a new Trump hotel?), and proceeds to issue US government sanctions on that country -- but without releasing any actual evidence of wrongdoing beyond "government agencies say they did bad things." Won't that be concerning too?

Matt Taibbi, over at Rolling Stone, has an excellent article comparing this to when we started the war in Iraq -- noting the similarities, in that the government (and the press) kept insisting that because certain government agencies said something ("Iraq has WMDs"), it must be true:

This dramatic story puts the news media in a jackpot. Absent independent verification, reporters will have to rely upon the secret assessments of intelligence agencies to cover the story at all.

Many reporters I know are quietly freaking out about having to go through that again. We all remember the WMD fiasco.
And, as he later notes:
The problem with this story is that, like the Iraq-WMD mess, it takes place in the middle of a highly politicized environment during which the motives of all the relevant actors are suspect. Nothing quite adds up.

If the American security agencies had smoking-gun evidence that the Russians had an organized campaign to derail the U.S. presidential election and deliver the White House to Trump, then expelling a few dozen diplomats after the election seems like an oddly weak and ill-timed response. Voices in both parties are saying this now.
And this is a big part of the problem. Because none of the evidence is public, beyond just statements of attribution, we're left with no way to know what are actually reasonable responses. There's a big spectrum of possibilities that might be described as "Russian interference" from merely helping some independent hackers release information (as some have charged) to using actual intelligence agencies to run a serious hacking operation (as others have charged), all the way up to actively tampering in voting systems (which some in the public now claim, but which no official has suggested actually happened).

The problem isn't so much a question of whether or not the Russians did something. Maybe they did. It certainly wouldn't surprise me at all if they did. At the very least, Russian officials seem to be laughing at everything going on now. The real issue is the danger of having the force and power of the US government responding to "actions" by stating things as true, without providing any evidence to back it up. In that space, a lot of mischief can and will occur. Looking back at the invasion of Iraq based on faulty reports is just one example. We should be learning from that lesson, not repeating it.

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Posted on Techdirt - 3 January 2017 @ 3:25am

Now Italy Wants To Make 'Fake News' Illegal

from the but-can-you-define-it? dept

Over and over again, we've talked about the ridiculousness of the moral panic around so-called "fake news" -- a broad and somewhat meaningless term now used to describe just about anything from actual made-up stories, to news articles that have a small factual error, to those with a "spin" that someone disagrees with. And, as we warned, the panic of "fake news" is leading to widespread calls for censorship. A few weeks ago, we wrote about how German officials were supporting a plan to criminalize "fake news" and now Italy wants to join in on the fun. In an interview with the country's antitrust chief, Giovanni Pitruzzella, he argued that it's really time to crack down on the internet, with government wielding the censorship power over whatever it calls "fake news."

“Post-truth in politics is one of the drivers of populism and it is one of the threats to our democracies,” Pitruzzella said. “We have reached a fork in the road: we have to choose whether to leave the internet like it is, the wild west, or whether it needs rules that appreciate the way communication has changed. I think we need to set those rules and this is the role of the public sector.”

Pitruzzella argued tackling fake news should not be left up to social media companies, but instead be tackled by the state through independent authorities with the power to remove fake news and impose fines, coordinated by Brussels, similar to the way the EU regulates competition.
Any time you hear of a plan for the government to be able to remove news stories or impose fines for reporting, you should get very, very worried. That is a recipe for censorship. Yes, blatantly made-up stories are a problem -- but not one that should be dealt with by expanding the tools of censorship in a way that will be abused. We need to teach better media literacy and get more people to understand how to read critically and to do research. Putting tools to censor and fine journalists in the hands of government will inevitably lead to that power being abused. Someone will report on something that makes a politician look bad, and suddenly it will be declared "fake news." We're seeing that happen already -- even without the threat of fines and censorship.

This focus on "fake news" is becoming increasingly dangerous and many of the people screaming loudest about it -- including lots of journalists -- don't seem to realize where it will end. You can worry about truly made-up stories all you want, but if you think the solution to it is to increase the powers to censor and stifle and chill expression, you're not going to be happy with how it boomerangs back on legitimate expression.

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Posted on Techdirt - 2 January 2017 @ 9:00am

Techdirt 2016: The Stats.

from the another-year-in-the-books dept

Another yearly tradition around here is that, soon after the new year, we post some details about some of the stats we've got on visitors/commenters and such. It's pretty fun, and this will be the 7th year that we're doing it. For reference, here are the posts from 2015, 2014, 2013, 2012, 2011 and 2010. For what it's worth, for comment stats, we're using our own internal logs, but for traffic we're using Google Analytics, which isn't perfect -- and which many people block via tracking blockers, so the stats may not be entirely accurate -- but since we're focused on comparative info, it's likely that the results are pretty good, since those who block trackers should have a somewhat proportional effect across the various years.

In 2016, we went back up to having visitors from 239 "countries" (as defined by Google Analytics... which I know bugs some people who insist there aren't that many countries in the world) after a drop to 235 in 2015. Of course, at the bottom of the list, we're talking pretty random places, so that's kind of meaningless. At the top of the list, though, as always, is traffic from the US, which represented 65.66% of all our traffic. It's almost always right around 66%, but has been dropping marginally the last couple of years (66.95% in 2014, 66.82% in 2015). In 2016, the UK passed Canada for 2nd place on traffic, but it was pretty close (6.45% of traffic, vs. 6.34%). Canada and the UK are always neck and neck in terms of traffic, with Canada nudging out the UK in 2013 and 2015, but the UK beating Canada in 2014 and again this year. Evens and odds. Australia and Germany, once again, retain their spots as the 4th and 5th biggest visitors -- both of which have kept those spots for years. The next five countries are also the same: India, France, the Netherlands, Sweden and New Zealand. The only difference in 2016 was that France edged out the Netherlands, which had been just slightly ahead of France the previous few years.

After India, the top Asian countries were the Philippines and Singapore, also flip-flopping (last year it was Singapore on top of the Philippines, but the year before it was the Philippines ahead of Singapore) -- but the difference in traffic between the two is basically a rounding error. Japan and Israel (if you consider Israel part of Asia...) round out the top 5. If you don't count Israel as being in Asia, then swap in Malaysia.

The top five European countries were already mentioned in the global top 10, but if you want to know the next 5 European countries, you've got: Spain, Italy, Ireland, Russia and Finland. This is a bit different than last year. Russia wasn't in the list last year, but we had a few stories this year about Russian internet trolls that resulted in a bunch of comments yelling at us about how we were full of shit... so... hmmm... The entrance of Russia into the list bumped Norway out of the top 10, which is too bad. I like Norway.

Across both North & South America, of course, we get most of our traffic from the US and Canada, but Mexico, Brazil and Argentina make up the next 3, with Mexico passing Brazil after a few years of being behind. In Africa, as always, South Africa sent the most traffic. Before last year, the only real traffic we got from Africa was from South Africa, but last year there was a bunch from Kenya -- we thought mainly because a Kenyan copyright lawyer had flipped out about a post we did on Kenyan copyright law and wrote an angry blog post claiming we were defaming Kenya. But, traffic from Kenya continued to be notable, coming in second after South Africa (about half as much traffic), and Nigeria was right behind Kenya. After that, there was much less traffic, but still some from Egypt and Sudan.

For basically every year, we joked about how we would get one single visit each year from Christmas Island, but last year, it went away. We wondered what we'd done to offend whoever it was... but this year they were back again, with one single visit. There were six "countries" this year that sent a single visit: besides Christmas Island, there was also Curacao, St. Barthelemy, Western Sahara, Guinea-Bissau and Tuvalu. For the second year in a row, we got zero visits from North Korea, after getting two visits in 2013 and an astounding four visits from North Korea in 2014.

As is always the case, the country with the longest average visits is... Gibraltar. But, as with every year, that's because there aren't that many visitors from Gibraltar, and one of them is one of our most prolific readers and commenters, PaulT, who takes credit for helping Gibraltar lead the charts in terms of average time of visit. If we look at countries that actually send significant traffic, last year New Zealand and Canada led the way for average time on the site. This year, India stepped up, followed by Canada and New Zealand (the US is next, followed by Australia). India also leads the way of major countries in terms of pages per visit, with New Zealand next.

We always point out that our city charts are a bit meaningless, given the hugely different populations in different cities, but the top five this year are the same as the past few years: New York, London, LA, Chicago and SF. SF and Chicago flipped positions. Washington DC retains spot number 6 for the second year in a row (after not being in the top 10 for a while), followed by Toronto, Seattle, Houston and Sydney (the same names as last year).

Once again, Chrome was the browser of choice for people visiting the site, this time breaking through the 50% mark with 51% of all visits being via Chrome. Safari was 22% and Firefox was 17%. Firefox was down a bit, while Safari was up quite a bit. There was still some Internet Explorer traffic (5%) and Microsoft's new browser, Edge (2%) and even a tiny bit of Opera traffic as well (1%) and a bunch of other random browsers bring up the rear. Remember when Microsoft was a monopolist in the browser market and no one would ever catch up? Fun times.

For the second year in a row, Android edged out iOS visits, but it was still pretty damn close. Visitors using Windows visited more than 4x those using Macs (which surprises me a bit...) and we still have a small percentage (~3%) of visitors using Linux. Somewhat astoundingly, the majority of those Windows visits came from people still on Windows 7. I'm guessing that these are people visiting from offices where they haven't gone through a (very, very necessary) upgrade yet. Windows 10 was the second most, but it was much lower than Win7 visits.

In terms of ISPs, Comcast leads the way, followed by Time Warner Cable. This should be no surprise at all, as those two dominate the market these days. Verizon has a strong third place showing, followed by Charter. AT&T is pretty far down the list, once again.

As for mobile devices, the iPhone easily leads the pack, with 31% of all mobile visits, followed by the iPad with another 12%. All the rest are tiny, tiny slivers of a huge variety of Android devices, none alone getting more than 1.5%. The most popular Android devices for viewing Techdirt are basically any Google Nexus model and any Samsung Galaxy S model (S5, S6 and S7).

As for where our traffic is coming from, this chart looks pretty similar to last years:

We really pride ourselves on the fact that so many people come directly to the site, as it shows the kind of loyal community we've built up. Of course, the one difference from last year is that the percentage from social has dropped -- and that's, no doubt, because we basically haven't "played the game" on social networks to try to use them to drive traffic. This is something we've been talking a lot about internally. We certainly don't want to go all clickbaity, like so many other sites, or those who completely game the system. But we know that social media drives traffic to lots of news sites these days, and we're not nearly as effective there as we should be. It's something we hope to work on in 2017. In terms of other sites driving traffic, Reddit continues to lead the way, followed by Facebook and Twitter. Hacker News is next, though much lower than the rest.

In terms of search traffic, most of the inbound searches are searches on some form of "Techdirt" or "tech dirt" which isn't too surprising. In terms of other searches that drive some traffic, "Walter O'Brien" continues to lead the way for the second year in a row, as people do a search on the guy who seems to have fibbed his way to creating a TV show about his almost certainly fictitious life. We also seem to get a bunch of traffic to this story any time someone tries to figure out the lyrics to the song "Louie Louie."

Now, onto the lists:

Top Ten Stories, by unique pageviews, on Techdirt for 2016:
  1. No, A Judge Did Not Just Order Apple To Break Encryption On San Bernardino Shooter's iPhone, But To Create A New Backdoor
  2. 71% Want The Dark Net Shut Down, Showing Most Have No Idea What The Dark Net Is
  3. 56% Would Drop ESPN In A Heartbeat If It Meant Saving $8 A Month On Cable
  4. President Obama Claims He Cannot Pardon Snowden; He's Wrong
  5. Once Again, Piracy Is Destroying The Movie Industry... To Ever More Records At The Box Office
  6. How The US Government Legally Stole Millions From Kim Dotcom
  7. AT&T Mocks Google Fiber's Struggles, Ignores It Caused Many Of Them
  8. Congrats, FBI, You've Now Convinced Silicon Valley To Encrypt And Dump Log Files
  9. As Its CEO Continues To Claim It Doesn't Throttle, T-Mobile Spokesperson Confirms Company Throttles
  10. Forbes Site, After Begging You To Turn Off Adblocker, Serves Up A Steaming Pile Of Malware 'Ads'
It should be noted that the Kim Dotcom story is actually from 2015, but still got a ton of traffic this year, in part because Dotcom has kept a link to it as his pinned tweet, and any time there's some news about his still ongoing cases, people tend to go to that story. If I try to squint and find a pattern in those stories, I'd say people seem to like when we call out bullshit claims from legacy companies or government. Not a surprise, but still interesting.

2016's Top Ten Stories, by comment volume:
  1. No, A Judge Did Not Just Order Apple To Break Encryption On San Bernardino Shooter's iPhone, But To Create A New Backdoor: 343 Comments
  2. Holy Crap: Wells Fargo Has To Fire 5,300 Employees For Scam Billing: 283 Comments
  3. FBI Boss Blows Past Policies, Guidelines, His Own Staff To Bring Back Clinton Email Investigation: 235 Comments
  4. NBC Delayed Story About Trump's Access Hollywood Recording Over Fear That He Might Sue: 220 Comments
  5. Our 'Copying Is Not Theft' T-Shirt Seems To REALLY Upset Some People: 210 Comments
  6. What The Election Means For Stuff Techdirt Cares About?: 202 Comments
  7. Homeland Security Wants To Subpoena Us Over A Clearly Hyperbolic Techdirt Comment: 197 Comments
  8. Hillary Clinton Looks At Her Campaign's Many Missteps, Decides To Blame James Comey For Her Loss: 185 Comments
  9. Somehow Everyone Comes Out Looking Terrible In The Effort For Election Recounts: 177 Comments
  10. President Obama Is Wrong On Encryption; Claims The Realist View Is 'Absolutist': 175 Comments
Once again, as we point out every single year, there is almost no overlap between the stories with the most traffic... and those with the most comments. Just because a story gets a lot of traffic, doesn't mean it gets a lot of comments, and just because a story gets a lot of comments, doesn't mean it gets a ton of traffic. Though, it is a first this year that the top story is the same in both lists (and that's the only story that is in both lists). Most of the most commented stories here are political stories, and the long comment threads tend to be a small group of people throwing political feces back and forth at one another. I'm so glad the election year is over.

And, now... onto the commenter lists, where a king has been deposed.

2016 Top Commenters, by comment volume:
  1. That One Guy: 2306 comments
  2. Ninja: 1577 comments
  3. nasch: 1299 comments
  4. John Fenderson: 1275 comments
  5. PaulT: 1271 comments
  6. Uriel-238: 1081 comments
  7. DannyB: 1024 comments
  8. Whatever: 882 comments
  9. Padpaw: 845 comments
  10. That Anonymous Coward: 825 comments
The deposed king would be John Fenderson, who led the list of most prolific commenters for four years running until this year. John -- who has always been a wonderful contributor here at Techdirt -- stopped commenting back in August. I hope everything's okay, John. That lets That One Guy finally jump into the top slot, after coming in second for a few years. PaulT maintains his position as making the top 10 list every year we've kept track, and nasch continues his streak of making it every single year... except one. The newcomer to the list this year is Padpaw. Nicely done. Also, That Anonymous Coward returns (barely) to the top 10 after missing it in 2015.

Top 10 Most Insightful Commenters, based on how many times they got the lightbulb icon:
Parentheses shows what percentage of their comments got the lightbulb
  1. That One Guy: 355 comments (15%)
  2. PaulT: 115 comments (9%)
  3. That Anonymous Coward: 110 comments (13%)
  4. Mason Wheeler: 87 comments (16%)
  5. Ninja: 84 comments (5%)
  6. John Fenderson: 67 comments (5%)
  7. DannyB: 66 comments (6%)
  8. Uriel-238: 64 comments (6%)
  9. Roger Strong: 52 comments (8%)
  10. Mike Masnick: 29 comments (6%)
I think that's the first time I made this list, actually. Neat. Last year, That One Guy also led this list with 356 insightful comments. He's apparently slipping with just 355 this year. Slacker.

Top 10 Funniest Commenters, based on how many times they got the LOL icon:
Parentheses shows what percentage of their comments got the LOL icon
  1. TechDescartes: 46 comments (26%)
  2. That One Guy: 38 comments (2%)
  3. Roger Strong: 30 comments (5%)
  4. DannyB: 29 comments (3%)
  5. Mason Wheeler: 24 comments (4%)
  6. Ninja: 22 comments (1%)
  7. That Anonymous Coward: 17 comments (2%)
  8. TheResidentSkeptic: 11 comments (11%)
  9. AricTheRed: 9 comments (17%)
  10. Vidiot: 9 comments (7%)
Once again, we see that it's a lot harder to get enough people to think you're funny than insightful. Except for that TechDescartes guy. Last year, we noted that he showed up at the end of the year, but still was able to jump onto the top funniest list with a bunch of funny comments, and with a full year under his belt, that let him jump to the top of the list, and with an astounding 26% hit rate. AricTheRed and TheResidentSkeptic buck the trend with decently high funny percentages as well. Nicely done everyone.

And, with that, we've closed the door on 2016... and on to 2017. We'll be back tomorrow with regular posting.

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Posted on Techdirt - 31 December 2016 @ 12:00pm

New Year's Message: No One Said It Would Be Easy...

from the a-tough-year dept

Since 2008, my final post of the year tends to be a post where I take a step back and reflect on how the year went. It started, back in 2008, as a response to multiple people asking me why I always seemed so optimistic about the future, despite writing all sorts of articles highlighting all sorts of bad behavior and threats to innovation, free speech and civil liberties. And my argument, in short, has always been that I strongly believe in the forward march of progress and innovation -- and that any anger you see coming through in my writing comes from being annoyed and frustrated at people and events that slow it down. That is, my anger is at the pace of change, but my optimism is for the inevitability of change. And, each year, the message has been more or less the same, often highlighting key events and reasons why we should all be so optimistic, even in the face of various challenges. Here are those past messages if you'd like to see them:

The last few years, I've noted that it felt like a lot of really bad stuff had happened -- but when you looked back at things as a whole, a lot of really wonderful stuff had happened that more than made up for the bad stuff. For the first time in writing these end of the year messages... I'm not so sure that's true this year. 2016 has been a mess, and I fear that we're in the process of taking numerous steps backwards on a variety of things. Don't get me wrong. I'm still incredibly optimistic about the future. But I fear that the forward progress may slow to a crawl, and it may take a while to get it back going -- and that's frightening.

I know that some will attribute this claim to the election of Donald Trump. I've already explained why I'm pretty sure that a Trump administration will be bad for a variety of issues that we care about at Techdirt. But that's not because I thought Clinton would be much better. She would have been terrible too. In fact, part of the gloom of 2016 is not who won, but who all of the candidates were, in that our political system seems unable to find candidates who can actually support both civil liberties and innovation. And that's truly unfortunate. Of course, the difference with Clinton was that she would have been terrible in fairly expected ways -- ways where many people know how to push back and fight back. With Trump, it's all a giant question mark. Almost everything he's said about these issues is horrible, but no one really knows what he's going to do or how he's going to do it -- and that's frightening in the uncertainty.

And yet, I'm still optimistic. I'm just... annoyed. We have such amazing opportunities to create a better world for everyone -- and not just in the pie-in-the-sky world of Silicon Valley dreamers claiming every new app will "change the world." But the reality is that modern technologies have enabled so much that is powerful, and there's so much potential to do so much more. And I fear that silly partisan squabbling and clueless bureaucrats are going to squander so much in the meantime. But the fact is that there are tons of people around the globe doing really amazing work. Even as many mock new internet services, things that originally appeared to be useless "toys" are turning into powerful disruptions, enabling many people to do so much more than they ever could before. It's opening up opportunities all over the place, and that's not going to stop.

And, yes, this year's message certainly feels more pessimistic. I still think the forward trajectory on these issues is unstoppable, but it feels like, for the first time in a long time, we're likely to be hitting a real hiccup in that march forward. It will continue. Things will move forward. But the headwinds may be stronger for the foreseeable future. And into that mess, we see opportunists of all kinds leaping in. And that's often a recipe for disaster. Legacy industries are ramping up their efforts to shut out competition and kill off innovations and the next year is going to be one where we need to watch out for and support competition and startups and true innovators over legacy players looking to stop that innovation. But, in the end, innovation always wins out. The force and inevitability of innovation is too much to stop -- and that keeps me optimistic, even as I may remain frustrated by efforts to hamstring the pace.

For what it's worth, I should also note that it's been a trying year for us at Techdirt as well. As I've mentioned a few times this year, the advertising business, which has been on the downswing, basically fell off a cliff in the last year. And that impacted a number of the things we've wanted to do. Many of you have stepped up, by supporting us directly via the Insider Shop, our Deals Store, or via our partnership with Private Internet Access. Many of you stepped up earlier this year and supported us via our crowdfunding campaign on Beacon, which is now, sadly, defunct. Others have supported our new Patreon campaign or bought some of our t-shirts (and get ready for more, because we'll be launching some new t-shirts in the near year, after taking the last few months off). And we can't thank all of you enough for helping to keep Techdirt going. It's still been tough. We've seen a number of sites that had similar-sized audiences to ours completely shut down in the last year -- and we completely understand why. It's a different environment out there, and it's difficult.

But we've still been working hard on a bunch of new projects which we'll be launching in the new year, and I'm still excited every morning about coming here and writing stuff and interacting with all of you. Some of the stuff we've got planned is really exciting, and we see it getting closer to fruition (even if we had hoped to launch some of it earlier this year... it's getting closer).

But, as always, the most amazing thing about Techdirt is the community of folks that are here. That includes both the commenters and the lurkers. I'm still amazed that anyone at all reads the site or has heard of it. I've been doing Techdirt for almost two decades now and that's both amazing and scary to me at the same time. But I've never gotten tired of it -- and that's mainly because of the community. You people are amazing.

At a time when so many websites are focused on shutting off their communities, or have no desire to interact at all with them, we've always found that the community of folks here inspires us, makes us think and is always pushing us to be at our best. Everyone here has helped make Techdirt what it is today and I can't thank you enough for that.

Thank you again for being a part of all things Techdirt.

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Posted on Techdirt - 30 December 2016 @ 9:13am

EU's Departing Internet Commissioner Leaves Behind Copyright Plan That Will Outlaw Basic Internet Functions

from the crazy-uncle dept

We've written quite a few times about EU Commissioner Gunther Oettinger, a bigoted luddite, who bizarrely was put in charge of internet regulations for no clear reason at all. His main focus seemed to be on putting in place policies whose sole goal was to harm the internet because many key internet companies are American. Oettinger, who seems to be magnetically connected to all sorts of scandals has failed upward to a new job as the EU's budget chief, but as EU Parliament Member Julia Reda notes, he's still leaving a trail of internet destruction in his wake. In particular, she highlights ten everyday internet activities that would be outlawed if Oettinger's copyright and internet proposals become law. It's a pretty eye-opening list, and should raise serious questions about why Oettinger was ever put in charge of anything having to do with the internet.

Among the list of things: sharing a snippet of a news article, retweeting a "creative" new headline, posting a blog post to Facebook, posting unmoderated comments to many platforms, or uploading content to Wikipedia. There's more in the list, but the crux of Oettinger's proposals were basically written by big legacy publishers and Hollywood -- looking to hamstring any competition from the internet at all, and requiring all sorts of new regulations, payments and monitoring requirements for any internet platform that let's users actually do stuff online. Reda points out the true irony here, in that the bills wouldn't actually impact actual cyberlockers -- which the industry often claims are pits of infringement, but rather seem uniquely targeted at big, established successful internet companies by industries who have failed to adapt to a changing internet.

It's good that Oettinger is leaving that role overseeing internet regulations, but these proposals still exist and may still move forward. Hopefully, the EU's next internet regulations czar actually has a bit more of a clue.

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Posted on Techdirt - 30 December 2016 @ 4:13am

White House Kicks Russian Diplomats Out Of The Country, Releases Preliminary Report On Russian Hacking With More To Come

from the escalation-time dept

As was widely expected, the White House officially announced its response to claims of Russian interference in our election process, and the "response" is basically kicking 35 Russian diplomats out of the country. Russia admittedly suggested it will do the same. The announcement also includes adding some entities to the official list of "Specially Designated Nationals and Blocked Persons." Somewhat incredibly, now added to that list is the FSB, which is the modern incarnation of the KGB. What's incredible about this was that it took until now for this to happen. With this, the administration also issued an executive order expanding on a previous executive order from last year, enabling it to take these actions.

Somewhat ridiculously, the new executive order just shows the full new order, and doesn't call out what changes were made from the original. So I went through and did a diff on the two executive orders myself. The first major change is an additional first line of who can be sanctioned. While the original had a description of what types of people could be sanctioned for cybersecurity violations, that same sanction has been bumped down to the 2nd item, and the new first item is:

the persons listed in the Annex to this order
Hmmm. That feels unfortunately close to an "enemies list."

The second major change is the addition of this action which can get you sanctioned to a long list of reasons:
tampering with, altering, or causing a misappropriation of information with the purpose or effect of interfering with or undermining election processes or institutions;
Yup. Remember, we noted already that interfering with "election systems" was not previously listed as a sanctionable offense. Now it is. That was to be expected.

Along with this report, Homeland Security and the FBI also (finally) released something of a "Joint Analysis Report" about the alleged Russian interference. The only major revelation in there is that the US government is referring to this hacking program as "GRIZZLY STEPPE."
This Joint Analysis Report (JAR) is the result of analytic efforts between the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI). This document provides technical details regarding the tools and infrastructure used by the Russian civilian and military intelligence Services (RIS) to compromise and exploit networks and endpoints associated with the U.S. election, as well as a range of U.S. Government, political, and private sector entities. The U.S. Government is referring to this malicious cyber activity by RIS as GRIZZLY STEPPE.

Previous JARs have not attributed malicious cyber activity to specific countries or threat actors. However, public attribution of these activities to RIS is supported by technical indicators from the U.S. Intelligence Community, DHS, FBI, the private sector, and other entities. This determination expands upon the Joint Statement released October 7, 2016, from the Department of Homeland Security and the Director of National Intelligence on Election Security.

This activity by RIS is part of an ongoing campaign of cyber-enabled operations directed at the U.S. government and its citizens. These cyber operations have included spearphishing campaigns targeting government organizations, critical infrastructure entities, think tanks, universities, political organizations, and corporations leading to the theft of information. In foreign countries, RIS actors conducted damaging and/or disruptive cyber-attacks, including attacks on critical infrastructure networks. In some cases, RIS actors masqueraded as third parties, hiding behind false online personas designed to cause the victim to misattribute the source of the attack. This JAR provides technical indicators related to many of these operations, recommended mitigations, suggested actions to take in response to the indicators provided, and information on how to report such incidents to the U.S. Government.
Other than that, the report really doesn't tell us much more than was already reported in the past by various cybersecurity outfits, about the supposed infiltration by two hacking groups -- called APT28 and APT29 (APT: Advanced Persistent Threat) that people say are connected to the Russian government. There is a nifty graphic, though:
The report also posts the YARA signature of the malware that was used (and encourage security folks to check for matching YARA signatures on their systems), and highlights (as was already known) that most of the "hacking" involved spearphishing (directly targeting individuals and tricking them into giving up passwords, with fake password reset requests).

The report does not add much to prove that it was actually the Russians behind this, though everyone insists that's now the consensus view. The NY Times notes that "a more detailed report on the intelligence... will be published in the next three weeks," which certainly could reveal more details. But... of course... "much of the detail -- especially evidence collected from "implants" in Russian computer systems, tapped conversations and spies — is expected to remain classified." In other words, for those who are still skeptical that it was Russia, don't expect them to be convinced by any of this.

Meanwhile, Donald Trump, when asked about all of this managed to toss off his typical word salad of nothingness:
“I think we ought to get on with our lives. I think that computers have complicated lives very greatly. The whole age of computer has made it where nobody knows exactly what is going on. We have speed, we have a lot of other things, but I’m not sure we have the kind, the security we need.”
Yes, it's true that attribution in online security is difficult, but most of that statement is completely ridiculous.

And, of course, this is all kinds of a mess. You have claims of attacks that no one wants to back up with actual details, for fear that it will reveal too much about sources and methods. You have escalation of "diplomatic responses" to counter this attack that everyone tells us was done by the Russians. You have an incoming President who basically said "how do I even computer." None of this is good, and none of it should be okay from no matter where you sit. If we're going to get into a fight with Russia, it would be nice if we had more evidence that "hey, someone broke into the email systems of political parties -- because those organizations are bad at security." But that doesn't seem likely to happen.

Instead, we're left with this weird game where we're constantly being told "trust us" by one side and "computers confusing" by the other. That's not comforting.

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