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Posted on Free Speech - 18 October 2017 @ 1:33pm

Incentivizing Better Speech, Rather Than Censoring 'Bad' Speech

from the there-are-other-solutions dept

This has gone on for a while, but in the last year especially, the complaints about "bad" speech online have gotten louder and louder. While we have serious concerns with the idea so-called "hate speech" should be illegal -- in large part because any such laws are almost inevitably used against those the government wishes to silence -- that doesn't mean that we condone and support speech designed to intimidate, harass or abuse people. We recognize that some speech can, indeed, create negative outcomes, and even chill the speech of others. However, we're increasingly concerned that people think the only possible way to respond to such speech is through outright censorship (often to the point of requiring online services, like Facebook and Twitter to silence any speech that is deemed "bad").

As we've discussed before, we believe that there are alternatives. Sometimes that involves counterspeech -- including a wide spectrum of ideas from making jokes, to community shaming, to simple point-for-point factual refutation. But that's on the community side. On the platform side -- for some reason -- many people seem to think there are only two options: censorship or free for all. That's simply not true, and focusing on just those two solutions (neither of which tend to be that effective) shows a real failure of imagination, and often leads to unproductive conversations.

Thankfully, some people are finally starting to think through the larger spectrum of possibilities. On the "fake news" front, we've seen more and more suggestions that the best "pro-speech" way to deal with such things is with more speech as well (though there are at least some concerns about how effective this can be). Over at Quartz, reporter Karen Hao recently put together a nice article about how some platforms are thinking about this from a design perspective... and uses Techdirt as one example, in how we've created small incentives in our comment system for better comments. The system is far from perfect, and we certainly don't suggest that every comment we receive is fantastic. But I think that we do a pretty good job of having generally good discussions in our comments that are interesting to read. Certainly a lot more interesting than other sites.

The article also discusses how Medium has experimented with different design ideas to encourage more thoughtful comments as well, and quotes professor Susan Benesch (who we've mentioned many times in the past), discussing some other creative efforts to encourage better conversations online, including Parlio (which sadly was shut down after being purchased by Quora) and League of Legends -- which used some feedback loops to deal with abusive behavior:

In one experiment, Lin measured the impact of giving players who engaged in toxic behavior specific feedback. Previously, if a player received a suspension for making racist, homophobic, sexist, or harassing comments, they were given an error message during login with no specifics on why the punishment had occurred. Consequently, players often got angry and engaged in worse behavior once they returned to the game. League of Legends reform card.

As a response, Lin implemented “reformation cards” to tell players exactly what they had said or done to earn their suspension and included evidence of the player engaging in that behavior. This time, if a player got angry and posted complaints about their reformation card on the community forum, other members of the community would reinforce the card with comments like, “You deserve every ban you got with language like that.” The team saw a 70% increase in their success with avoiding repeat offenses from suspended users.

However, the key thing, as Benesch notes, is getting past the idea that the only responses to speech a large majority of people think is "bad" is to take it down and/or punish the individual who made it:

“There is often the assumption in public discourse and in government policymaking and so forth that there are only two things you can do to respond to harmful speech online,” says Benesch. “One of those is to censor the speech, and the other is to punish the person who has said or distributed it.” Instead, she says, we could be persuading people not to post the content in the first place, rank it lower in a feed, or even convince people to take it down and apologize for it themselves.

Obviously, there are limits on all of these options -- and anything can and will be abused over time. But by at least thinking through a wider range of possibilities than "censor" or "leave everything exactly as is" we can hopefully get to a better overall solution for many internet discussion platforms.

Meanwhile, Josh Constine, at TechCrunch recently had some good suggestions as well specifically for Twitter and Facebook for ways that they can encourage more civility, without resorting to censorship. Here's one example:

Practically, Twitter needs to change how replies work, as they are the primary vector of abuse. Abusers can @ reply you and show up in your notifications, even if you don’t follow them. If you block or mute them, they can create a new throwaway account and continue the abuse. If you block all notifications from people you don’t follow, you sever your connection to considerate discussion with strangers or potential friends — what was supposed to be a core value-add of these services.

A powerful way to prevent this @ reply abuse would be to prevent accounts that aren’t completely registered with a valid phone number, haven’t demonstrated enough rule-abiding behavior or have been reported for policy violations from having their replies appear in recipients’ notifications.

This would at least make it harder for harassers to continue their abuse, and to create new throwaway accounts that circumvent previous blocks and bans in order to spread hatred.

There may be concerns with that as well, but it's encouraging that more people are thinking about ways that design decision can make things better, rather than resorting to just out and out censorship.

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Posted on Techdirt - 17 October 2017 @ 11:58am

Sorry, You Can't Abuse Copyright Law To Make A Negative Review Disappear

from the copyright-as-censorship dept

Over four years ago, we first wrote about the bizarre and convoluted attempt by a lawyer named Richard Goren to remove a negative review on Ripoff Report. As we noted, he may very well have a totally legitimate defamation claim against the guy who wrote the review, but it's the events that happened later that were questionable. Goren did sue the author of the post -- "Christian Dupont" -- for defamation and won a default judgment when Dupont ignored the lawsuit. But here's where things get problematic: the state court where the case was brought, as part of the default judgment, assigned the copyright on the posts to Goren. He then turned around and claimed that the post on Ripoff Report was infringing on his copyright and sued the company behind Ripoff Report, Xcentric (he also, somewhat bizarrely, added Dupont as a plaintiff in the case alongside himself -- something Ripoff Report claims was invalid). It also tossed in a bunch of other claims, including libel and intentional interference with prospective contractual relations.

The case has spent four years winding through the courts, and the 1st Circuit appeals court has now rejected Goren's argument, and done so fairly comprehensively. For the non-copyright claims, it was quite easy to dismiss them under CDA 230, as Ripoff Report was not the publisher of the works, and therefore, not liable for what was said -- and cites a number of well known cases highlighting how this is totally uncontroversial, including our own case as yet more evidence of the First Circuit recognizing the broad protection of CDA 230:

As we explained in Lycos, immunity under § 230 should be "broadly construed." 478 F.3d at 418-19. In fact, we noted there that Congress has expressed a "policy choice . . . not to deter harmful online speech through the . . . route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages." Id. at 418(quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997))(omissions in original). Given that legislative policy choice, we do not see how we can construe the CDA's definition of an ICP -- which provides that an ICP is a "person or entity that is responsible . . . for the creation or development of information[,]" 47 U.S.C. § 230(f)(3) -- to encompass Xcentric in this case.

Such a construction of this statutory definition of an ICP would flout Congress's intent by wrongly preventing an ICS like Xcentric from claiming immunity. Lycos, 478 F.3d at 418. As the plaintiffs recognize, Xcentric did not alter the content of the information DuPont posted such that Xcentric could be said to have been "responsible for . . . creat[ing] or develop[ing]" that content by reason of having actually authored it, whether in whole or in part. In addition, as the District Court found, nothing in the amended complaint indicates that Xcentric, simply by holding itself out as the copyright holder of the postings or by directing search engines to cache DuPont's postings on their websites, "specifically encourage[d]" the content set forth in DuPont's postings.

In fact, a sister circuit has rejected the view that an ICS, by merely providing such direction to search engines with respect to information the ICS has not altered, becomes an ICP of that information. See Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270- 71 (9th Cir. 2016) ("Yelp is not liable for disseminating . . . [user-generated] content in essentially the same format to a search engine, as this action does not change the origin of the third-party content." (citing Ascentive, LLC v. Op. Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011))); see also Ayyadurai v. Floor64, Inc., No. 17-10011-FDS, 2017 WL 3896668, *17 (D. Mass. Sept. 6, 2017) (analyzing cases from other circuits which determined that "republishing and commenting upon user generated content, does not constitute 'creation or development.'" (citation omitted)). And we do not see why that conclusion should differ if the ICS also represents that it holds the copyright. Nor are we aware of any precedent that requires a contrary conclusion. Accordingly, we affirm the District Court's ruling on the motion to dismiss.

On to the copyright claims. The issue here is that when first posted, Ripoff Report required Dupont to agree to terms saying that anything you posted you were officially licensing to Ripoff Report, and that license was "irrevocable." This one seems like it should be easy. When the content was posted, an irrevocable license was granted, and thus even if the copyright later changes hands, as in this case, it's not infringing to keep the content up. To argue against this, Goren claimed that because it was a standard clickthrough license, it was not a valid license that Dupont had signed, first because there was no "consideration" given to the poster as required for a license to be valid. The court, correctly, rejects this argument:

The problem with this argument, however, is that, even if consideration is necessary in order for a party to grant an irrevocable nonexclusive license... performance can itself constitute consideration sufficient to establish a binding contract. And, in this case, the plaintiffs concede that Xcentric did actually post the reports at issue. Thus, given that performance, the plaintiffs offer no authority or persuasive argument as to why there is insufficient consideration for the conveyance of the irrevocable nonexclusive license in this case.

The next argument feels even more desperate. Goren argued that such an irrevocable license can't be valid because it's bad public policy, because libel is bad. The argument is only marginally more sophisticated than that, and the court again, is not impressed:

But, while the plaintiffs contend that there is a "strong public policy against per se libel[,]" the plaintiffs offer no basis for concluding that this public policy provides a reason to hold the nonexclusive license itself invalid. The fact that one holds such a license does not in and of itself protect one from liability for libeling another. Furthermore, even assuming that DuPont's postings were per se libelous, no aspect of copyright law protects the holder of such a license from liability for libel, and nothing in the District Court's opinion suggests otherwise. Thus, the plaintiffs' assertion that there is a public policy against per se libel fails to show that this nonexclusive license may not be enforced.

There were a few other aspects of the case (including some confusion over the lower court's ruling and whether or not it thought the license actually transferred the copyright itself to Xcentric), but on the key issues, things turned out basically exactly as we expected four years ago. CDA 230 protects against blaming the platform for the user's speech, and you can't worm your way around that by convincing a court in a default judgment to hand over the copyrights and then claim infringement over properly licensed content.

But there is one other important point here. Goren also has to pay Xcentric/Ripoff Report over $120,000 in legal fees and costs. In copyright cases, awarding attorneys fees is more common than in many other types of cases. The Supreme Court recognized this back in its Fogerty ruling in 1994, which it reinforced just last year in one of the Kirtsaeng cases. While there are specifics to the standard, the short version is that if the court thinks you're abusing the judicial system with your copyright case, not only do you lose, but you pay the other side's legal fees. And the appeals court agreed with the lower court that this clearly applied to this case, and pointed out that the district court properly analyzed the Fogerty factors -- and thus, Goren's little adventure into censorship-by-copyright, with a slight detour into default judgment land, is not just a failure, but a fairly costly one.

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Posted on Techdirt - 17 October 2017 @ 9:31am

The 'Gawker Effect' Is Chilling Investigative Reporting Across The US

from the this-is-a-problem dept

When the jury verdict against Gawker came down a year and a half ago, we warned of how problematic it was. We pointed out that it was a big deal even if you absolutely hated Gawker and wanted to see them destroyed. Because, as we noted, the playbook used against Gawker could be used against lots of other publications.

And it's clearly impacting a number of others as well. A couple months ago, we wrote about how the "Gawker Effect" had made it very difficult for a huge investigative piece on R Kelly "holding women against their will" by Jim DeRogatis (a music reporter who has broken a number of R Kelly related stories over the years) to find a home to get published. Lots of publishers wouldn't touch it, not because the reporting wasn't solid, but because they didn't want to face the possibility of libel lawsuits, no matter how silly.

This is happening more and more often these days, including over important stories. Over at the Columbia Journalism Review, Kim Masters has a thoughtful, but depressing, article about how this "Gawker Effect" nearly killed another key story about sexual harassment in Hollywood -- involving Amazon exec Roy Price (who runs Amazon's Hollywood efforts) allegedly sexually harassing Isa Hackett, a producer on the Amazon hit show "The Man in the High Castle." The article was eventually published at The Information (behind a paywall). Last month, there was an article at Recode speculating that other publications passed on the story because Price, like Hulk Hogan (and like Harvey Weinstein and like Shiva Ayyadurai, the plaintiff in a lawsuit against us), employed lawyer Charles Harder. In the Recode piece, The Information's CEO, Jessica Lessin is quoted as saying that other publications passed because of threats from lawyers:

Lessin, referencing the Masters story, wrote that “we recently published a version of a story that three other publications passed on after very high-priced lawyers promised to sue them."

The Recode piece also quotes people from other publications who argued that there were other reasons for passing -- including that the earlier versions of Masters' story didn't have enough on-the-record sources. For what it's worth, one of the publications that passed -- the Hollywood Reporter -- recently made new headlines in this story by getting an interview with Isa Hackett, in which she revealed more details about Price's behavior towards her.

In the CJR piece, Masters shares more of the details of what happened behind the scenes, and how pressure was applied, via legal threats, to try to kill the story. It's at least marginally troubling that she notes it wasn't just Charles Harder who was making the threats, but also well-known lawyer Lisa Bloom. Bloom was, somewhat famously, also part of Harvey Weinstein's "legal team" which struck many people as odd, since her reputation was for representing the victims of sexual harassment and assault, not the other side. A few days after the Weinstein stories came out, Bloom said she was no longer working for Weinstein (also, recently, Harder claimed he has also stopped working for Weinstein despite earliler promising a lawsuit). She told the Hollywood Reporter, she worked with him to "change the way these stories go." And, more specifically to avoid the pattern of "when the story comes out, attack the accuser, deny, deny, deny, and fight like hell" because, as Bloom told THR: "I know how damaging that is to them, how hurtful, how scary. It’s emotionally devastating." Over the weekend, she told Buzzfeed something similar:

“All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

But Masters notes that Bloom and Harder together threatened the reporting she did on Price:

People in Hollywood and the media world were surprised my byline ended up in The Information, given that I worked at The Hollywood Reporter. (My editor there, Matthew Belloni, said in a Recode article about my difficulties getting the story published that “any suggestion that a story on this topic didn’t run because of outside pressure would be false.”) THR did allow me to shop the story elsewhere, but it came with a guaranteed threat of litigation from Price’s attorneys. Over the weeks that would follow, as I began searching for a home for my scoop, Harder and Bloom convinced every publication that considered my story that they weren’t just threatening legal action but would indeed sue.

Perhaps that threat was so convincing because Harder had handled Hogan’s devastating suit against Gawker with backing from billionaire Peter Thiel. In her zeal to protect her client—who has yet to address any of the allegations in my piece publicly—Bloom claimed that I had turned on Price after he rebuffed my demand to have Amazon underwrite The Business, the public-radio show that I host on KCRW. I can’t guess who concocted that allegation, but I assume the idea was to establish a potential argument that I had behaved unethically and had a personal grudge against him and therefore didn’t care what the facts were. (Since Price is a public figure, his only hope of prevailing in court would be to argue that I published information I knew to be false or acted in reckless disregard of whether it was false.)

When I first read the claim in an email from Bloom, I was angry, but I also laughed because it was ridiculous. I’ve never discussed underwriting with anyone, even internally at KCRW. I don’t know the first thing about it. I’m told Bloom insisted she had proof, though of course none was produced. My editor at THR told her that the story was false, but she repeated it to other publications nonetheless. (Bloom on Thursday said she no longer is working with Price.)

Masters admits that the earlier work didn't yet have the full on-the-record statement from Hackett, which was necessary to make the piece publishable, but does note how much the legal hounding from Bloom and Harder made it that much more difficult to get a publication to go with the piece.

By the time I was done, I had talks with more than six publications and went through legal review at three. The anxiety is always high when there’s a threat of a lawsuit around a story, but this time, it seemed off the charts. At one point, an attorney reviewing the piece only sputtered when I asked her to explain what, exactly, was legally problematic with portions of the story that she wanted to delete. She literally could not construct a sentence to explain her reasoning.

There's a lot more in Masters' piece that is worth reading and that highlights just how damaging the Gawker Effect has become. Again, even if you absolutely hated Gawker and cheered its demise, you should be concerned with what it has wrought. Masters hopes that with the Weinstein story getting so much attention it will help "change the environment" and encourage more people to come forward, and to embolden more publishers to publish these kinds of investigative reports.

However, there's still a missing piece here. Masters is right that these legal threats are a problem, and hopefully the attention brought about from exposing sexual harassers will embolden more publishers to publish these articles, even in the face of coordinated legal threats -- but what we still really need are stronger anti-SLAPP laws in various states (some of which still have none, and many of which have very weak ones). Or, even better, a comprehensive federal anti-SLAPP law. Such a law would allow publications to have more confidence in publishing such exposes of bad behavior by the rich and powerful, since they could push back against bogus legal threats by noting that filing a lawsuit probably won't get very far, and almost certainly would force the plaintiff to pay legal fees. We've been calling for such a federal anti-SLAPP law for nearly a decade, and I hope we're not still calling for one a decade from now. Masters' story is yet more evidence that Congress needs to act, now.

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Posted on Techdirt - 16 October 2017 @ 3:39pm

Neighbor Sues For $2.5 Million After Renovation Looks Too Much Like Their Own House

from the copyright-madness dept

Copyright on home design has always been a really sketchy idea. Earlier this year, we wrote about a disturbing trend of housing copyright trolls and have had some other similar stories over time. For reasons that are beyond me, the Berne Convention requires copyright on architecture, and that creates silly situations, such as the one in Australia, where a homeowner was forced to modify their home due to "infringement."

And this nonsense has spread to Canada. The Toronto Star has the story of a couple, Jason and Jodi Chapnik, living in Forest Hill, Toronto (one of the "most affluent neighborhoods" in Toronto), who sued their neighbors for $2.5 million for the horrific faux pas of renovating their house to look too much like the Chapniks.

Jason and Jodi Chapnik, who own the home on Strathearn Rd., near Bathurst and Eglinton Sts., alleged that a house on nearby Vesta Dr. was newly renovated to look “strikingly similar” to theirs — including using the same shade of blue and matching grey stonework.

The Chapniks filed a lawsuit against neighbour Barbara Ann Kirshenblatt, her builder husband and architect brother-in-law for copyright infringement in federal court, as well as the real estate agent who profited from the house’s recent sale and the anonymous contractors who worked on the house. They were seeking $1.5 million in damages, $20,000 in statutory copyright damages, $1 million in punitive damages, and a mandatory injunction on the defendant to change the design of the home.

Of all the things in the world to be concerned about, how totally screwed up must your priorities be to freak out that someone around the corner has a house that looks kinda similar? The story notes that the case went on for 3 years, before recently being settled. As Kirshenblatt noted in filings in the case, nearly all of the so-called copied features appear to be pretty standard features you'd see in nearly any Tudor-style house -- and they pointed to other properties (including a Scottish castle) with similar features that they based their house on.

The whole thing is a reminder, yet again, of the ridiculousness of locking up ideas like home design under copyright. No one is inspired to design a house because of the copyright you get. There is no necessary incentive there. People design homes not for the copyright, but for the home. What a complete waste of time.

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Posted on Techdirt - 16 October 2017 @ 12:00pm

Australia's National Rape Hotline Run By Insurance Company, Who Demands All Sorts Of Private Info

from the this-is-not-good dept

Australia is providing a fairly stunning case study in how not to set up a national hotline for sexual assault, rape, domestic abuse and other such situations. It has a service, called 1800Respect, which lets people call in and be connected to trained counselors from a variety of different call centers around the country. However, as Asher Wolf informs us, a change in how the system will be managed has created quite a shit storm, and leading one of the major providers of counselors to the program to remove itself from the program -- meaning that it will likely lose government funding and may go out of business entirely.

The issues here are a bit convoluted, but since its inception, 1800Respect has actually been run by a private insurance company, Medibank Health Solutions, who partners with organizations who can provide qualified counselors. One of the big ones is Rape & Domestic Violence Services Australia (RDSVA). While it already seems somewhat troubling that a private insurance company runs the "national" rape and domestic violence hotline -- it's even more troubling when you find out that the company views the service as a profit center:

Earlier this year Medibank healthcare and strategy group executive Andrew Wilson told The Australian that the services offered, which include BeyondBlue, Nurses on Call and After-hours GP as well as 1800 RESPECT, are an active part of their business.

"We have put a stake in the ground and said we'd like to double the operating profit of this part of the business in the next three years."

Over the past year, Medibank changed how the service was run, having the first line of people responding to calls doing more of a triage effort to figure out who really needs to talk to a counselor and who can just be pointed to information. Medibank claimed this was to better serve callers' needs -- and to enable more people to reach a counselor, but there have been lots of concerns about this.

And it came to a head a few weeks ago, when RDSVA, whose contract with 1800Respect was up, announced that it was leaving the program entirely, in part because part of the new contract demands from Medibank would have involved having to hand over all of the confidential notes it had on callers.

The new 1800RESPECT contract written by Medibank required Rape & Domestic Violence Services Australia to handover all client file notes resulting from the past six years of counselling for the 1800RESPECT service. We firmly believe that this would breach client confidentiality and contradict Australian privacy legislation.

This requirement causes even greater concern due to Medibank’s position that they will not evoke communications privilege to protect client confidence. Medibank have also provided limited guarantees for the protection of counselling notes if Medibank were to be sold. It is the view of Rape & Domestic Violence Services Australia that this requirement of the contract cannot be met legally or ethically.

The concerns about Medibank are hardly theoretical. Just a couple years ago the company had a major security breach, sending all sorts of details on Australian military personnel to China.

RDVSA also notes other problems with the contract, including requiring that all notes be kept in an online service from Medibank, that RDVSA says it evaluated for its own needs and found that it was not sufficient. And then there's stuff about call recording, and whether or not those recordings will be protected from being accessed in a lawsuit:

Rape & Domestic Violence Services Australia is deeply concerned that the new contract would require counsellors to sign an agreement directly with Medibank for their counselling calls to be recorded. Callers to 1800RESPECT may now experience not only the written documentation being provided to the Courts but they may also experience release of the voice recording.

Sexual assault and domestic violence services have worked over many years with government to establish communications privilege to protect client’s therapeutic records from being misused in legal proceedings. Medibank holds a position that it will not engage in communications privilege actions when client files are subpoenaed.

There's more to it as well, but especially when talking about information as sensitive as sexual assault hotline calls, which may create very real risks of more violence or even death for those who choose to call, the entire setup here sounds horrifying. The focus of such a hotline shouldn't be turning it into a larger profit center for an insurance company, but rather 100% focused on helping those calling in -- and that includes protecting their privacy.

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Posted on Techdirt - 13 October 2017 @ 12:00pm

Statute Of Limitations Has Run Out On Trump's Bogus Promise To Sue The NY Times

from the fake-news dept

A year ago, we wrote in great detail about just how ridiculous it was that then Presidential candidate Donald Trump's lawyers had threatened to sue the NY Times over a story about two women who claimed that Trump had groped them inappropriately. Trump insisted to the NY Times that none of it happened, and one of his favorite lawyers, Marc Kasowitz sent a letter calling the story "reckless, defamatory, and constitutes libel per se." It also demanded the article be removed from the Times' website and that a "full and immediate retraction and apology" be posted instead. The letter insisted that "failure to do so will leave my client with no option but to pursue all available actions and remedies."

Of course, as we noted at the time, there was basically no chance that Trump would actually sue. The NY Times hit back hard with its response, and it's not a paper easily intimidated by bogus legal threats. Still, it is noteworthy that this week the one year statute of limitations on defamation claims (in New York) passed... and no lawsuit has been filed (though, amusingly, as the Hollywood Reporter points out, the Kasowitz letter demanding a retraction is still posted to Trump's website).

As we said last year about this story, it was even more evidence for why we need a strong federal anti-SLAPP law (or, at the very least, stronger state anti-SLAPP laws). New York's anti-SLAPP law remains painfully weak. And while that might not matter directly, since Trump didn't sue, the rise in these kinds of lawsuits and similar threats of lawsuits would be helped tremendously with stronger laws protecting those who the powerful seek to censor and scare. Obviously, Trump might not be too keen on signing such a law right now, but Congress should be working on this. SLAPP suits are becoming an entire industry, helping the rich and powerful silence critics. Congress has the power to stop this abuse of judicial process, and it should follow through.

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Posted on Free Speech - 13 October 2017 @ 9:33am

Trump May Not Be Serious About His NBC Threats... But He May Have Violated The First Amendment

from the you-can't-silence-people dept

By now, you've almost certainly heard about President Trump's multiple tweet attack on NBC for having a story he didn't like. A few times, Trump has suggested that NBC should "lose its license" because he doesn't like the company's reporting.


Separately, he said during a press conference the rather insane comment: "It's frankly disgusting the way the press is able to write whatever they want to write, and people should look into it." Again, the First Amendment is a big part of why the press is allowed to write whatever they want to write.

As plenty of people have pointed out -- including FCC Commissioner Jessica Rosenworcel -- this is not how it works... on multiple levels. First of all, NBC doesn't have a license that can be revoked. Local affiliates have the licenses, but that's different -- and those licenses are effectively impossible to revoke because the system was set up to avoid situations like a President trying to censor a TV news station.

But there are some much larger issues here, and a big one is that merely having the President threaten to punish a news organization itself may very well be a First Amendment violation. Now, some people will argue that Trump has his own First Amendment rights to whine about anyone he wants... but courts have already noted that if done as part of their role as a government official, that power is limited. Back in 2015, for example, we wrote about a fantastic 7th Circuit ruling by Judge Richard Posner in which he slammed Cook County Sheriff Thomas Dart for using his position to threaten payment companies into not working with Backpage.com.

Posner lays out, in great detail, how a government official, making threats, can violate the First Amendment.

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive .... What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

And this:

The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands....

Posner also dispenses with the argument that a person is free to say what he wants here, noting that when he speaks, he's using his position in the government to enforce silencing of speech.

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

And to make the point even clearer on where the line is drawn:

Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats

Trump has complained about news stations in the past -- and that's his right. But when he threatens to silence them by pulling their license (even if that's impossible) he is now directly using the power of government to threaten someone for protected expression. That's... violating the Constitution that the President has taken an oath to uphold.

Of course, that's just a recent 7th Circuit ruling. There are other circuits with similar rulings, such as the 2nd Circuit's Okwedy v. Molinari case, in which the court found that Staten Island Borough President sent a letter to a billboard company to complain about some billboards with anti-gay bible verses. In that case, amazingly, there wasn't even a real threat of action -- just a letter which called the billboards "unnecessarily confrontational and offensive" and said that "this message conveys an atmosphere of intolerance which is not welcome in the Borough." There was no direct legal threat, even, just a request to discuss and to act "as a responsible member of the business community." In that case, the court found that even without the explicit threat, it was a First Amendment violation:

Thus, the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff's message, is not necessarily dispositive in a case such as this. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That could certainly apply to Trump's statements.

There are some Supreme Court cases that are on point as well. The most famous is the classic 1963 free speech case Bantam Books v. Sullivan. In that case, the Supreme Court found that a Rhode Island commission focused on stamping out obscene/indecent/impure images and language in publications was unconstitutional. The Commission didn't have the direct power to censor -- but rather would create lists of items the majority of the Commissioners deemed objectionable, and then (1) notify the publisher, (2) notify retailers and (3) pass along a recommendation of prosecution. The state argued that since there was no direct power to censor, there was no First Amendment violation. The court disagreed, noting that mere intimidation was violating the First Amendment rights of the publishers.

It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact—and the finding, being amply supported by the record, binds us— that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity

In short, there's a pretty broad range of case law both at the appeals court level and at the Supreme Court saying that merely threatening action to suppress protected speech is, in fact, a First Amendment violation. Would NBC actually have the guts to sue over this? That's much harder to say -- but it sure would make for an interesting case.

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Posted on Techdirt - 12 October 2017 @ 3:44pm

Internet Archives Liberates Old Books Using Never Used Before Provision Of Copyright Law

from the library-public-domain dept

Section 108 of copyright law doesn't get very much attention (though, we did just mention it in regards to an archive of Howard Stern/Donald Trump interviews). It's the part of the law that grants some fairly narrow exceptions to copyright for libraries and archives. In short, it was a recognition that libraries and archives are good and important things, and copyright law under the 1976 Copyright Act would basically make them illegal. Rather than fixing the fact that copyright law was too broad, Section 108 simply carved out a few important exceptions. Many of those exceptions are, unfortunately, under attack from all the usual sources.

However Section 108 is important to protect until we fix wider problems with copyright law. Of course, some parts of 108 have rarely, if ever, been tested. The Internet Archive is looking to fix that. It just announced that it is making a bunch of books published between 1923 and 1941 available on the Archive. As you may know from the handy dandy public domain term chart at Cornell, thanks to the 1976 Copyright Act (and various extensions) tons of works that should have been in the public domain long before now have been locked up and unavailable. The key date is 1923. Works before that are clearly in the public domain. After that, it gets... fuzzy.

But, Section 108(h) has a neat little exception for libraries and archives:

(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized under this subsection if—

(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

And thus, the Internet Archive believes it's free to make a bunch of out of print books available:

The Internet Archive is now leveraging a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold. Elizabeth Townsend Gard, a copyright scholar at Tulane University calls this “Library Public Domain.”  She and her students helped bring the first scanned books of this era available online in a collection named for the author of the bill making this necessary: The Sonny Bono Memorial Collection. Thousands more books will be added in the near future as we automate. We hope this will encourage libraries that have been reticent to scan beyond 1923 to start mass scanning their books and other works, at least up to 1942.

As the Internet Archive's Brewster Kahle notes, it's unfortunate and disappointing that it even needs to make use of this clause, because copyright was never supposed to last this long in the first place. The idea that stuff published in 1941 is still under copyright is completely insane.

If the Founding Fathers had their way, almost all works from the 20th century would be public domain by now (14-year copyright term, renewable once if you took extra actions).

Some corporations saw adding works to the public domain to be a problem, and when Sonny Bono got elected to the House of Representatives, representing part of Los Angeles, he helped push through a law extending copyright’s duration another 20 years to keep things locked-up back to 1923.  This has been called the Mickey Mouse Protection Act due to one of the motivators behind the law, but it was also a result of Europe extending copyright terms an additional twenty years first. If not for this law, works from 1923 and beyond would have been in the public domain decades ago.

Still, the law is the law... and, part of it includes Section 108(h). The Archive has, amusingly, named the collection the Sonny Bono Memorial Collection:

Today we announce the “Sonny Bono Memorial Collection” containing the first books to be liberated. Anyone can download, read, and enjoy these works that have been long out of print. We will add another 10,000 books and other works in the near future. “Working with the Internet Archive has allowed us to do the work to make this part of the law usable,” reflected Professor Townsend Gard. “Hopefully, this will be the first of many “Last Twenty” Collections around the country.”

Of course, there's more to this as well -- part of the goal is to encourage other libraries and archives to do the same.

For many years we've pointed to the research of Paul Heald, who has demonstrated the massive hole in access to important cultural works due to copyright. Specifically, he's found while public domain books have a big market, publishers who hold copyright only keep very recent books on the market. And that creates a massive culture gap in our history:

Perhaps the Sonny Bono Memorial Collection will help fill in just a small bit on the left hand side of that tragic cultural gorge.

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Posted on Techdirt - 12 October 2017 @ 10:43am

Australian Government Claims That Facial Recognition Systems Increase Privacy...

from the even-orwell-would-have-said-this-goes-too-far dept

Via Josh Taylor, we learn of the recently released "Intergovernmental Agreement on Identity Matching Services", which is a fancy way of saying that the federal government and Australian state and territory governments had agreed to work together on a big face recognition surveillance system. But the truly incredible thing is that these Australian governments have decided to try to out-Orwell Orwell, by arguing that pervasive facial recognition is actually... good for privacy.

The Identity Matching Services will help promote privacy by strengthening the integrity and security of Australia’s identity infrastructure—the identity management systems of government Agencies that issue Australia’s core identity documents such as driver licences and passports. These systems play an important role in preventing identity crime. Identity crime is one of the most common and costly crimes in Australia and is a key enabler of serious and organised crime. Identity crime is also a threat to privacy when it involves the theft or assumption of the identity of an individual. The misuse of personal information for criminal purposes causes substantial harm to the economy and individuals each year.

That's... an impressive level of bullshit. As Steven Clark points out... that's not privacy.

We often see people make the silly claim that security and privacy are at odds with one another, which we believe is generally not true. In fact, there are strong arguments that greater privacy increases security by better protecting everyone (go encryption!). But here, Australia appears to be trying to flip that rationale totally on its head by arguing that the more security you have, the better it is for privacy, because they'll catch those nasty criminals who aim to do harm to your privacy. But... that's not privacy. Indeed, it says nothing of how governments, for example, might violate everyone's privacy with such a system (which is a larger concern than your everyday criminal).

It's difficult to take such a system seriously, when this is how they approach the privacy question.

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Posted on Techdirt - 11 October 2017 @ 3:39pm

Supreme Court Leaves Troubling CFAA Rulings In Place: Sharing Passwords Can Be Criminal Hacking

from the congress-fix-this-shit dept

For many, many years now, we've talked about problems with the CFAA -- the Computer Fraud & Abuse Act -- which was passed in Congress in the 1980s in response to the Hollywood movie War Games (seriously). It was a messed up moral panic back then, and over the years it's been abused widely in both civil and criminal cases to define almost anything as hacking. Over the past few years we've been following two cases in particular related to the CFAA: the David Nosal case and the Power.com case. Both involved fairly twisted interpretations of the CFAA -- and, unfortunately, the 9th Circuit found both to be okay. And, unfortunately, this week, the Supreme Court declined to review both cases, meaning they remain good (if stupid) law in the 9th Circuit (which will likely influence cases elsewhere).

I won't go into all of the background in both cases, but the super short version is that under the Facebook v. Power ruling, it's a CFAA violation for a service to access a website -- even if at the request of users -- if the website has sent a cease-and-desist. That shouldn't be seen as hacking, but the court said it's "unauthorized access." Power was a service that tried to help consolidate different social networks into a single user interface for users -- and lots of people found that valuable and signed up for the service. But, Facebook didn't like it and sent a cease-and-desist to Power. Power figured that since users were asking it to continue and they were the ones who had the accounts, it was okay to continue. The court, unfortunately, claimed that it was a CFAA violation -- the equivalent of "hacking" into a system (despite having legit credentials) just because of the cease-and-desist.

In the Nosal case, the court said that merely sharing your passwords can be a CFAA violation. In that case a guy looking to compete with his old firm had someone still there share a password so he could log in and get customer info. That may be unethical and problematic -- but should it be the equivalent of computer hacking? While the 9th Circuit had rejected an even broader interpretation of the CFAA that would say merely violating a terms of service became "unauthorized access" it said okay to the password sharing one.

There was some hope that the Supreme Court would hear these cases and explain that these rulings stretched the CFAA to dangerous degrees. Unfortunately, that's not the case.

And so we're back where we've been for a few decades now: talking about why Congress needs to reform the CFAA and fix these problems that leave the law wide open to abuse -- especially in an era where so many people use dozens of services, and sometimes do things like share passwords or ask others to log into sites for them. These should never be seen as "hacking" violations, but in the 9th Circuit, they are.

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Posted on Techdirt - 11 October 2017 @ 1:39pm

Twitter Temporarily Blocks Campaign Ad... Getting It Much More Attention

from the don't-let-twitter-be-the-content-police dept

We've argued repeatedly that it's a bad idea to demand that internet platforms like Twitter and Facebook be more proactive in policing content on their services, because it will lead to really bad results -- especially in the political realm. There's been a really dumb move over the past few months, demanding that Twitter kick Donald Trump off Twitter, pointing out that he's pretty clearly violating many of their terms of service. For example, threatening war with North Korea would likely violate the rules against "violent threats (direct or indirect)." And, of course, our President is a walking, tweeting harassment and "hateful conduct" machine. But, Twitter has recently said that it wouldn't kick Trump off the service (which we agree is the right move), because it has a different standard for "newsworthy" tweets, whatever that means.

And, yes, some people will claim that it's unfair to have a double standard, but I think Twitter is correct to not kick Trump off the service. It certainly wouldn't stop the President from getting his thoughts out there, and would only increase the silly martyr act that he and his most vocal supporters love to focus on. But, really, the bigger issue is why anyone should expect Twitter to be doing this kind of decision making in the first place. When you look at other communications systems -- like email or the web in general -- we don't kick people entirely off email or force them to takedown their website just because they say something stupid.

And, when it gets into political content, it gets even sillier. For example, while Twitter won't do anything about Trump (again, the right move...), it did decide to block a campaign ad from Rep. Marsha Blackburn, who is eagerly running for the Senate to take over the seat Bob Corker is vacating. (Update: as noted in the comment, Twitter allowed the video in Blackburn's stream -- or in anyone else's -- they just blocked it from being promoted through Twitter's ad network). The ad sounded inflammatory and stupid, claiming that she "stopped the sale of baby body parts" and Twitter rejected it for being "inflammatory." Of course, all this did was kick the old Streisand Effect into high gear, giving Blackburn tons of free publicity and extra views of her ad, which was posted on YouTube, without having to buy any advertising. Twitter basically gave her a much wider reach for free by rejecting the ad. And, of course, after all the damage was done, Twitter changed its mind.

Now, I tend to think that Blackburn is one of the worst members of Congress (she's terrible on basically every issue we care about here) and would prefer she not move across Congress to be in the Senate, but she should be able to post whatever stupid ad she wants on Twitter, and just let people on Twitter rip it to shreds, rather than being barred from posting such an ad.

It seems pretty straightforward, but we shouldn't want a private company -- especially one as consistently confused about these things as Twitter -- to be the final arbiter of what political ads or political speech are okay, and what is too "inflammatory." That only leads to bad results -- and all of the free publicity Twitter just gave Blackburn's dumb ad will mean that other politicians will seek to create even more ridiculous ads to get the free "bump" from a Twitter ban. That hardly seems healthy for democracy.

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Posted on Techdirt - 11 October 2017 @ 10:44am

Miami Beach Police Unaware Of The First Amendment, Arrest Guy For Twitter Parody Account

from the do-they-not-have-the-1st-amendment-there? dept

Back in 2014, the police in Peoria, Illinois raided the home of a guy, Jon Daniel, suspected of running a Twitter account parodying Peoria's mayor, Jim Ardis. Despite knowing no laws had been broken, Ardis pushed hard to prosecute the person for daring to mock him on Twitter. It didn't end well. A year and a half later, the taxpayers of Peoria were on the hook to pay Daniel $125,000 to settle the lawsuit filed against the city (with help from the ACLU).

Someone might want to share that story with the police in Miami Beach. Last week they arrested a guy for having a Twitter parody account of the police spokesperson, Ernesto Rodriguez. The story sounds fairly familiar to the Peoria story. As in that case, police are claiming that the "crime" committed by Ernesto Orsetti here is "falsely impersonating" a public official. Yet, as the Miami New Times notes, just a little while ago Rodriguez (the real one) joked with reporters and made it clear he considered it a parody account. He also appears to have made some tweets that are clearly laughing off the parody account.


It seems like the approach that the real Rodriguez took to this, laughing it off, makes a lot more sense than going and arresting the guy -- especially given what happened in Peoria.

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Posted on Techdirt - 10 October 2017 @ 10:43am

Harvey Weinstein Tries Every Possible Response To Explosive NY Times Story

from the wanna-try-that-again,-harvey dept

Last week, the Hollywood Reporter broke the story that famed Hollywood movie mogul Harvey Weinstein (formerly of Miramax and more recently of the Weinstein Company -- from which he was fired over the weekend, despite practically begging for his friends to support him) had seriously lawyered up, hiring three high profile lawyers: David Boies, Lisa Bloom and Charles Harder to deal with two apparent stories that were in the works -- one from the NY Times and another from the New Yorker (two publications not known for backing down from threats) -- about some fairly horrible alleged behavior by Weinstein towards young female actresses, employees and more.

A day later, the NY Times published its article about Harvey Weinstein and, damn, it's quite an article. It details multiple cases of alleged sexual harassment by Weinstein against both employees and hopeful actresses -- and includes claims of Weinstein having to pay off some of those individuals. The article was not based on a single source, but many sources, including one actress (Ashley Judd) willing to put her name behind the accusations (and just as we were completing this post, the New Yorker published its piece which appears to be more detailed and more damning, with more names and even more horrifying stories about Weinstein). And with the NY Times' publication, much of the "legal team" leaped into action. Of course, if you're not familiar with the three lawyers named above, it may help to do a quick review, before we dig in on the myriad (often contradictory) responses we've now seen from Weinstein and his legal team over the past few days.

Boies, of course, shows up everywhere these days, but often not for good reasons. You may recall him representing SCO in its quixotic attack on Linux. Or representing Oracle against Google in claiming that APIs can be copyrightable. Or representing Theranos, the now disgraced biotech firm that exaggerated what it could do. Or representing Sony Pictures when its emails were all leaked, to the point of sending a ridiculous threat letter to us for daring to report on those emails. Lisa Bloom's only appearance here was when she was on the right side of the silly James Woods defamation case against an anonymous tweeter. Many found Bloom's appearance as part of the team quite odd, since she's built her reputation on representing victims of sexual harassment. She later claimed she was just advising Weinstein, rather than acting as his lawyer (hmm....) and then, over the weekend, she resigned from whatever it was that she was doing. However, the NY Times has a quite incredible article suggesting her initial response to the accusations was to effectively go after the women, by posting "photos of several of the accusers in very friendly poses with Harvey after his alleged misconduct." Ick.

And, Charles Harder? What is there that needs to be said about Charles Harder? Oh, right, that he's currently leading the legal team that's suing us in a defamation suit that we've won (though he has since appealed).

Within hours of the article being published, Harder announced that Weinstein would be suing the NY Times for defamation.

"The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein," he writes in an email to The Hollywood Reporter. "It relies on mostly hearsay accounts and a faulty report, apparently stolen from an employee personnel file, which has been debunked by nine different eyewitnesses. We sent the Times the facts and evidence, but they ignored it and rushed to publish. We are preparing the lawsuit now. All proceeds will be donated to women’s organizations."

But here's the thing: Weinstein himself seems to be admitting that many of the accusations are accurate. He's quoted apologizing for his behavior in the initial NY Times article:

In a statement to The Times on Thursday afternoon, Mr. Weinstein said: “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go.”

He added that he was working with therapists and planning to take a leave of absence to “deal with this issue head on.”

That seems like an admission. The full statement is even more bizarre:

I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then.

I have since learned it’s not an excuse, in the office - or out of it. To anyone. I realized some time ago that I needed to be a better person and my interactions with the people I work with have changed.

I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.

Though I’m trying to do better, I know I have a long way to go. That is my commitment. My journey now will be to learn about myself and conquer my demons. Over the last year I've asked Lisa Bloom to tutor me and she's put together a team of people. I've brought on therapists and I plan to take a leave of absence from my company and to deal with this issue head on. I so respect all women and regret what happened. I hope that my actions will speak louder than words and that one day we will all be able to earn their trust and sit down together with Lisa to learn more. Jay Z wrote in 4:44 "I'm not the man I thought I was and I better be that man for my children." The same is true for me. I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call. I cannot be more remorseful about the people I hurt and I plan to do right by all of them.

I am going to need a place to channel that anger so I've decided that I'm going to give the NRA my full attention. I hope Wayne LaPierre will enjoy his retirement party. I'm going to do it at the same place I had my Bar Mitzvah. I'm making a movie about our President, perhaps we can make it a joint retirement party. One year ago, I began organizing a $5 million foundation to give scholarships to women directors at USC. While this might seem coincidental, it has been in the works for a year. It will be named after my mom and I won't disappoint her.

That whole statement is... weird. Others have covered the many problems with it, but it seems like a pretty clear admission. Given that, it's pretty ridiculous to then claim you're suing the NY Times. Under what theory? Well, according to Weinstein, because it didn't give him enough time to respond:

“I mean every word of that apology,” he told TheWrap. “The reason I am suing the New York Times is they didn’t give me enough time to respond.”

Um. What? First of all, he gave an entire statement to the NY Times. So he clearly had time to respond. Second, there's no legal requirement that a news publication needs to give you "enough time to respond," let alone any time to respond. That's not how the press works.

In another interview, he told the NY Post that he's suing because the NY Times wasn't honest with him:

Weinstein said, “What I am saying is that I bear responsibility for my actions, but the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting. They told me lies. They made assumptions.

“The Times had a deal with us that they would tell us about the people they had on the record in the story, so we could respond appropriately, but they didn’t live up to the bargain.

“The Times editors were so fearful they were going to be scooped by New York Magazine and they would lose the story, that they went ahead and posted the story filled with reckless reporting, and without checking all they had with me and my team.

Once again, Weinstein seems to be confused about how journalism works -- and what legal requirements there are. Even as rich and powerful as Harvey Weinstein is, there is no legal requirement to give him as much time as he wants to respond. Indeed, his lawyer Bloom admits they had two days:

“Two days ago, after begging, they gave us a couple dozen allegations that spanned 30 years and a dozen countries. They said we have until 1 pm today. We said ‘Why?’ They never said.”

Again, giving two days actually seems kind of generous.

The whole thing seems like Weinstein is trying out any and all possible responses at once. Normally you select one: you deny and sue or you apologize or you try to make a quip and laugh off the accusation. Harvey seems to be doing all of this at once.

He even tried denial (and a quip) before the admission and the threat:

In a brief interview on Wednesday, Weinstein declined to comment on the charges.

"I've not been aware of this," he said. "I don't know what you're talking about, honestly."

[....]

Weinstein later issued a statement through a spokesperson, as did Bloom. “The story sounds so good I want to buy the movie rights,” said Weinstein.

Of course, as the NY Times has pointed out, at no point has Weinstein said what is factually untrue in its reporting. And if you're suing for defamation, that's kind of the first thing you're supposed to do. Meanwhile, it appears that other stories are starting to come out (and they keep coming) -- including some fairly damning claims about attempts to cover up previous investigations. And, perhaps most troubling, a claim that the NY Times had this story a dozen years ago and was pressured into killing it. Of course, perhaps that's the real reason behind the threat of the lawsuit -- to try to scare off others from coming forward. All of the links in this paragraph suggest if that's the theory, well, it's not working. It's also not clear that a lawsuit would be wise. Beyond the failure to give an actual legal reason for the lawsuit so far, as many people have pointed out, it's unclear that Harvey would want to go through the discovery process in such a lawsuit should it get that far.

And, in the meantime, the NY Times has said that Weinstein "should publicly waive the NDAs in the women's agreements so they can tell their stories." If he fails to do so, that says a lot right there.

Still, in the end, it appears that Weinstein's strategy here seems to be... to do all of the following, even if some parts contradict other parts:

  1. Deny with a quip ("I don't know what you're talking about, honestly." "I want to buy the movie rights.")
  2. Offer a weak excuse that's not even a real excuse ("I came of age in the 60's and 70's")
  3. Apologize ("the way I’ve behaved with colleagues in the past has caused a lot of pain," "I cannot be more remorseful about the people I hurt and I plan to do right by all of them.")
  4. Threaten to sue ("the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting")
  5. Claim the story is not accurate ("a story that is saturated with false and defamatory statements about Harvey Weinstein")
  6. Say the real problem was that the paper didn't live up to its word ("The Times had a deal with us")
  7. Also claim that the problem was not enough time to respond (despite responding) ("The reason I am suing the New York Times is they didn’t give me enough time to respond.")
  8. Deflect from being accused of using your power to bed powerless women by... talking about the NRA?!? ("I'm going to give the NRA my full attention.")
  9. Insist that you've seen the light and are changing ("I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call.")
  10. Talk about how you've thrown money at womens' issues, as if that makes this okay ("I began organizing a $5 million foundation to give scholarships to women directors at USC.")
None of these seem particularly genuine at all -- which perhaps explains the contradictory nature of many of them. Instead, it looks an awful lot like how people who are caught doing something bad act when they can't come to terms with what they've done, and will thrash about wildly, trying on every possible response, hoping one of them gets them out of the situation. Who knows if an actual lawsuit will be filed, but of all the possible responses above, that one seems the least likely to end well.

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Posted on Free Speech - 10 October 2017 @ 9:32am

Lindsay Lohan's Parents Want Her To Sue A Senator Who Made Fun Of Lindsay

from the that's-not-how-any-of-this-works dept

Over the past few years we've written about some really dumb lawsuits (or threats of lawsuits) filed by actress Lindsay Lohan. There was that time she sued E*Trade for $100 million because it had a baby in its commercial, named Lindsey, who was described as a "boyfriend-stealing milkaholic," which she insisted must be a reference to her (think about that one for a second...). Or there was the time she claimed that a jewelry store releasing surveillance tape footage of her stealing a necklace violated her publicity rights. Then she sued the rapper Pitbull for a lyric "I got it locked up like Lindsay Lohan" (and, bizarrely, that one included accusations of a plagiarized filing by her lawyer. And, of course, most famously, Lohan spent years battling Take Two Interactive, claiming a ditzy starlet character in Grand Theft Auto was also a violation of her publicity rights.

Apparently she comes by this apparent proclivity to threaten and/or file nutty lawsuits honestly. Because her parents were reported as threatening to sue a US Senator for making a reference during a hearing to Linsday Lohan. They later "clarified" that they would not be the plaintiffs, but that they're encouraging Lindsay to sue. Here's the original report, though:

Michael and Dina Lohan are planning to sue Sen. John Kennedy (R-Louisiana) over the “slanderous comments” that he made about their daughter, actress Lindsay Lohan, on Wednesday during a congressional hearing on the Equifax data breach.

The comments occurred as Richard Smith, the former CEO of Equifax, the credit reporting company that was hacked last month, was being questioned about signing a $7.25 million IRS contract for identity verification services. The deal could reap profits for the company as a result of the hack.

“Why in the world should you get a no-bid contract right now?” Sen. Ben Sasse (R-Nebraska) asked Smith. Kennedy added, “You realize to many Americans right now, that looks like we’re giving Lindsay Lohan the keys to the minibar.” Smith paused for a moment before responding, “I understand your point.” The “Mean Girls” star, originally of Cold Spring Harbor and Merrick, has spoken about her past struggles with drugs and alcohol.

So, uh, let us count the many, many, many ways in which this is not "slanderous." (And we originally had the fact that Lohan's parents had no standing to sue, but have removed that since they've clarified they just want her to sue).

  1. It was a figure of speech, not a false statement of fact about Lohan.
  2. Even if there were a false statement of fact (there wasn't) there's no way that such a statement meets the "actual malice" claim -- meaning that it was done with knowing falsity or with reckless disregard for the truth.
  3. Under the Westfall Act, everyone in Congress is effectively immune from defamation lawsuits for things they say as part of their job -- especially when said on the floor or in a committee hearing.
  4. And, again, for emphasis, Senator Kennedy didn't say anything defamatory about Lohan.
Who knows if she'll actually go ahead and sue, but Michael Lohan insists that he's trying to find a lawyer to handle this, and told the site "Gossip Cop" (linked above) that merely associating Linsday's name with Equifax is what he found to be slanderous.

“Dina and I are seeking legal counsel for Lindsay regarding the slanderous comments and unprofessional behavior of Senator John Kennedy (R-La.),” he says. “His comment and analogy was inappropriate, slanderous and unwarranted. How dare he associate Lindsay with this case? Tell me, does he have a family member or friend with a former addiction problem? Wow, and he’s a senator?”

Hopefully, whatever lawyer he finds explains to him that this is not at all how defamation works. In his updated statement to Gossip Cop, he confuses matters even more:

“While Dina and I realize we can’t sue Senator Kennedy for his bullying statements, Lindsay can. I advised her to seek counsel through a friend who is a well-known federal attorney in New Orleans.” He adds, “This has got to stop. Lindsay has turned her life around and does wonderful humanitarian work.”

Again, even assuming that it's true that Linsday has "turned her life around" (good for her), that has nothing to do with whether or not she can sue over the Senator's statement. Unfortunately, it appears that Lindsay may actually be listening to her parents on this one. She tweeted the following:

It's a picture of her holding up a water bottle, and saying: "This is the only thing I keep in my mini bar these days - glad I found lawyer.com they are helping me out." It also includes a winking emoji and a blowing a kiss emoji -- which, we hope, means she's making fun of the situation, rather than following through with an actual lawyer.

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Posted on Techdirt - 6 October 2017 @ 2:19pm

The Latest On Shiva Ayyadurai's Failed Libel Suit Against Techdirt

from the round-two dept

We have a quick update today on the defamation lawsuit that Shiva Ayyadurai filed against us earlier this year. Last month, Judge Dennis Saylor dismissed the lawsuit, pointing out that everything we said concerning Ayyadurai's claim to have invented email (specifically us presenting lots and lots of evidence of email predating Shiva's own work) was clearly protected speech under the First Amendment. Unfortunately, despite us being a California corporation, Judge Saylor did not grant our separate motion to strike under California's anti-SLAPP law -- which would have required Ayyadurai to pay our legal fees.

Two weeks ago, Ayyadurai notified the court that he was appealing the dismissal, which we will defend against in court, and we are confident that we will prevail once again. On top of that, today, we've notified the court that we are cross-appealing the decision to reject our motions to strike under California's anti-SLAPP law. We have argued in court that this is an obvious SLAPP lawsuit -- an attempt by the plaintiff, a self-proclaimed public figure, to try to silence detailed, evidence-based criticism of his claims. We believe that the court improperly applied choice of law principles on which state's anti-SLAPP law should apply, and we look forward to making our case before the 1st Circuit appeals court on why California's anti-SLAPP law is the proper law to apply. We'll provide more updates as the appeals progress.

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Posted on Techdirt - 5 October 2017 @ 1:43pm

Members Of Congress: Court Was Wrong To Say That Posting The Law Is Copyright Infringement

from the time-to-clarify-the-law dept

Back in February, we wrote about a disturbing court decision that said that standards that are "incorporated by reference" into law, could still be copyright infringing if posted to the internet. In that earlier post I go into much more background, but the short version is this: lots of laws point to standards put together by private standards bodies, and say, effectively, "to be legal, you must meet this standard." For example, fire codes may be required to meet certain standards put together by a private standards body. Carl Malamud has spent years trying to make the law more accessible, and he started posting such standards that are "incorporated by reference" into the law publicly. His reasoning: once the government incorporates the standard into the law, the standard must be publicly available. Otherwise, you have a ridiculous situation in which you can't even know what the law is that governs you unless you pay (often a lot) to access it.

Standards bodies weren't happy about this -- as some of them make a large chunk of money from selling access to the standards. But from a straight up "the law should be public" standpoint, the answer should be "too bad." Unfortunately, the district court didn't see it that way, and basically said it's okay to have parts of our laws blocked by copyright. We thought that ruling had some serious problems, and Malamud and his organization Public.Resource.Org appealed. A bunch of amicus briefs have been filed in the case -- which you can see at EFF's case page on the lawsuit. There's a good one from some law professors about how the lower court got it wrong, as well as a ton of library associations (and also other law professors and former gov't officials). Public Citizen also filed a good brief on the importance of having access to the law. It's worth reading them all.

However, I wanted to focus on a different amicus brief, filed by two sitting members of Congress, Reps. Zoe Lofgren and Darrell Issa. The brief was put together by Harvard's Cyberlaw Clinic, with help from lawyer Cathy Gellis (who has represented us from time to time, as well as written some posts for Techdirt). It's certainly not unheard of to have members of Congress file amicus briefs in cases, but it's not particularly common either. The fact that two members of Congress are worried about the due process implications of a court ruling should, hopefully, capture the court's attention.

For the law to govern and protect the people, the people must know what the law is. By offering an electronic platform for the publication of legal codes and standards, Public Resource helps the public by providing access to laws that might otherwise be functionally inaccessible. Without this access, the consequences are significant. First, those who inadvertently violate inaccessible regulations may be blindsided by civil and criminal penalties for violations they did not know to avoid. Second, those whose health and welfare depends on others’ compliance with these regulations may suffer damage to their life, liberty, and property, as a result of both others’ ignorance of the law and their own inability to access the law in order to pursue enforcement. This Court should not endorse a copyright regime that allows private SDOs to limit access to the legal rules that govern and protect the public.

Also:

As members of Congress, our job is to draft and enact laws that govern the United States. But mere passage of legislation is not enough; due process requires more. The Fifth and Fourteenth Amendments dictate that no person is to be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V; U.S. Const. amend. XIV. There can be no due process when people cannot remain informed of the laws by which they are bound. And they cannot remain informed when the law itself is not sufficiently communicated to the people it governs.

Lots of people could make those points -- but having it come from the people who actually make the laws seems to make the point that much more relevant. Hopefully the court agrees.

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Posted on Techdirt - 4 October 2017 @ 3:21pm

As Expected, EU Court Of Justice To Review If Internet Company's Privacy Practices Are Acceptible

from the here-we-go dept

The European Court of Justice is going to look into the acceptability of US internet company's privacy practices under the so-called "Privacy Shield" framework that was put in place last year. As you may recall, for years, the EU and the US had a "safe harbor" agreement, under which tech companies underwent a fairly silly and almost entirely pointless process (I know, because we did it ourselves...) by which the companies effectively promised to live up to the EU's data protection rules, in order to move data from servers in the EU across the Atlantic to the US. It is important that companies be allowed to do this, because without it, the internet doesn't function all that well. But, because of NSA snooping, it became clear that what companies were promising couldn't match what was actually happening. And thus, the EU Court of Justice tossed out the framework, saying that it violated EU data protection rules.

After a bit of a scramble, the EU and the US came to an agreement on another framework, called the "Privacy Shield" that both argued was acceptable. It required US companies to do better in handling Europeans' data, to make sure EU residents had redress over data protection and included some transparency requirements regarding US government access to the data. However, as we noted at the time, unless the US was drastically changing how the NSA did surveillance, it seemed nearly impossible for the Privacy Shield to be valid under EU law. And, indeed, Max Schrems, the guy whose lawsuit brought down the original "safe harbor" quickly challenged the Privacy Shield in an Irish court. Over the past few months, we've pointed out that some of Trump's statements on surveillance made it clear that the Privacy Shield was not likely to survive.

Earlier this week, the Irish court asked the European Court of Justice to review. The ruling is long (over 150 pages) and pretty detailed. The court clearly recognizes how important this issue is:

The case raises issues of very major, indeed fundamental, concern to millions of people within the European Union and beyond. Firstly, it is relevant to the data protection rights of millions of residents of the European Union. Secondly, it has implications for billions of euros worth of trade between the EU and the US and, potentially, the EU and other non-EU countries. It also has potentially extremely significant implications for the safety and security of residents within the European Union. There is considerable interest in the outcome of these proceedings by any parties having a very real interest in the issues at stake.

The court hasn't yet officially asked the CJEU to weigh in, but rather has said that it will -- but first it wants the parties involved in the case to more or less argue about what exactly should be the questions submitted to the CJEU.

Most of the ruling itself is basically around whether or not there's anything to discuss here at all. Facebook -- the service whose privacy practices are at issue in this particular case -- tried to argue that because surveillance issues are "national security" and there's a carve out for national security, there's no issue with the Privacy Shield But the court doesn't buy that. First, it says that the issue under scrutiny is about the relationship between the EU and its member states (and how the data protection rules work) rather than a question about "national security" in the US. Similarly, it points to the original Schrems ruling that got the old safe harbor tossed out and notes that no one had a problem with saying the law applied in that case:

The submission is inconsistent with the ruling of the High Court in Schrems v. The Data Protection Commissioner [2014] 3 I.R. 75 and the CJEU in Schrems where the court proceeded on the basis that it had jurisdiction to rule on the reference. If Facebook’s submission in this case is correct, it did not have jurisdiction so to proceed. Eight Member States, the European Parliament, the European Commission and the European Data Protection Supervisor intervened in those proceedings. If Facebook’s point was well made, it is remarkable that none of these participants raised this fundamental matter of jurisdiction.

So, there's still time before the CJEU will sort this out, but we stand by our initial statement. Unless the US changes its NSA surveillance practices, it's difficult to see how the Privacy Shield comes to an end any different than the old privacy safe harbors. If the US doesn't want to have the Privacy Shield rejected again, it might want to start by reforming surveillance -- and it can do that right away in refusing to renew Section 702 of the FISA Amendments Act without significant reform and modifications.

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Posted on Techdirt - 4 October 2017 @ 11:55am

Shouldn't Federal Judges Understand That Congress Did Not Pass SOPA?

from the hello-prior-restraint dept

We've discussed in the past the completely ridiculous attacks on Sci-Hub, a site that should be celebrated as an incredible repository of all the world's academic knowledge. It's an incredible and astounding achievement... and, instead of celebrating it, we have big publishers attacking it. Because copyright. And even though the purpose of copyright was supposedly to advance "learning" and Sci-Hub serves that purpose amazingly well, so many people have bought into the myth of copyrights must "exclude" usage, that we're in a time where one of the most amazing libraries in the world is being attacked. Sci-Hub lost its big case earlier this year, and almost immediately others piled on. Specifically, back in June, the American Chemical Society (ACS) jumped in with a similar "us too!" lawsuit, knowing full well that Sci-Hub would likely ignore it.

ACS has moved for a default judgment against Sci-Hub (what you tend to get when the defendant ignores the lawsuit), which it would likely get. However, in an extremely troubling move, the magistrate judge reviewing the case for the Article III judge who will make the final ruling has recommended forcing ISPs and search engines to block access to Sci-Hub. After recommending the standard (and expected) injunction against Sci-Hub, the recommendation then says:

In addition, the undersigned recommends that it be ordered that any person or entity in privity with Sci-Hub and with notice of the injunction, including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Sci-Hub engages in unlawful access to, use, reproduction, and distribution of ACS's trademarks or copyrighted works. Finally, the undersigned recommends that it be ordered that the domain name registries and/or registrars for Sci-Hub's domain names and websites, or their technical administrators, shall place the domain names on registryHold/serverHold or such other status to render the names/sites non-resolving.

So, this is kind of incredible. Because, as you might remember, there was a big fight a little over five years ago about a pair of bills in Congress called SOPA and PIPA that proposed allowing for such an order being issued to third parties like search engines, ISPs, domain registrars and the like, demanding they block all access to certain websites. And, following quite a public outcry (which also explained why this approach would do serious harm to certain security standards and other technical aspects of how the internet works), Congress backed down and decided it did not want to enable courts to issue such orders.

So why the hell is Magistrate Judge John F. Anderson recommending such an order?

At the very least, it seems problematic. Even if you ignore the Sci-Hub part of the equation (since it ignored the lawsuit, a default judgment was basically inevitable), you should be concerned about this. Here's a court order binding a very large number of non-parties to the lawsuit to completely block access to a variety of websites, without any sort of due process. One hopes that ISPs, domain registrars and search engines will push back on such an overbroad order -- one that even Congress realized was a step too far and never authorized.

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Posted on Techdirt - 3 October 2017 @ 9:20am

Oracle Tells The White House: Stop Hiring Silicon Valley People & Ditch Open Source

from the well,-that's-one-way-to-think-about-things... dept

Even though Oracle is based in the heart of Silicon Valley (I can see its offices from my own office window as I type this), the company has become sort of anti-Silicon Valley. It tends to represent the opposite of nearly everything that is accepted wisdom around here. And its latest crusade is against open source technology being used by the federal government -- and against the government hiring people out of Silicon Valley to help create more modern systems. Instead, Oracle would apparently prefer the government just give it lots of money.

First, some background: over the past few years, one of the most positive things involving the federal government and technology has been the success of two similar (but also very different) organizations in the US government: US Digital Service (USDS) and 18F. If you're completely unfamiliar with them there are plenty of articles describing both projects, but this one is a good overview. But the really short version is that both projects were an attempt to convince internet savvy engineers to help out in the federal government, and to bring a better understanding of modern technology into government. And it's been a huge success in a variety of ways -- such as creating federal government websites that are modern, secure and actually work. And even though both programs are associated with President Obama, the Trump administration has been adamant that it supports both organizations as well, and they're important to continuing to modernize the federal government. The offices are not politicized, and they have been some of the best proof we've got that government done right involves smart, dedicated technologists.

Of course, not everyone is thrilled with these organizations. Old school federal contractors, for one, have been grumbling loudly about 18F daring to do things like making government procurement open to small businesses. After all, these contractors have spent decades charging the government billions for crappy products, in part, because they know how to work the system. Bringing in actual engineers who realize that it's crazy to spend so much money on crappy solutions -- especially when there are much better solutions that are often open, seems to really piss off some folks who grew fat and happy overcharging the government. And they've found some front groups who argue that these programs are a waste of government money, which would be better spent giving billions to private contractors.

Either way, the Trump Administration, following a Trump executive order, requested feedback on how best to modernize government IT. The request for comments and all the submitted comments are on Github (which is nice to see). Many are quite interesting, but the one that really caught my eye, was Oracle's submission, which I can only describe as... curmudgeonly.

A little more background: if it weren't for Oracle's failures, there might not even be a USDS. USDS really grew out of the emergency hiring of some top notch internet engineers in response to the Healthcare.gov rollout debacle. And if you don't recall, a big part of that debacle was blamed on Oracle's technology. So, perhaps it's not surprising that Oracle might hold a bit of a grudge against USDS. Similarly, while Oracle likes to claim that it's supportive of open source technologies, most recognize that open source has been eating Oracle's lunch for a while now.

Even with all that background, the sheer contempt found in Oracle's submission on IT modernization is pretty stunning. The letter complains about three "false narratives" that "have taken the [US government] off track":

False Narrative: Government should attempt to emulate the fast-paced innovation of Silicon Valley. Silicon Valley is comprised of IT vendors most of which fail. The USG is not a technology vendor nor is it a start-up. Under no circumstance should the USG attempt to become a technology vendor. The USG can never develop, support or secure products economically or at scale. Government developed products are not subject to the extensive testing in the commercial market. Instead, the Government should attempt to emulate the best-practices of large private-sector Fortune 50 customers, which have competed, evaluated, procured and secured commercial technology successfully.

Now, this is kind of funny if you follow anything having to do with government and IT projects over the past few decades, as compared to what's happened on projects where USDS and 18F have been involved. For example, remember the big new $600 million (only $220 million over budget) computer system the FBI paid for that was useless for catching terrorists and had to be completely written off? This was the system, built by giant government contractor SAIC, that a computer science professor who was asked to review the system said he was planning to go on a crime spree the day the system launched, knowing the FBI wouldn't be functional. The same system that was so bad that a contractor who was trying to do something so simple as add a printer to the network had to hack the system, accessing the usernames and passwords of 38,000 FBI employees (including then director Robert Mueller) just to do his job.

Is that really the kind of world we want to go back to? And that's just one example, but there are many others like this. Yet, whenever you look at the systems that USDS and 18F are working on, they seem to actually work. They also seem secure. So, sure, it's easy to attack having the government put together these systems, but real world experience seems to show that these groups, staffed with experienced internet engineers does things a lot better.

False Narrative: In-house government IT development know-how is critical for IT modernization. In-house government procurement and program management expertise is central to successful modernization efforts. Significant IT development expertise is not. Substantial custom software development efforts were the norm at large commercial enterprises, until it became obvious that the cost and complexity of developing technology was prohibitive, with the end-products inherently insecure and too costly to maintain long-term. The most important skill set of CIO’s today is to critically compete and evaluate commercial alternatives to capture the benefits of innovation conducted at scale, and then to manage the implementation of those technologies efficiently. Then, as evidenced by both OPM and Equifax, there needs to be a singular focus on updating, patching, and securing these systems over time.

There's at least some truth to the idea that developing things from scratch is not ideal in many cases, but claiming that those making decisions on federal IT shouldn't have development knowledge is ludicrous. When you don't have that kind of knowledge, that's when you get the big federal contractors coming in and selling you $600 million FBI computer systems that are useless at catching terrorists. I'd be curious if any software developers out there actually think they get better requirements docs from those with dev experience, or those without? Because over and over and over again, I've seen that when the management side actually understands software development, then the process tends to go much more smoothly, because people are much more realistic. Having non-technically inclined managers making these decisions tends to go poorly. Remember the massive computer system that the Copyright Office wasted millions on? That involved a failure of the Copyright Office to set requirements with the outside vendor who never could actually build a working system.

False Narrative: The mandate to use open source technology is required because technology developed at taxpayer expense must be available to the taxpayer. Here there is an inexplicable conflation between “open data,” which has a long legacy in the USG and stems from decades old principles that the USG should not hold copyrights, and “open source” technology preferences, which have been long debated and rejected. There is no such principle that technology developed or procured by the USG should be available free for all citizens, in fact that would present a significant dis-incentive to conducting business with the USG.

This is the most ridiculous of all. Copyright law is pretty clear on this: works of the US government shouldn't be subject to copyright -- and many in the government have embraced variations on open source to live up to that requirement. The idea that open source somehow creates disincentive to working with the US government is hilarious. Maybe for a company like Oracle, but tons of others are happy to work with the US government and lots of open source technologies have made government IT faster, cheaper and more secure.

But Oracle really wants to dig in on this point, with some complete bullshit about how open source is somehow less secure... because the Equifax hack came via a vulnerability in open source:

Developing custom software and then releasing that code under an open source license puts the government at unnecessary security risk as that code is not “maintained by a community,” but is rather assessed and exploited by adversaries. Further, this practice puts the government – most likely in violation of the law – in direct competition with U.S. technology companies, who are now forced to compete against the unlimited resources of the U.S. taxpayer. The Equifax breach stemmed from an exploit in the open source Apache Struts framework.

The Equifax breach stemmed from Equifax failing to patch a widely discussed bug that competent administrators should have patched. The bug was found and patched because it was open source.

Speaking of "false narratives," Oracle also claims that open source technology is being used less and less in the corporate world:

Open source software has many appropriate uses and should be competed against proprietary software for the best fit and functionality for any given workload, but the fact is that the use of open source software has been declining rapidly in the private sector. There is no math that can justify open source from a cost perspective as the cost of support plus the opportunity cost of forgoing features, functions, automation and security overwhelm any presumed cost savings. The actions of 18F and USDS plainly promote open source solutions and then propagate those mandates across government with the implicit endorsement of the White House. The USG’s enthusiasm for open source software is wholly inconsistent with the use of OSS in the private sector.

If you actually follow the open source software market, Oracle's claim here is laughable. Open source is now commonplace in the enterprise and that's only increasing, not decreasing.

Also, somewhat hilariously, Oracle tries to argue that letting USDS and 18F develop things means that there will be extra costs, compared to letting private companies develop stuff:

The largest contributor to cost and complexity is customization, yet actions of the USG and the Report seem to embrace both government developed bespoke technology and customization. Custom code needs to be maintained, patched, upgraded and secured over the long-term. The cost of technology comes almost entirely from labor, not from component parts, whether software, hardware, or networking. The goal should be to seek leverage and scale by engineering out labor costs, including process engineering. Government developed technology solutions must be maintained by the government. Every line of code written by 18F, USDS or another government agency creates a support tail that results in long term unbudgeted costs.

But, again, looking at historical IT implementations pre-USDS and 18F and you see example after example of it being the outsourced, private, large government contractor companies whose work results in massive unplanned maintenance costs.

Seriously, this entire filing by Oracle is one giant false narrative of people living in denial about how the world works these days.

There's even more nuttiness in the filing, but you can go through it yourself and count how frequently you gasp at just how wrong it is. This is an old, legacy company trying to cling desperately to old, obsolete, legacy ways. Oracle's entire business was originally created to serve the US government as a customer, and it clearly doesn't want to give that up. But, once again, things like this just make it clear why the top engineers coming out of school today don't have much interest in going to work for a company with views like Oracle's.

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Posted on Techdirt - 3 October 2017 @ 3:21am

Supreme Court Won't Review US Government Getting To Steal All Of Kim Dotcom's Stuff

from the that's-unfortunate dept

While the "main event" in the never-ending case of the US Justice Department against Kim Dotcom continues to grind its way ever so slowly through the wheels of justice, one element has basically concluded. And this was the part that should concern you even if you think that Kim Dotcom was completely guilty of criminal copyright infringement. The issue here is that as part of the arrest of Dotcom and his colleagues, the US "seized" many of his assets. Now, when the government seizes assets, it's a temporary thing. They have a certain period of time to hold onto it. Afterwards, they either need to give those assets back or file a separate case to attempt to "forfeit" those items (i.e., keep them forever). Here's where things get a little bizarre. Because Dotcom was fighting extradition in New Zealand, the "deadline" for the US to continue holding the seized assets was approaching -- so they filed the separate case against his stuff. Because it's a civil asset forfeiture case, the case is literally against his stuff, and not against Kim Dotcom (and, yes, this is as weird and nonsensical as it sounds). But there was a twist: because Dotcom was still in New Zealand, the Justice Department said that he was a "fugitive" and thus couldn't even protest the forfeiture of his stuff. Unfortunately, both the district court and the appeals court agreed.

Again, let's be totally clear here -- because sometimes people get so focused on their belief that because Megaupload enabled copyright infringement that this is somehow okay. But here we have a situation where before anyone has been found guilty of anything, the US government was given permission to take and keep all of Kim Dotcom's stuff. This should concern you even if you think Dotcom deserves to rot in prison, because there's a clear absence of due process here. If Dotcom is eventually found to be not guilty -- that won't have any impact on this. The US government still gets to keep his stuff (or, well, whatever it can get its hands on).

So the issue here is not whether or not Kim Dotcom is guilty of copyright infringement. It's whether or not the US government can just take his stuff before that other process has played out. That's a problem.

And, unfortunately, it's a problem that the Supreme Court will not be reviewing at this time. Even as some of the Justices have expressed concerns about civil asset forfeiture, apparently they didn't want to take on this particular case. And, maybe that's okay, because maybe, as with many people, they wouldn't have been able to separate out the copyright question from the civil asset forfeiture question from the fugitive disentitlement question -- all of which are separate but important.

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