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Posted on Techdirt - 2 July 2015 @ 6:18pm

Let's Encrypt Releases Transparency Report -- All Zeroes Across The Board

from the now-let's-watch-if-anything-changes dept

We've talked a bit about the important security certificate effort being put together by EFF, Mozilla and others, called Let's Encrypt, which will offer free HTTPS security certificates, making it much easier to encrypt the web. They've been busy working on the project which is set to launch in a few months. But first... Let's Encrypt has released its first transparency report. Yes, that's right: before it's launched. As you might expect, there are a lot of zeros here:

This is actually pretty important for a variety of reasons. First, it clearly acts as something of a warrant canary. And by posting this now, before launch and before there's even been a chance for the government to request information, Let's Encrypt is actually able to say "0." That may seem like a strange thing to say but, with other companies, the government has told them that they're not allowed to claim "0," but can only give ranges -- such as 0 to 999 if they separate out the specific government requests, or 0 to 249 if they lump together different kinds of government orders. Twitter has been fighting back against these kinds of rules, and others have argued that revealing an accurate number should be protected speech under the First Amendment.

Let's Encrypt is, smartly, getting this first report out there -- with all the zeroes -- before the government can swoop in and insist that it has to only display ranges. In other words, this is getting in before any gag order can stop this kind of thing. Smart move. It's also nice to see them break down all of the different possible types of orders, rather than lumping them into more general buckets. That's an important step that it would be nice to see others follow as well.

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Posted on Techdirt - 2 July 2015 @ 3:52pm

German Court Says YouTube Isn't Liable For Infringement, But Wants A Notice-And-Staydown Process

from the that's-troubling dept

YouTube and the music collection society GEMA have been at war for many years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.

German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.

The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:

“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”
While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.

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Posted on Techdirt - 2 July 2015 @ 2:49pm

Leaked TPP Chapter Shows How It's A Massive Gift To Big Pharma And Against Public Health

from the but,-fast-track's-in-place,-so-too-bad,-suckers dept

Over the last few years, we've seen leaks here and there of the various chapters of the TPP agreement, but generally ones that are quite out of date. The latest public leak of the "intellectual property" chapter that I'm aware of was done last October by Wikileaks and was the version from the previous May (2014). Now, Politico claims that someone has leaked the May 2015 version, though Politico has not published the document (which, frankly, is pretty lame for a journalism property). But, based on Politico's report, the agreement still looks to be what everyone's been saying it would be: a huge gift to giant corporate special interests, such as Big Pharma:

The draft text includes provisions that could make it extremely tough for generics to challenge brand-name pharmaceuticals abroad. Those provisions could also help block copycats from selling cheaper versions of the expensive cutting-edge drugs known as “biologics” inside the U.S., restricting treatment for American patients while jacking up Medicare and Medicaid costs for American taxpayers. “There’s very little distance between what Pharma wants and what the U.S. is demanding,” said Rohat Malpini, director of policy for Doctors Without Borders.
In response, the USTR falls back on its standard lame reply, about how draft texts are not "final." But this is why it's actually important to post these draft texts publicly, because what the draft Politico saw appears to show is that, whether or not it gets it, the USTR is fighting for policies that would harm poor, sick people, and massively benefit giant pharmaceutical conglomerates.
The highly technical 90-page document, cluttered with objections from other TPP nations, shows that U.S. negotiators have fought aggressively and, at least until Guam, successfully on behalf of Big Pharma.
That bit of information seems rather important in determining whose interests the USTR is truly representing in these negotiations. Remember, that while the final agreement will be posted publicly, the negotiating texts (which show what each side argued for) are being kept secret for four years after ratification -- by which point the staff at the USTR will likely have turned over greatly, and whoever is there now can pretend they had nothing to do with the negotiating positions that the US is now locked into.

And, of course, now that fast track is the law, Congress can't even step in to fix it. They'll only be allowed an up/down vote on the entire agreement -- with tremendous pressure on them to approve the whole thing, even if there are dangerous provisions mixed in the overall agreement.

Of course, we all know that this is why the agreement is secret. It's not politically feasible for the US government to publicly show that it's fighting against the health interests of the public and in favor of pharma profits. But it appears that's exactly what's happening behind closed doors. And that seems... wrong.

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Posted on Techdirt - 2 July 2015 @ 1:44pm

Nope, You Can't Patent A Generic Idea Like Crowdfunding

from the thank-you-alice dept

Back in 2011, we wrote about Kickstarter going to court to ask for a declaratory judgment that a patent held by ArtistShare (7,885,887) was invalid, and thus, that Kickstarter was not infringing. As we explained at the time, ArtistShare and its CEO Brian Camelio had been going around to various crowdfunding platforms asking them to pay up over the patent. Camelio, never one to hold back his opinions, explained that he was going after Kickstarter because he really just didn't like the company:

"As an artist myself, I feel that KickStarter may be hurting artists by focusing on 'donating money' rather than celebrating the artist for what they do. Their model does not build fan relationships but just continually asks for hand outs."
Even if you agree with that statement, that's completely unrelated to the question of whether the patent is valid or if Kickstarter infringed. And, indeed, the court has now ruled that the patent is, indeed, invalid. Thankfully, between the time of Kickstarter filing for declaratory judgment and this ruling, the Supreme Court's useful Alice ruling came out, making it clear that you cannot patent "generic" computer functions. The ruling in this case relies heavily on that ruling and rejects the patent as nothing more than an "abstract idea" around "patronage" which is not patentable:
The ‘887 Patent’s claims are directed to the concept of crowd-funding or fan-funding, i.e., raising funds for a project from interested individuals in exchange for incentives. Whether the abstract idea in play here is defined as “crowd-funding,” “crowd-based funding,” “fan-funding,” “incentive-based patronage,” “incentivized crowd-funding,” or some other combination of these words is of no moment: the abstract concept at play in the Patent remains the same. Claim 1 broadly recites a “system for marketing and funding one or more projects of an artist” ... and the specification describes the invention as “methods and systems for obtaining financing from interested individuals to produce a creative work in exchange for an entitlement from the author of the work” .... These claims are squarely about patronage — a concept that is “beyond question of ancient lineage.” ...

Moreover, this concept of incentive-based funding is incontestably similar to other “fundamental economic concepts,” and to other types of “organizing human activity,” both of which have been found to be abstract ideas by the Supreme Court and the Federal Circuit.
Later in the ruling, the judge notes that everything in the patent is "well-understood, routine conventional activities." That is, the very opposite of what is patentable.
Nothing about the ‘887 Patent transforms the concept of crowd-funding into patent-eligible subject matter. Beyond the abstract idea of patronage, the claims merely recite “well-understood, routine conventional activities,” by requiring either conventional computer activities or routine data-gathering steps.
It's good to see a nice clean ruling, though it's too bad this had to sit in court for more than three years, wasting tons of resources that could have been focused on more innovations for creators and innovators. And, of course, it might not be over yet, as Camelio has suggested that he may appeal the ruling.

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Posted on Techdirt - 2 July 2015 @ 12:14pm

As FBI Fearmongers About 'Going Dark' Because Of Encryption, Actual Wiretaps Almost Never Run Into Encryption

from the all-that-fuss-over-this? dept

The FBI has been really screaming its head off about the evils of encryption over the last year or so. Director James Comey keeps fearmongering about encryption, though when asked to give examples of cases where encryption had created problems, all of his "examples" turn up empty. Yet, the FBI keeps insisting that something needs to be done and, if not, there's a real risk of "going dark." One of Comey's top deputies has insisted that tech companies need to "prevent encryption above all else." And the fearmongering is working. Some politicians are already freaking out about this so-called "going dark" scenario.

In fact, next Wednesday, both the Senate Intelligence Commitee and the Senate Judiciary Committee are hosting "hearings" for Comey, about the issue of "going dark" due to encryption. The Intelligence Committee's is called "Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy," while the Judiciary's is "Counterterrorism, Counterintelligence, and the Challenges of 'Going Dark.'"

So it's rather interesting that before all that, the US Courts had released their own data on all wiretaps from 2014, in which it appears that encryption was almost never an issue at all, and in the vast majority of cases when law enforcement encountered encryption, it was able to get around it. Oh, and the number of wiretaps where encryption was even encountered has been going down rather than up:

The number of state wiretaps in which encryption was encountered decreased from 41 in 2013 to 22 in 2014. In two of these wiretaps, officials were unable to decipher the plain text of the messages. Three federal wiretaps were reported as being encrypted in 2014, of which two could not be decrypted. Encryption was also reported for five federal wiretaps that were conducted during previous years, but reported to the AO for the first time in 2014. Officials were able to decipher the plain text of the communications in four of the five intercepts.
Obviously, if more communications are encrypted by default, it's true that the numbers here would likely rise. But the idea that there's some massive problem that requires destroying the safety of much of the internet, seems more than a bit far-fetched.

As computer security expert Matt Blaze noted in response to all of this, aren't there a lot of other tools out there that hide criminals from law enforcement as well? Why is there this moral panic about encryption?
In case you can't read that, it says:
I'll bet burglars wore gloves to avoid leaving fingerprint evidence a lot more than four times last year. Time for a war on gloves?

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Posted on Techdirt - 2 July 2015 @ 9:26am

David Cameron Promises To Do Away With 'Safe Spaces' On The Internet

from the treating-everyone-like-terrorists dept

Earlier this year, there were some questions raised when it appeared that UK Prime Minister David Cameron was suggesting that he wanted to undermine all encryption on the internet. Later, some suggested he was looking more at undermining end point security. However, after being re-elected, and apparently believing that this gave him the mandate to go full Orwell, Cameron is making it clear that no one should ever have any privacy from government snoops ever.

Responding to a somewhat nonsensical question about if he believed the recent attacks in Tunisia meant that the big internet companies need to "understand that their current privacy policies are completely unsustainable?" Cameron insisted that the UK always needed to be able to read communications. It is, of course, not at all clear what the privacy policies of Google, Facebook and Twitter (the three named by the questioner) have to do with the price of tea in China, let alone the attacks in Tunisia, but... alas:

"We just want to ensure that terrorists do not have a safe space in which to communicate. That is the challenge, and it is a challenge that will come in front of the House.

"We have always been able, on the authority of the home secretary, to sign a warrant and intercept a phone call, a mobile phone call or other media communications, but the question we must ask ourselves is whether, as technology develops, we are content to leave a safe space—a new means of communication—for terrorists to communicate with each other.

"My answer is no, we should not be, which means that we must look at all the new media being produced and ensure that, in every case, we are able, in extremis and on the signature of a warrant, to get to the bottom of what is going on."
Of course, he also insisted that you regular people shouldn't worry:
"Britain is not a state that is trying to search through everybody’s emails and invade their privacy..."
Except, well, it is. This whole thing seems to be based on the idea that it's blatantly obvious who is a "terrorist" and who is a good citizen of the UK. Cameron can't really be so naive as to think that "terrorists" are somehow easily differentiated from everyday people, can he? Then again, this is the same guy who once pushed for this Snooper's Charter by talking about how fictional TV crime dramas proved it would be a useful tool.

This is extremely troubling. Cameron's desire to undermine encryption is dangerous for the privacy and security of everyone, especially those in the UK that Cameron is supposed to be helping to protect, because lots of people really do need "safe spaces in which to communicate." The only way to take those away for "terrorists" is to take them away for everyone, and that means not just for the purpose of government snooping, but for others as well. Introducing backdoors breaks security and makes everyone much, much, much more vulnerable to all sorts of attacks.

And, again, this is the same guy who said:
For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone.... This government will conclusively turn the page on this failed approach.
Does that really sound like someone who will only use such snooping powers to track down terrorists? He's blatantly admitting that he will use it against law abiding citizens, admitting that merely "obeying the law" should not leave you free from being hassled by the government.

These kinds of statements are cartoonishly evil. They're the kind of ridiculous statements one would have hoped you'd only see in late night TV fictional TV dramas, not coming from an actually elected leader of a major western power.

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Posted on Techdirt - 2 July 2015 @ 8:25am

Amnesty International Told That GCHQ Spied On Its Communications

from the because-of-course-it-did dept

Amnesty International has been heavily engaged in fights against mass surveillance, recognizing that many of the people it communicates with need an expectation of privacy in their communications with the group. Last year, Ed Snowden revealed that the NSA specifically spied on Amnesty International and other human rights organizations. And, while Amnesty International was unable to gain standing by the US Supreme Court, since it couldn't prove that the NSA had spied on its communications, the story appears to be somewhat different over in the UK.

Last year a legal challenge was filed in the UK via the Investigatory Powers Tribunal (IPT) concerning Amnesty International. And now, the group has been informed that, yes, it was spied on by GCHQ in the UK.

In a shocking revelation, the UK’s Investigatory Powers Tribunal (IPT) today notified Amnesty International that UK government agencies had spied on the organization by intercepting, accessing and storing its communications.

In an email sent today, the Tribunal informed Amnesty International its 22 June ruling had mistakenly identified one of two NGOs which it found had been subjected to unlawful surveillance by the UK government. Today’s communication makes clear that it was actually Amnesty International Ltd, and not the Egyptian Initiative for Personal Rights (EIPR) that was spied on in addition to the Legal Resources Centre in South Africa.
As you may recall, a little over a week ago, the IPT had ruled that the GCHQ had erred in holding onto emails too long -- but had named that Egyptian organization as the one whose emails were held. However, that's now been corrected to Amnesty International.

The actual email sent by the IPT basically says that GCHQ told them that the IPT made a mistake. What you won't see anywhere is an apology from GCHQ.
Amnesty is rightfully incensed about the whole thing:
“How can we be expected to carry out our crucial work around the world if human rights defenders and victims of abuses can now credibly believe their confidential correspondence with us is likely to end up in the hands of governments?

“The revelation that the UK government has been spying on Amnesty International highlights the gross inadequacies in the UK’s surveillance legislation. If they hadn’t stored our communications for longer than they were allowed to by internal guidelines, we would never even have known. What’s worse, this would have been considered perfectly lawful.”
Both issues raised here are significant. The only reason Amnesty now knows about this is because GCHQ held onto the emails too long. If it had done its usual purge, then the IPT likely would never have revealed that, and Amnesty's communications would have continued to go on being compromised without anyone knowing.

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Posted on Techdirt - 1 July 2015 @ 2:33pm

No Craig Newmark Did Not Donate To EFF; He Helped Make CFAA Worse Instead

from the eff-opposed-the-lawsuit dept

There's been a bunch of fuss online over the "news" that Craigslist is supposedly donating $1 million to EFF when the money is not actually from Craig. It's from a startup that Craigslist has sued out of business, under a dangerous interpretation of the CFAA that harms the open internet. Obviously, EFF getting an additional $1 million in resources is really great. But it's troubling to see so many people congratulate Craigslist and Craig Newmark for "supporting EFF." Craig himself has contributed to this misleading perception with this tweet implying he's giving his own money to EFF:

Plenty of smart people are cheering on Craig for supposedly being so generous. But that's wrong. This isn't Craigslist being generous. This is Craigslist abusing the CFAA to kill a company who was making the internet better, and then handing over some of the proceeds to the EFF, which actively opposed Craigslist's lawsuit.

Now, I should note upfront that I like Craigslist and very much like Craig Newmark personally. I think that the company has been really innovative in taking a more long term view of its business (even if it's been losing ground more recently). However, this lawsuit was always really sketchy. It sued a few companies for making Craigslist more valuable. Those companies were scraping Craigslist data, but only to overlay additional information and always pointing people back to Craigslist. In other words, the companies Padmapper and 3taps were adding value to Craigslist in the same manner that much of the internet was built -- by providing more value on top of the work of others.

And yet Craigslist sued these companies under a tortured definition of the CFAA, arguing that the mere scraping of its data to provide value on top of it (none of which took away any value from Craigslist) was "unauthorized access." The EFF filed an amicus brief against Craigslist, slamming the company (which it has frequently supported in other circumstances) for abusing the law:
The CFAA does not and should not impose liability on anyone who accesses information publicly available on the Internet. Because the CFAA and Penal Code § 502 imposes both civil and criminal liability, it must be interpreted narrowly. That means information on a publicly accessible website can be accessed by anyone on the Internet without running afoul of criminal computer hacking laws. In the absence of access, as opposed to use, restrictions, Craigslist cannot use these anti-hacking laws to complain when the information it voluntarily broadcasts to the world is accessed, even if it is upset about a competing or complementary business.


Craigslist’s enormous success is a result of its openness: anyone anywhere can access any of its websites and obtain information about apartments for rent, new jobs or cars for sale. Its openness means that Craigslist is the go to place on the web for classified ads; it users post on Craigslist because they know their ads will reach the largest audience.

But what Craigslist is trying to do here is to use the CFAA’s provisions to enforce the unilateral determinations it has made concerning access to its website, an Internet site that it has already chosen to open up to the general public, attempting to turn a law against computer hacking into a new tool. But prohibiting access to an otherwise publicly available website is not the type of harm that Congress intended to be proscribed in the CFAA, and nowhere in the legislative history is there any suggestion that the CFAA was drafted to grant website owners such unbridled discretion.
That's the EFF directly arguing against Craigslist in this case. Unfortunately, the initial district court ruling agreed with Craigslist, leading EFF to note just how dangerous the ruling was:
There's a serious potential for mischief that is encouraged by this decision, as companies could arbitrarily decide whose authorization to "revoke" and need only write a letter and block an IP address to invoke the power of a felony criminal statute in what is, at best, a civil business dispute.
Orin Kerr, who is an expert on abuses of the CFAA was similarly alarmed:
Judge Breyer’s opinion appears to mix up two different aspects of the CFAA. The first aspect is the prohibition on unauthorized access, and the second is its associated mental state element of intent. The CFAA only prohibits intentional unauthorized access; merely knowingly or recklessly accessing without authorization is not prohibited. So whatever unauthorized access means, the person must be guilty of doing that thing (the act of unauthorized access) intentionally to trigger the statute. Breyer seems to mix up those elements by focusing heavily on the fact that 3taps knew that Craigslist didn’t want 3taps to access its site. According to Judge Breyer, the clear notice meant that the case before him didn’t raise all the notice and vagueness issues that prompted the Ninth Circuit’s decision in Nosal.
So now the case has been settled, and, as a result, at least one of the companies involved, 3taps, is shutting down altogether. 3taps points out that it's 3taps, not Craigslist whose money is going to EFF:

As part of the settlement, 3taps and its founder, Greg Kidd, have agreed to pay craigslist $1 million, all of which must then be paid by craigslist to the EFF, which supported 3taps' position on the CFAA in this litigation, and continues to do great work for Internet freedom generally.  Mr. Kidd's investment firm, Hard Yaka, has also committed to make a substantial investment in PadMapper to provide it with the resources to continue to innovate and serve the post-craigslist marketplace.

Although 3taps lacks the resources to continue the fight, this settlement provides much needed resources to the EFF, as there is still much to be done on the issues raised in this case.

For example, the question remains whether private companies that maintain public websites can selectively exclude visitors, exposing the banned visitor to civil and criminal liability under the CFAA.

Furthermore, this is unlikely to be the last litigation involving craigslist's copyrights, particularly given craigslist's current practice of selectively obtaining copyright assignments and registrations (the prerequisite to a copyright infringement lawsuit) in certain user-generated posts, but failing to inform its visitors which posts it owns.  This effectively creates a copyright litigation trap for unwary visitors.

Finally, it remains unresolved whether craigslist's well-recognized practice of "ghosting" (the hiding or interception of user postings and emails) without the users' knowledge or consent is legal or ethical.

Given all that, it's fairly disappointing to see lots of prominent people backslapping Craig and Craigslist for "donating" this money to EFF. It's not Craig's money. And, according to the settlements, it appears that the $1 million isn't all that Craigslist is getting. That's just the money 3taps is paying. Another company in the dispute, Lovely, is paying an additional $2.1 million. It's unclear if Craigslist is giving that money to EFF or anyone else -- or keeping it.

Again, on most issues, I think Craig and Craigslist are on the right side of things. He fought strongly against SOPA and for net neutrality. I think the company does the right thing in many cases, but in this case it clearly did not, and the fact that people are now cheering him on when it's not even his money, and is only happening as a result of his bad lawsuit that forced another company to shut down, is really disturbing.

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Posted on Techdirt - 1 July 2015 @ 12:45pm

Chicago Area Sheriff Who Wasted Taxpayer Money Suing Craigslist, Now Strong-Arms Payment Companies To Avoid Backpage

from the that's-not-what-government-is-supposed-to-do dept

Remember Thomas Dart? He's the sheriff of Cook County, Illinois (the county that covers Chicago and many of its suburbs). For reasons that make no sense at all, he's somewhat obsessed with the fact that some prostitutes have figured out how to use the internet. But, rather than using this information to actually find and arrest those who are breaking the law, he's decided a much better move is to ignore the law and attack the internet tools those prostitutes use. Back in 2009 he sued Craigslist, wasting a ton of taxpayer money, until the court inevitably threw out the case, explaining (in detail) to Dart that the law (in particular, Section 230 of the CDA) says he can't do that. As we noted at the time, the really, really bizarre part was that in Dart's initial announcement, he even noted how his staff used Craigslist to find and arrest those engaged in prostitution. In other words, his lawsuit appeared to be an attempt to shut down a tool that had been useful to his staff in stopping crime. Indeed, in the court ruling throwing out his bogus lawsuit, the Court pointed out the obvious:

Sheriff Dart may continue to use Craigslist's website to identify and pursue individuals who post allegedly unlawful content... But he cannot sue Craigslist for their conduct.
Sheriff Dart may not be suing again, but it appears he has not learned his lesson yet. Of course, after being hassled by a number of law enforcement officials with no legal authority, like Dart, Craigslist eventually shut down any section of its site that might have been used for prostitution. And, just as we predicted, the prostitution just moved onward to another site, Backpage.com. And, of course, the same law enforcement officials suddenly freaked out over Backpage -- even though, yet again, the law is pretty clear that Backpage is not liable.

So, now, Thomas Dart is back again, this time without a lawsuit, but using his position as a law enforcement official to strong-arm payment companies into no longer working with Backpage:
MasterCard said on Tuesday that its credit cards can no longer be used to pay for ads on the Backpage.com website, following a request from a Chicago law enforcement official who said the site is used by sex traffickers.

Cook County Sheriff Thomas Dart said that so-called "escort" ads on Backpage.com and similar sites make up the foundation of the sex trafficking industry, which preys on the young and vulnerable. He has asked both Visa Inc and MasterCard Inc to cut off any association with the Backpage.com "adult" section.

"Backpage has significantly lowered the barrier to entry for would-be traffickers," said Dart, adding he will reveal details of a larger initiative against Backpage at a news conference on Wednesday.
The "news conference" on Wednesday was just a chance to say that Visa was in on the ban as well:
Visa Inc said on Wednesday it is joining MasterCard Inc and American Express Co in barring its credit cards from being used to pay for ads on Backpage.com following a request from a Chicago sheriff who said the site is used by sex traffickers.
Once again, Backpage has tons of legitimate uses as a classifieds service, and whatever prostitution that is done on the site should make Dart's life easier by allowing him and his staff to find those engaged in prostitution. I'm curious, did Dart similarly recommend that streetlights be turned off at night so that street walking prostitutes can no longer walk the streets? Why not target the actual prostitutes, rather than the tool that helps you find them?

In the meantime, while this move will get stupid headlines for Dart, it won't change much. Backpage is already accepting Bitcoin, and I can't wait to see Dart's office try to figure out how to pressure "Bitcoin" into no longer working with Backpage.

Ridiculously, Dart now claims this will make traffickers easier to catch. Though he doesn't explain how:
"We have no naive notion that we'll end prostitution, end trafficking, end exploitation of children," Dart said. "What we've wanted all along is to make it more difficult and make (traffickers) easier to catch."
So the way you make them "easier" to catch is to cut off their ability to use tools that make it ridiculously easy for you to track down, and instead push them to using tools and systems where you can't track them down? Want to try that one again?

Either way, doesn't it seem highly questionable for a law enforcement official to interfere in the private business agreements of two companies, neither of whom are breaking the law?

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Posted on Techdirt - 1 July 2015 @ 9:32am

Donald Trump's Lawsuit Against Univision Is Absolutely Hilarious

from the yes-we'll-add-the-obligatory-xkcd dept

Donald Trump seems to be showing off what would happen if your prototypical internet troll had way too much money at his disposal. As you may have heard, he's putting on a big show of "running" for President, though as many have recognized, the move appears to be a hell of a lot more about getting himself publicity (thankfully, at least some news organizations are properly categorizing stories about Trump as entertainment rather than politics). Of course, the plan to get more attention may be backfiring somewhat, as some of the ridiculous comments he's made "on the campaign" are coming back to bite him -- including Univision cutting ties with him over the Miss USA telecast and NBC dumping both the pageants and his Apprentice series (that thing is still on?).

In response, Trump has filed what has to be one of the funniest lawsuits we've seen in a long time against Univision over the cancelled deal. It honestly reads like one of those nutty conspiracy theory lawsuits we see all the time, often filed pro se. You'd think that Trump would have trouble finding lawyers willing to file nuttiness on his behalf, but apparently there's always someone. It even resorts to the worst trolling tactic of internet commenters: complaining that his "First Amendment rights" are being violated because Univision dropped him. And it all involves a conspiracy involving Hillary Clinton. Seriously.

While Univision has claimed in the media that its decision to cut ties with MUO came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly veiled attempt by Univision, a privately held company principally owned by longtime Clinton Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump's freedom of speech under the First Amendment as he begins to campaign for the nation's presidency and, in recent weeks, has dramatically risen in the polls while expressing critical views of Mrs. Clinton. Little else can explain Univision's decision to not only abandon its contractual relationship with MUO, but also, upon information and belief, pressure NBC to follow suit and cut longstanding ties with Plaintiffs nearly two weeks after the statements were made.
First of all, as all of you (minus a few trolls) are currently screaming right now, no the First Amendment has absolutely nothing to do with this. We'll let the obligatory xkcd explain:
The statement is also entirely superfluous to the lawsuit as well, as none of the actual legal claims have anything to do with his First Amendment rights. Apparently Trump could get the lawyers to throw that bit into the description of the case, but when it came time to make actual claims, even the lawyers wouldn't go so far as to make a First Amendment claim.

Also, "little else can explain?" Really? Actually, there are tons of other explanations, with many of them being a hell of a lot more plausible than any fear of Trump being a legitimate contender for the White House -- for example, the actually stated reason that Trump out and out offended the entire country of Mexico with some ridiculous statements.

Next up in the internet troll playbook, we have the ridiculous claim of "defamation" over statements that the person doesn't like, but which are clearly statements of opinion, rather than fact:
In a move which can only be described as both tasteless and defamatory, on June 25, 2015, Mr. Ciurana, Univision's President of Programing and Content, then posted a photo on his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old who was recently arrested in the murder of nine (9) African-Americans attending bible study at a church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S. soil. While Mr. Cuirana would later remove the defamatory post, the damage was already done: almost immediately, Mr. Ciurana's post was picked up by the media and became the subject of hundreds, if not thousands, of press articles, yet another example of Univision's dubious efforts to create a false narrative in an attempt to upset Mr. Trump's longstanding personal and business relationship with the Hispanic community.
If you're curious, here's the Instagram that Alberto Ciurana put up:
It's pretty clearly a somewhat weak attempt at humor, mocking the hair cuts of Trump and Roof. Tasteless? Perhaps, but there's no law requiring anyone to be tasteful in their internet jokes. Defamatory? Not in any way, shape or form. Not even close. And yet, unlike the non sequitur (and incorrect) First Amendment claims earlier, the lawsuit actually does claim defamation.

It's entirely possible that there are legitimate issues concerning breach of contract here, but even most of that seems like a stretch. Because Univision didn't just cut ties with Trump, it actually agreed to pay the full licensing amounts it promised for the next five years (totaling $13.5 million). In other words, Trump actually didn't lose any direct money from this, because Univision paid up (and, in theory, he could try to license it to someone else, though I'm not sure who would want to pay at this point). But Trump is -- hilariously -- claiming damages of $500 million because now people won't see the pageants.

Of course, Trump's own arguments undermine his arguments (because of course they do). The lawsuit repeatedly brags that there was a bidding war earlier this year, in which Univision emerged victorious. Thus, at least a few months ago, other TV media properties wished to broadcast the pageants. If it was true that this was all just a grand conspiracy by Hillary Clinton supporter Saban, then you'd think that Trump could simply move on to whoever else was in that bidding war (while keeping all the money that Univision paid him anyway!). But, of course, if the real reason for the cancellation was because of Trump's comments about Mexico and the concern about how Spanish-speaking audiences felt about that -- well, then Trump wouldn't be able to find that alternative.

The lawsuit is then equally hilarious in arguing that it can't possibly be Trump's offensive comments about Mexico because Trump has said the same offensive crap many times before. That seems like an odd thing to argue in such a lawsuit, but it's what Trump's lawyers have chosen to claim:
In reality, however, Mr. Trump's calls for immigration reform, particularly with respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump had, in numerous television and news interviews, consistently voiced his concerns regarding the influx of illegal immigrants pouring into the United States across the Mexican border and the crime that has resulted therefrom, views which were widely reported by every major media outlet, including, both Univision and NBC.

As Mr. Trump explained in an interview with Fox News' Bill O'Reilly on March 30, 2011, "[t]hey're coming over, and they're climbing over a fence, and there's nobody within 10 miles -- and they're selling drugs all over the place, they're killing people all over the place -- and we're not doing anything about it."
Indeed. It may be true that Trump has said offensive things in the past, but that doesn't mean that Univision can't later decide that the greater attention paid to his more recent offensive comments are such that it no longer wishes to do business with him. There's no rule anywhere that says, "Well, if you didn't complain four years ago when I said some stupid shit, you can't complaint now!" Even if it's true that Univision is only making this decision because Trump's comments went a bit viral, that's Univision's decision to make, and his previous comments are completely meaningless.

Frankly, this lawsuit is absolutely hilarious. The chances of it going anywhere are pretty slim. The First Amendment arguments are ridiculous, but meaningless, as there's no actual legal claim there. The defamation claims are going to get laughed out of court. The whole thing is fairly hilarious, and fits in with the designation of Trump as "entertainment" rather than anything even remotely serious.

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Posted on Techdirt - 1 July 2015 @ 8:31am

Craziest Part Of Apple's Price Fixing Ruling: Publishers Knew They Were Encouraging Piracy, Didn't Care

from the because-of-course dept

For many years, despite claims from legacy copyright industry extremists who sought to blame everyone else for any piracy issues, we've pointed out that the reality is almost always that piracy is their own fault for failing to provide convenient, reasonably priced alternatives to the public. When they actually do that, piracy rates almost always drop significantly. And now we have even more proof that these legacy industry insiders know this and don't care.

You may remember that, two years ago, Apple was found guilty of price fixing for ebooks, in an effort to break Amazon's hold on the market and to artificially inflate the price of ebooks, creating significant consumer harm. Apple agreed to settle with the government last year, but dependent on how its appeals process went. Well, the Second Circuit appeals court was... unimpressed with Apple's appeal and has upheld the original ruling. The ruling (and the dissent) are interesting reads, but perhaps most interesting is the tidbit in which the big publishers admit that what they're doing will increase piracy, but they don't care because they so badly want to raise prices from Amazon's established $9.99 per ebook.

The most significant attack that the publishers considered and then undertook, however, was to withhold new and bestselling books from Amazon until the hardcover version had spent several months in stores, a practice known as “windowing.” Members of the Big Six both kept one another abreast of their plans to window, and actively pushed others toward the strategy. By December 2009, the Wall Street Journal and New York Times were reporting that four of the Big Six had announced plans to delay ebook releases until after the print release, and the two holdouts — Penguin and Random House — faced pressure from their peers.

Ultimately, however, the publishers viewed even this strategy to save their business model as self‐destructive. Employees inside the publishing companies noted that windowing encouraged piracy, punished ebook consumers, and harmed long‐term sales. One author wrote to Sargent in December 2009 that the “old model has to change” and that it would be better to “embrace e‐books," publish them at the same time as the hardcovers, “and pray to God they both sell like crazy.” .... Sargent agreed, but expressed the hope that ebooks could eventually be sold for between $12.95 and $14.95. “The question is,” he mused, “how to get there?”
In other words, the publishers were so focused on wanting to raise the price of ebooks, they were willing to embrace a solution that they knew both encouraged piracy and harmed long-term sales.

It really makes you wonder what kind of boards of directors these legacy publishers have, that they'd allow their companies to purposely shoot themselves in the foot, so they could raise prices and put in place windowing, even while recognizing all the harm it causes long term.

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Posted on Techdirt - 30 June 2015 @ 9:03pm

It's 2015 And Congress Is Now, Finally, Allowed To Use Open Source Technologies

from the took-'em-long-enough dept

First, the good news: members of the House of Representatives in the US Congress are now allowed to use open source technology in their offices, rather than the very limited list of proprietary offerings they were given in the past. Second, the bad news: how the hell is it 2015 and this is only becoming an option now? I guess we can't change the past, and so let's celebrate the House of Reps finally getting to this point -- which just happens to coincide with the upcoming launch of the House Open Source Caucus (led by Reps. Blake Farenthold and Jared Polis). We've talked plenty about how little Congress understands technology, software and the internet today -- so actually introducing them to the basics of open source software can only help. And, yes, this comes on the heels of a Congressional rep making a pull request on Github. So, maybe (just maybe) we're starting to see more of our elected officials actually taking the time to understand the technologies that their policies will impact.

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Posted on Techdirt - 30 June 2015 @ 1:40pm

As Uber Crackdown In France Continues, Uber Downloads In France Reach Record Highs

from the marketing-the-controversy dept

We've been covering France's bizarre war against Uber, starting with last week's taxi driver riots in which they overturned Uber cars, set fires, and held drivers and passengers hostage. This was followed by a bizarre caving in by the French government, who didn't go after the taxi drivers for their actions, but rather declared that Uber should be stopped and told law enforcement to seize the cars of Uber drivers. And, yesterday it went up a notch with two top Uber execs in France getting arrested and accused of the horrible crime of "inciting illegal employment" in a country where the unemployment rate continues to rise.

We keep pointing out that the public really seems to like Uber, so this crackdown seems rather bizarre. And, not so surprisingly, it seems to only be creating that much more interest in Uber in France, with the service reaching a record high in downloads since this all went down.

So I decided to take a look at Uber downloads in France, to see what happened during the strike. Not surprisingly, they spiked. In fact, Uber last Thursday was the second-monst downloaded iPhone app in France, which was the first time that had ever happened. Then, on Friday, it hit the top spot.
As Uber has discovered in the past, controversy can be great marketing. But it really makes you wonder what French politicians think they're doing here. Yes, there are some people who really hate Uber, but the public certainly seems to find the service to be pretty damn valuable.

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Posted on Net Neutrality Special Edition - 30 June 2015 @ 9:31am

EU Moves To Create Internet Fast Lanes, Pretends It's Net Neutrality By Redefining Basic Words

from the if-we-just-call-it-net-neutrality,-maybe-no-one-will-notice dept

In 2014, it really looked like Europe was moving towards strong net neutrality, while the US was going to allow for special fast lanes on the internet. In 2015... everything has gone the other way. The US passed real net neutrality rules, while Europe has not only decided to kill net neutrality, but has done so in a way where they pretend that they're actually supporting net neutrality.

In some way, this isn't a surprise. EU Digital Commissioner Gunther Oettinger recently mocked net neutrality and its supporters, saying they had turned it into a "Taliban-like" issue. Then a month ago, rumors started to fly that the weekly "trialogue" meetings between the EU Commission, the Council of the EU and the EU Parliament was looking to ditch net neutrality altogether. Instead, it appears that the final solution was actually to redefine net neutrality to pretend they were offering it, while really killing it. And, as a consolation prize, they're killing off roaming charges around Europe (which can be pretty extreme). But that is little consolation for the fact that they're actually destroying net neutrality in the process.

The little trick being pulled by politicians who apparently think the public is too stupid to understand this is to redefine net neutrality. First, they claim that the "open internet" is really important and they won't allow paid prioritization. This part all sounds good:

The rules enshrine the principle of net neutrality into EU law: no blocking or throttling of online content, applications and services. It means that there will be truly common EU-wide Internet rules, contributing to a single market and reversing current fragmentation.
  • Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet.
  • All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic.
Sounds good, right? But there's a pretty big catch. Those rules and the "open internet" don't cover what most people think of as the internet. Instead, it's been boxed in. Because the deal also creates a made up new categorization known as "specialized services" where such prioritization will be allowed.

What are specialised services (innovative services or services other than Internet access services)?

The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access. These are services like IPTV, high-definition videoconferencing or healthcare services like telesurgery. They use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet. The possibility to provide innovative services with enhanced quality of service is crucial for European start-ups and will boost online innovation in Europe. However, such services must not be a sold as substitute for the open Internet access, they come on top of it.

Got it? The "regular" internet has no fast lanes. But... right over here, we have the "specialized services" part of the internet which, you know, kinda looks like a fast lane. Because it is. So, now, basically, in Europe you can buy your way into the fast lane by claiming your services are "specialized" and watching as the regular internet pokes along at slower speeds.

The agreement does a lot of handwaving to pretend this doesn't destroy net neutrality, but the more handwaving they do, the more obvious it is that the politicians here know exactly what they're doing:

By allowing the provision of innovative services, are we not promoting a two-tier Internet?

No. Every European must be able to have access to the open Internet and all content and service providers will be able to provide their services via a high-quality open Internet. But more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving. These and other services that can emerge in the future can be developed as long as they do not harm the availability and the quality of the open Internet.

Therefore it is important to have future proof rules which, while fully safeguarding the open Internet, allow market operators to provide services with specific quality requirements in order to provide them in safe manner. It is not a question of fast lanes and slow lanes - as paid prioritisation is not allowed, but of making sure that all needs are served, that all opportunities can be seized and that no one is forced to pay for a service that is not needed.

Oh, and of course, the new rules allow zero rating, which is the sneaky trick by which telcos use data caps to backdoor in preferential treatment to those willing to pay, while pretending this is some sort of benefit to consumers. The EU sees no problem with this, despite the fact that it enables large internet companies to squeeze out startups and smaller players.

What is zero rating?

Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume.

Zero rating does not block competing content and can promote a wider variety of offers for price-sensitive users, give them interesting deals, and encourage them to use digital services. But we have to make sure that commercial practices benefit users and do not in practice lead to situations where end-users' choice is significantly reduced. Regulatory authorities will therefore have to monitor and ensure compliance with the rules.

Of course, Digital Commissioner Oettinger inadvertently appeared to confirm that this is the end of net neutrality with his poorly worded tweet on the subject, in which he notes that this is "the end of roaming and net neutrality."
Obviously, he only meant "the end of" to apply to roaming, but having it cover net neutrality as well would be a lot more accurate. Either way, while Oettinger once compared it to a Taliban-like issue, his response has been more on the Orwellian side of things. So long as they redefine the words, the government hopes no one will notice what they actually did. It's the public officials' way of thinking that they're clever and that the public is stupid. That seems like an unwise assumption.

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Posted on Techdirt - 30 June 2015 @ 4:12am

NSA -- Despite Claiming It Doesn't Engage In Economic Espionage -- Engaged In Economic Espionage

from the oh-look-at-that dept

The NSA has long claimed that it does not engage in "economic espionage." NSA and Defense Department officials have repeatedly insisted that while they do lots of other things, economic espionage is not on the list:

“The Department of Defense does engage” in computer network exploitation, according to an e-mailed statement from an NSA spokesman, whose agency is part of the Defense Department. “The department does ***not*** engage in economic espionage in any domain, including cyber.”
These claims are made in a strange attempt to suggest that the NSA is somehow "better" than those like the Chinese, who absolutely do engage in economic espionage, looking for corporate secrets and the like. Of course, it's not entirely clear why not engaging in economic espionage is such an important moral argument for the NSA -- but, at the very least, the agency claims it has its limits.

Of course, it's already been pretty clear that this was more hot air than reality from the NSA anyway. Soon after the first Snowden leaks came out, it was suggested that there was evidence of economic espionage against Germany. Later revelations showed what appears to be economic espionage in Brazil. And, on top of that, we wondered why the US Trade Rep is listed as a "customer" of NSA intelligence if it wasn't doing economic espionage. Oh, and let's not even mention that former CIA boss and Defense Secretary Robert Gates has admitted to trying to do economic espionage, but stopping because the US wasn't very good at it.

Anyway, with all that it should be obvious that of course the NSA engages in economic espionage -- but as if to highlight this even more strongly, Wikileaks has now released more documents showing pretty clear economic espionage in the form of snooping on French finance ministers, looking to get information on "French export contracts, trade and budget talks."

As with the initial revelation that the NSA was spying on the French government, by itself, I don't find this too concerning. Governments spying on other governments is kind of how it goes. But it is notable that there's more evidence of economic espionage when the NSA is so insistent that it absolutely never engages in such tactics. It seems likely that the "out" the NSA would claim here is that it doesn't do economic espionage in the form of spying on companies to try to get their secrets. But it does other forms of economic espionage by spying on government officials engaged in trade deals and such... That seems like a distinction without much meaning.

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Posted on Techdirt - 29 June 2015 @ 11:38am

France Takes Its War On Uber Up A Notch: Arrests Top Execs

from the because-that'll-stop-innovation dept

Last week, we noted some bizarre happenings in France, as taxi drivers unwilling to compete against Uber decided to stage a "protest" which actually looked a lot more like a riot. They overturned Uber cars, held passengers and drivers hostage and lit fires around the country. You might think that this updated version of Luddites smashing machines would lead to a similar result -- getting laughed at and confined to the dustbins of history. But, this is France we're talking about. Politicians quickly ordered a crackdown on Uber including ordering law enforcement to seize the cars of Uber drivers.

And, that's not all. Now it's being reported that two of Uber's top French execs have been arrested.

The pair are believed to be Thibault Simphal,the director general of Uber France and Pierre-Dimitri Gore-Coty,the directorgeneral of Uber Europe.

According to BFM TV the pair are being investigated for "inciting illegal employment", with the Interior Minister Bernard Cazeneuve having already suggested that the pair's insistence on rolling out UberPop was effectively encouraging individuals to break the law.
We had noted, earlier this year, that French law enforcement had raided Uber's offices in Paris, but still. "Inciting illegal employment?" Are they serious? Has anyone looked at the unemployment rate in France lately?
Maybe they need someone out there "inciting illegal employment" because the government doesn't seem to be doing a particularly good job in helping people get employed now, does it?

Cazeneuve continues his role as the cartoonish villain in all of this, making statements that are absolutely bizarre:
"I have given instructions, considering the grave problems with public order and the development of this illegal activity, to the police prefecture in Paris to ban UberPop activities," said Cazeneuve last Thursday.

Cazeneuve also pointed out that Uber could be guilty of the crime of "illicit transportation of people" under article 40 of the penal code, that could be punished by two years in prison and a €300,000.
First of all, "illicit transportation of people?" These are people who want to go somewhere and are happy about the options they have. Why should that be "illicit"?

Second the "grave problems with the public order" are not because of Uber, but because taxi drivers are flipping cars. Why does Cazeneuve not seem even remotely concerned about that?

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Posted on Techdirt - 29 June 2015 @ 10:31am

Supreme Court Won't Hear Oracle v. Google Case, Leaving APIs Copyrightable And Innovation At Risk

from the dangerous-ruling dept

This is unfortunate, even if it was somewhat expected: the Supreme Court has now rejected Google's request to hear its appeal over the appeals court decision that overturned a lower court ruling on the copyrightability of APIs. The lower court decision, by Judge William Alsup (who learned to code Java to understand the issues), noted that APIs were not copyrightable, as they were mere methods, which are not subject to copyright.

The appeals court ruling, by the Court of Appeals for the Federal Circuit (CAFC) (famous for getting patent cases wrong over and over and over again) didn't just get things wrong, it got things laughably wrong, confusing the difference between APIs and software throughout, and quoting people entirely out of context (including taking things so out of context that it often pitted people on the same side against each other, solely because CAFC misread what they were saying). The case was appealed to the Supreme Court, and we were shocked and dismayed to see the Obama administration further reinforce the errors of the CAFC ruling in telling the Supreme Court not to hear the case. The filing by Solicitor General Donald Verrilli repeatedly confused software with APIs and insisted that there was really no difference between the two. That's just wrong. It's not a matter of debate. It's just wrong.

One would have hoped that with a ton of computer science experts explaining to the Supreme Court how CAFC got things wrong, the Supreme Court might recognize that the Obama administration was confused, but for whatever reason, the Supreme Court has declined to hear the case.

This is dangerous. The world of software and innovation relies on the kind of interoperability and the ability to connect via things like APIs. As we've noted, this is like claiming you can copyright an entire language, rather than the creative works written in those languages. Making APIs proprietary and locked up puts a ton of innovation at risk.

As for Google and Oracle directly, this probably doesn't matter much. They're two giant companies, certainly. And now that the case returns to the lower court, they'll either settle or fight it out over fair use (and hopefully win on that front as well). But saying fair use allows this is very, very different than saying there's no copyright on the API. And for smaller companies this will have a tremendous ripple effect, and will undoubtedly lead to a slower pace of innovation. The kinds of touchstones that people build on will no longer happen. Under this ruling, it basically overrules previous rulings that said pull down menus were not copyrightable. But with this ruling in place, it's hard to see how that's still true. Expect to see a bunch of ridiculous lawsuits over minor copying of functions like that.

While this case may eventually be resolved on fair use grounds (or through settlement), there are still two potential areas of hope. First, the "precedential" power of this ruling is actually somewhat limited. CAFC precedents are more or less meaningless in this context. CAFC handles all patent cases, and the only reason it heard this case was because it started as a patent case, even though those issues were resolved much earlier. So, while CAFC has made this particular ruling, it does not mean that the 9th Circuit, where this case was actually heard has to abide by it. The appeals court for the 9th circuit could rule otherwise (though it is somewhat famous for its own nutty copyright rulings).

Perhaps if this issue returns to another appeals court, and that court gets it right, the issue will return to the Supreme Court with a clear circuit split. And by then, we can hope, the people staffing the Solicitor's General office will finally include at least one person who understands the difference between code and APIs.

The really stunning thing in all of this is just how factually wrong many of the arguments were, and that the CAFC and Obama Administration bought them. These weren't questions of interpretation or opinion. They just flat out got the facts wrong, based on an astounding level of ignorance about a rather basic concept of an API not being software. Just because they both look like "code" does not make them both code. It would be nice if the people actually making these decisions weren't so easily fooled by their own ignorance.

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Posted on Techdirt - 29 June 2015 @ 9:27am

Newsday Editor: Carve Hate Speech Out Of First Amendment, Hold Websites Responsible If Users Post Hate Speech

from the this-is-a-newspaper-editor dept

Remember back when newspapers were considered the leading defenders of the First Amendment and free speech? Apparently that's over. Newsday (the newspaper I grew up reading) has an editorial up by Anne Michaud (the publication's "interactive editor") in which she argues for a dismantling of the First Amendment when it comes to "hate speech." These kinds of arguments have become popular again lately (in fact, many in the US seem to think that hate speech is already not protected under the First Amendment). Michaud's piece starts out by highlighting how she, herself, explored the white supremacist world a few years ago:

Years ago, I took a journalistic excursion through the nation's white supremacist scene. I read books and spoke with professors, attended rallies with Aryan Nations members and Keystone Skinheads and interviewed their leaders....

When I heard about Dylann Roof, I suspected that he had trod the same path.
And yet... Michaud did not become a white supremacist. She did not become a racist. She did not post racist, hateful things on websites, nor did she go and kill nine people solely based on the color of their skin. Perhaps, just perhaps, there was more to Dylann Roof's racist hatred than the fact that he could surf some ignorant, hateful websites. But Michaud does not consider that. Instead, she argues not just that we should carve hate speech out of the First Amendment, but that websites should be held responsible if their users post such hate speech:
We should consider whether people who run such websites bear some responsibility for the nine dead at Charleston's Emanuel African Methodist Episcopal Church. It would be difficult, but perhaps we should carve out an exception to our First Amendment protection of free speech to hold people accountable for hate speech.
I can totally understand the emotional appeal of such a "solution." However, it is possible (as I believe) to abhor hate speech itself -- find it horrifying and ignorant -- yet at the same time worry about the implications of trying to carve it out of the First Amendment, and to undermine intermediary liability at the same time.

First, defining hate speech is not nearly as easy as some people like to believe. People think it's easy -- in the "I know when I see it" kind of way, but inevitably it becomes quite the slippery slope and turns into "people saying mean things." In political discourse, for example, it is not uncommon for people opposed to this or that political party to gleefully describe their hatred of members of that party. I find this to be silly and counterproductive, but should it be a crime? Should political websites that encourage comments attacking the opposing political party be held legally liable for such "hate speech?" Once you give an exception to "hate speech," you only open a huge can of worms as people look to use that exception as a way to stifle and censor all kinds of speech they dislike.

Remember that parody of an anti-hate speech rant we wrote about a few months ago (which some still insist was not a parody but the actual beliefs of some people)? Whether it was a parody or the earnest feelings of someone, it shows how quickly things can morph from "hate speech" into really gray areas -- including political speech and just general opinions.

But here's the bigger issue that no one seems to discuss: outlawing "hate speech" doesn't make it go away. It doesn't make people stop feeling hate. Hate speech tends to be the product of ignorance, and making the ignorant feel persecuted and outcast doesn't tend to lead them to suddenly getting educated. It tends to lead them to even greater resentment, and often a belief that they must be on the right track, since people are trying so hard to shut them up. You combat hate speech with more speech, not by censoring speech.

People say horrible things. Things we absolutely disapprove of and disagree with. But they have the right to say those things, and others have the right to speak out against them, to highlight the ignorance, and even to shame and expose the ignorance itself. Shoving it down into the darkness and pretending that you've somehow "dealt with" the problem doesn't help. These people still believe what they believe. Hiding it in the dark doesn't change that. If this country really wants to confront racism and hatred, making it illegal for people to express their beliefs (no matter how ridiculous) doesn't fix anything. It just hides the real problems and lets them fester. You need to expose hatred, ignorance and bias if you're going to confront it. Yet, Michaud and others want to sweep it under the rug.

And, of course, Michaud uses the usual tropes against free speech, including pointing out that there are some existing exceptions to the First Amendment, so there should be no problem adding more:
In the United States, we prize our freedom to speak, but in fact our laws uphold many limits. Sedition, for example, or advocating force as a way to change the government, is illegal. Threats, defamation, false advertising and profanity on public airwaves are illegal. Companies protect trade secrets, and courts enforce gag orders in legal settlements.
At least she didn't trot out "fire in a crowded theater." However, the fact that she leads with "sedition" is an interesting choice, given the history of the US using laws against sedition to crack down on political speech the government disliked.

It's perfectly reasonable to be angered and horrified at ignorant, racist, bigoted hate speech. It's perfectly reasonable to be concerned about those who spew such idiocy. But it's something else entirely to argue that because you dislike it, others should not be allowed to speak their beliefs. That a newspaper editor would advocate for such things seems particularly bizarre and counterproductive.

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Posted on Techdirt - 29 June 2015 @ 8:01am

MPAA Targets New Anti-Piracy Ads... At People Who Already Paid To Go See Movies

from the strategery! dept

There's that old joke that you've probably heard (in part because we've mentioned it in other contexts), about the drunk man searching for his keys under a streetlight, while admitting that he lost them further down the street. When asked why he's looking over by the light instead, he says "because that's where the light is." People even refer to this as the streetlight effect. And you can see it in all sorts of odd places.

Here, for example, is the MPAA, the guardian of Hollywood's old way of doing business, launching a big new "anti-piracy ad campaign" by... advertising to the people who already paid to see movies in the theater:

The “I Make Movies” videos, which will run in 300 AMC theater locations and a handful of regional chains, spotlights the movie workers behind-the-scenes: a costume illustrator, seamstress, picture car coordinator, carpenter, and set designer.
These spots will be showing in theaters across the country, because that's exactly what people who just paid huge sums of money to watch a movie want to see: an extra commercial before the film they paid to see telling them them to stop being dirty pirates, with the usual claptrap about all of the poor workers that piracy impacts (leaving aside that those people aren't paid based on movie revenue...).

It's the streetlight effect all over again. The incompetent and ineffective Chris Dodd-run MPAA feels the need to do something, so they fall back on the same old game plan:
"Hey, let's advertise to try to make people feel guilty!"

"That's never worked before despite us trying for decades."

"This time it will work! It must work! Because they must all feel guilty! And once they see how guilty they should really feel, they'll stop pirating! Because I have no other ideas!"

"Okay, but where will we best place these advertisements to reach the right people?"

"I've got that one all planned out! We'll get them in the best possible spot: in the movie theaters! The theaters will show those ads for free and we've got a real captive audience!"

"But it's a captive audience who has already shown that they're willing to pay. Why should we advertise to them?"

"Didn't you hear me!?!? It's a captive audience and the theaters will let us do it for free! Piracy is solved!"
Good luck, guys. Once again, if you're looking for better ideas, maybe fire the content protection team, and hire some folks who actually get the internet.

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Posted on Techdirt - 26 June 2015 @ 7:39pm

Guy Writes New James Bond Book... Only Available Where Bond Is In The Public Domain

from the get-it-now dept

Since I run Techdirt, book publishers frequently push random books on me. Sometimes they just send the books. More frequently they send me announcements about books to see if I might be interested. Most go directly in the recycle bin. But one that came in just recently caught my eye -- and not because of the subject matter. Usually the books are about the tech industry or politics or something. But this was a James Bond story. I almost tossed it out immediately, assuming someone mail merged the wrong press list -- but then I realized why we were on the list. James Bond recently went into the public domain in Canada, raising some interesting questions over what that meant -- since 007 is still protected by copyright in the US and some other countries. So, now it appears that some guy named Curtis Cook has decided to write himself his own Bond book, and the press release touts the fact that it's because Bond is in the public domain in Canada.

At the end of the letter, it notes that review copies are available worldwide, but that "commercial sales [will be] limited to Canada and other countries that are "life plus 50" Berne rule signatories." In other words, don't expect to see the book in the US, unless you snag a review copy.

Of course, the book may be absolutely terrible. But it does seem interesting that this book can only be sold in certain countries -- and not in the US -- thanks to copyright law. Something seems fundamentally wrong about that -- but I guess that people who live in countries outside the US who frequently experience ridiculous geoblocks will note that this is just a physical form of the same thing, but in reverse.

In the meantime, with Bond in the public domain in Canada, it's not just new Bond books we're seeing, but other interesting projects as well -- such as a new unauthorized anthology of Bond stories called License Expired. I imagine plenty more is on the way as well. All this creativity... and none of it can touch the United States. Because of our broken copyright system.

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