Posted on Techdirt - 24 June 2016 @ 3:41pm
Want some unsurprising news? Apparently a three year gag order has just lapsed, allowing Ladar Levison, the founder and former operator of Lavabit, the secure email service Ed Snowden famously used, to finally say that yes, the feds asked him to turn over his encryption key in order to access Ed Snowden's emails.
Lavabit founder Ladar Levison can finally confirm that Edward Snowden was the target of the 2013 investigation, which led to the shutdown of the Lavabit email service. The original case concerned law enforcement’s authority to compel the disclosure of an SSL/TLS private key, which belonged to Lavabit, and was used to protect the communications of all 410,000 customers, when only one of those customers was the subject of a criminal investigation. After three years, and five separate attempts, the federal judge overseeing the case has granted Mr. Levison permission to speak freely about investigation. The recently delivered court decision unseals the vast majority of the court filings, and releases Mr. Levison from the gag order, which has limited his ability to discuss the proceedings until now.
Mr. Levison has consistently relied on the First Amendment in his court filings, which sought to remove the gag orders entered against him. He argued that such orders are an unconstitutional restraint against speech, and an afront to the democratic process. He plans to use his newfound freedom to discuss the case during a planned presentation on Compelled Decryption at DEF CON 24 in Las Vegas, NV.
Of course, the fact that the feds were after Snowden isn't exactly news. First off, it's what everyone assumed
the second the site shut itself down. But, more importantly, earlier this year, a redaction failure
revealed it directly:
Still, it's good that the gag order has finally been lifted, and it's great that Levison is now going to talk about these issues more widely. He also notes plans to create a legal defense foundation to help with similar cases:
In order to continue the fight, Mr. Levison is forming the Lavabit Legal Defense Foundation (or “LavaLegal”), a non-profit organization founded to, among other things, protect service providers from becoming complicit in unconstitutional activities, and fight secret attempts aimed circumventing digital privacy or impinging upon the right of those involved to speak of the experience. The foundation will be funded by donations from people and organizations all over the world that want to help protect digital privacy and bolster our collective defense against government overreach.
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Posted on Techdirt - 24 June 2016 @ 2:08pm
Remember this image?
That's the meme that was (and still is) passed around on social media (rather gently) mocking Turkish President Recep Tayyip Erdogan
for looking kinda like Gollum from the Lord of the Rings
trilogy. Or, not even Gollum, but his nicer alter ego, Smeagol. Last we wrote about this, a Turkish court was assembling an expert panel to determine if that image is insulting
to Erdogan. Since then, of course, we've learned just how insanely thin-skinned Erdogan is, having filed an average of over 100 actions
against people for insulting him per month (how does he get any actual work done?).
The Gollum case, however, is partially done, with one person accused of passing around the meme, Rifat Cetin, given a 1 year jail sentence
, but having it suspended for five years -- meaning if he breaks no other laws in the next five years, he won't have to go to jail. He does
, however, lose custody of his kids, which seems pretty damn harsh for sending around a simple (and not very insulting) internet meme. And this is actually a different case
than the one we discussed earlier -- it's just that there were multiple lawsuits over the same image.
Cetin is going to appeal, not on the basis of "WTF, I don't even..." which should be the standard here, but on the technicality that Erdogan was actually Prime Minister at the time the image was posted, rather than President -- and the law is only against insulting the President.
Either way, all this has done, of course, is get more people to post and share that image over and over and over again. You'd think that "growing a thicker skin" might be a better overall strategy. But, then again, I'm not the President of Turkey, so what do I know?
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Posted on Techdirt - 24 June 2016 @ 12:45pm
See the update at the end
Almost two years ago, we excitedly wrote about the announcement behind Let's Encrypt, a free certificate authority that was focused on dramatically lowering the hurdles towards protecting much more of the internet with HTTPS encrypted connections. It took a while to launch, but it finally did and people have been gobbling up those certificates at a rapid rate and getting more and more of the web encrypted. This is a good thing.
Unfortunately, it appears the old guard of certificate authorities doesn't like this very much. Comodo, which has provided certificates for quite some time (and, in fact, is where Techdirt's certificate comes from) has apparently, somewhat ridiculously, been trying to trademark versions of "Let's Encrypt." The most troubling one is the one on purely "Let's Encrypt," but the other two (Comodo Let's Encrypt and Let's Encrypt with Comodo) are equally problematic -- especially since (as Comodo admits directly) it's never used that phrase in offering its existing certificates.
This seems like a clear situation where Comodo is seeking to confuse the market -- and thus the clear case where trademark law actually makes some sense. As we've said basically forever, trademark is quite different than copyrights and patents, in that it was really designed as a consumer protection law, to keep consumers from being tricked into buying something that they believe is from a different entity. Trademarks are widely and frequently abused, but there are times where the original intent of consumer protection makes sense, and this seems like one of them. What's incredible is that when Let's Encrypt reached out to Comodo about this, the company refused to abandon the attempt to trademark these names.
Since March of 2016 we have repeatedly asked Comodo to abandon their “Let’s Encrypt” applications, directly and through our attorneys, but they have refused to do so. We are clearly the first and senior user of “Let’s Encrypt” in relation to Internet security, including SSL/TLS certificates – both in terms of length of use and in terms of the widespread public association of that brand with our organization.
If necessary, we will vigorously defend the Let’s Encrypt brand we’ve worked so hard to build. That said, our organization has limited resources and a protracted dispute with Comodo regarding its improper registration of our trademarks would significantly and unnecessarily distract both organizations from the core mission they should share: creating a more secure and privacy-respecting Web. We urge Comodo to do the right thing and abandon its “Let’s Encrypt” trademark applications so we can focus all of our energy on improving the Web.
At the very least, this kind of stupid stunt has me reconsidering if we should ever use Comodo's certificates on our site going forward. We've been a happy Comodo customer for many years, but I hate supporting bullies. Update
: And... of course, after this goes public, Comodo suddenly backs down
. Of course that doesn't explain why it refused to do so when asked months ago.
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Posted on Techdirt - 24 June 2016 @ 11:41am
Oh boy. A few weeks back, we wrote about the absolutely ridiculous story in which the four children of Frank Zappa appear to be fighting over the Zappa name. The story is somewhat complex and involved and is actually somewhat more nuanced than the unfortunately-all-too-typical "heirs of famous artist fight over splitting up the proceeds of that artist's legacy." In that original article, we noted that the dispute seemed to focus on two specific claims: first that the Zappa Family Trust (run by Ahmet and Diva, but to which all four children are beneficiaries) had a trademark on the tour name "Zappa Plays Zappa," under which Dweezil Zappa had toured for years. After some fairly public back and forth online, it became clear that there was an underlying dispute that had simmered for years here: Frank's wife Gail, who had controlled the ZFT, had trademarked Zappa Plays Zappa and charged Dweezil to use it, but had (according to Dweezil) then reneged on an agreement to share the proceeds from merchandise sales. Ahmet insisted that he'd allow Dweezil to continue to use the name for just $1, but it didn't seem that there was any interest in clearing up the older dispute about merch sales, or to allow Dweezil to get some of the proceeds from ongoing merch sales.
The trademark claim seemed... at least possible, though there were arguments for either side, including a fairly strong one that Dweezil had every right to use that name without needing to license it. But the really ridiculous claim was that the family trust could stop Dweezil from playing Frank Zappa's songs. The ZFT had a convoluted -- and simply wrong -- interpretation of copyright law, to argue that Section 115 of the Copyright Act doesn't apply to Frank Zappa's music, because it's part of a "dramatic work." This is basically a nonstarter and would almost certainly be laughed out of court if it ever got there. Such a theory would basically upend decades upon decades of rather settled law concerning the ability to perform cover songs.
But, now it appears that the Zappa Family Trust also has some ridiculously nutty trademark theories as well. That's because to avoid the trademark issue, Dweezil originally changed the tour name to "Dweezil Zappa Plays Frank Zappa." Not nearly as catchy, as everyone agrees, but functional. Apparently, Ahmet and the ZFT lawyers sent a laughably wrong cease and desist letter to Dweezil claiming that merely using the name Zappa was trademark infringement:
This week, a lawyer for the trust informed Dweezil’s lawyer that the name Dweezil Zappa Plays Frank Zappa infringed on the trust’s trademarks of the terms “Zappa” and “Frank Zappa.”
This is just wrong. In the response from Dweezil's lawyers, they pointed out that this was nominative fair use: "the use of 'Frank Zappa' merely serves to accurately describe the nature of the show and is in no way misleading or defamatory." Since no one's published the full letters -- just snippets -- I don't know why they mention defamation in there, but that's a whole different legal minefield.
Either way, to avoid having to deal with that threat, Dweezil has changed the name of the tour yet again
so that it's now: 50 Years of Frank: Dweezil Zappa Plays Whatever the F@%k He Wants – The Cease and Desist Tour. Really.
Dweezil also notes that "Yes there will be CEASE AND DESIST 2016 tour shirts" on the tour (along with additional merchandise unrelated to the Zappa Family Trust). I will say that as a legal nerd, I really, really want a Dweezil Zappa t-shirt that says "cease and desist" if anyone happens to be going to one of the shows
(unfortunately, the tour isn't coming anywhere near me, though it is playing the town I grew up in -- but I doubt I can convince my parents to go). If anyone is going to one of the shows and feels like hooking me up with a t-shirt, contact me please
In the end, this whole thing, like so many intellectual property debates, seems almost entirely pointless. Intellectual property just becomes something that people fight over because they can
, and it makes it difficult for people to step back and take a look at the bigger picture to recognize just how stupid the whole thing looks. It's hard to think of any sane or logical reason why Dweezil shouldn't be able to go out on tour as Zappa Plays Zappa. The idea that trademark should get involved in any of this would only make sense in the most ridiculous of trademark scenarios -- one where greed seems to be leading over basic common sense.
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Posted on Techdirt - 24 June 2016 @ 10:47am
We've been covering the still going lawsuit by CBS and Paramount against Axanar Productions for making a crowdfunded fan film that they claim is infringing because it's looking pretty good. Things got a little weird last month when the producer of the latest Star Trek film, JJ Abrams, and its director, Justin Lin, basically leaked a bit of news saying that after they had gone to Paramount, the studio was going to end the lawsuit. At the time, Paramount said that it was in "settlement discussions" and that it was "also working on a set of fan film guidelines."
We pointed out that we were concerned about what those guidelines might entail, and worried that they would undermine fair use. In the meantime, as settlement talks continued, the case moved forward. I'm still a little surprised that the two sides didn't ask the court for more time to continue settlement talks, as that's not that uncommon, and it's something that a judge often is willing to grant if it looks like the two sides in a dispute can come to an agreement. But, without that, the case has continued to move forward with ongoing filings from each side.
In the meantime, however, the StarTrek.com website, run by CBS and Paramount, has now posted those "fan film guidelines" and they are absolutely ridiculous. The Axanar team sums it up nicely by saying that:
The CBS "Guidelines" for Fan Films basically make it impossible for fan films to continue as they have.
The first item, for example, completely rules out Axanar's plan for a feature length fan film:
The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.
And there's another one that's clearly targeted at Axanar:
The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.
I don't quite see how or where that fits into fair use's rules...
Another one clearly targeted at Axanar -- which raised over a million dollars in Kickstarter
CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.
That seems rather limiting.
Some of the other terms are more reasonable, but it seems clear that these guidelines are pretty specifically designed to cut off an Axanar style fan film, and seem to be trying to cut off a lot more than fair use almost certainly allows. While for the sake of the folks working on Axanar, I still hope that this settles amicably, it might be a lot nicer to have Axanar be able to win a fair use claim in court over this.
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Posted on Techdirt - 23 June 2016 @ 3:39pm
Back in April, we noted that California Assemblymember Mark Stone was pushing some legislation to basically push California governments to copyright and trademark everything they could. This was a bad kneejerk response to the admittedly ridiculous situation in Yosemite, where the concessions vendor had trademarked various park names and then tried to hold them ransom. Of course, the proper response is to make sure that kind of thing can't be covered by trademark or copyright law, not push state government entities to lock up things under intellectual property laws.
Despite widespread criticism, the plan moved forward with only modest tweaks earlier this month. Thankfully, with the help of EFF pushing lots of people to speak out against the bill, it appears that the California legislature has basically dropped the proposal entirely. The amended bill looks very, very different. See all that red text? That's what's been removed:
That's basically all the bad stuff. What remains is basically a requirement that state agencies "consider" the intellectual property rights at issue when they're writing contracts -- which as EFF notes -- should more effectively deal with Yosemite-like situations, without the massive overkill of giving California government agencies copyrights and trademarks in everything.
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Posted on Techdirt - 23 June 2016 @ 2:07pm
You may recall that a year ago, a massive DDoS attack was launched against GitHub from China. The attack itself was somewhat clever, in that it effectively turned the Great Firewall around, using Chinese search engine Baidu's ad platform and analytics platform to basically load code that contributed to the attack. The target of the attack were two tools that helped people in China access material that was blocked in China by the Great Firewall. Of course, this attack was actually the second attempt by China to stop people from accessing such information on GitHub. The first attack involved just using the Great Firewall to block GitHub entirely (it needed to block the entire GitHub, rather than just specific pages, because GitHub is all HTTPS) -- but that caused Chinese programmers who rely on GitHub to freak out and point out that they rely on GitHub to do their jobs.
Well, this third time, China is trying a different approach: it's sent a takedown request to GitHub, asking if a certain page can be removed for "malicious slander." Since GitHub posts all its government takedown notices, you can see the full request, which is rather short and sweet:
Cyber Security Association of China
To whom this might be concerned at GitHub:
The post at https://github.com/programthink/zhao/issues/38 vilifies our President Xi as a murder suspect, which is a groundless and malicious slander. We hereby express our strong concern and request you to take it off your website at the earliest time possible.
Cyber Security Association of China
June 8, 2016
Address: No.190 Chaoyangmennei Street, Dongcheng District, Beijing. Zip Code: 100010
The blog post link above where we found this story also notes that the entire repo that includes this content is currently not accessible in China, though it's accessible outside of China. At the very least, that suggests that GitHub disabled access to it within the country. It's, of course, unknown if China believes that disabling access just from within China is enough based on its takedown, but it is the equivalent of just blocking it via the Great Firewall -- so perhaps.
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Posted on Techdirt - 23 June 2016 @ 12:48pm
We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.
While it was originally published almost exactly a decade ago, I still find myself regularly referring to Yochai Benkler's excellent The Wealth of Networks: How Social Production Transforms Markets and Freedom
. This book was, and remains, the sort of bible for understanding not just the power of the internet to create all sorts of wonderful new connections, freedoms and innovations -- but also the many threats to the internet as well. It's optimistic about the potential, but recognizes that such potential is not necessarily inevitable (perhaps in contrast to our reading list book
from two weeks ago, Kevin Kelly's new book, The Inevitable
It is a fairly dense
book, packed with a ridiculous amount of thought provoking ideas, concepts and revelations that have shaped the way I think about the internet. In revisiting the book, I frequently come across passages that I forget about, but which I recognize deeply impacted the way I view certain aspects of the internet. The fact that it's still so relevant today, despite being about the constantly changing internet, suggests just how perceptive and forward reaching the book was when it first came out. If you somehow have missed it over the past decade, now would be a good time to fix that.
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Posted on Techdirt - 23 June 2016 @ 11:42am
Back in April, we talked about the fact that the lawsuit against Led Zeppelin's Robert Plant and Jimmy Page for copyright infringement over "Stairway to Heaven" was moving forward to a jury trail, and how ridiculous it was. As we noted, the song was written in 1970, and it's a bit crazy to argue after all these decades that there's infringement. But, more importantly, the similarities between Stairway and the Spirit song "Taurus" were just a few common notes that were predated by many artists, including Bach's Bouree in E Minor. Still, as we'd seen with the Blurred Lines case, when copyright cases go to juries over song similarities, they often turn out wacky. The intricacies of copyright law are tossed out the window and often "hey, these sound similar" seems to win out.
So it's fairly surprising, honestly, that the jury unanimously sided with Led Zeppelin in this case, saying that while the copyright on Taurus was valid and they believed that Plant and Page had likely heard the song (the two bands toured together, even though Jimmy Page testified that he didn't believe he'd ever heard "Taurus"), there was not substantial similarity between the two songs.
Again, this is pretty surprising, because if you take an unsophisticated audience and just play the clips of the two tracks next to each other, it's not hard to hear them and say "sure, those are kinda similar." About the best explanation I've seen for why the jury decided this way in this case, was that the jury just liked Page and Plant more than the plaintiff -- Michael Skidmore -- who was the "trustee" of the estate of Randy Wolfe, the deceased musician who wrote Taurus. But, when copyright decisions are being made based on who's more likable, that doesn't sound like a particularly functional copyright system.
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Posted on Techdirt - 23 June 2016 @ 10:40am
A court in Berlin has made a very bad ruling, saying that digitizing images in the public domain creates a new copyright. We wrote about this case last year, involving the Reiss Engelhorn Museum in Mannheim suing Wikipedia because users had uploaded 17 images of the museum's public domain artwork. Ridiculously, the German court sided with the museum:
The court ruled against the Wikimedia Foundation and in favour of the Reiss Engelhorn Museum. The German court dismissed the case against Wikimedia Deutschland on the grounds that it was not legally responsible for the files in question, which were held by Wikimedia Commons in the US, which in turn are managed by the Wikimedia Foundation.
This is not a particularly new issue -- it's come up many times in the past. In the US, thankfully, we have a nice precedent in Bridgeman v. Corel
that states clearly that exact photographic copies of public domain works are not protected by copyright, because they lack the originality necessary for a copyright. Of course, that hasn't stopped some US Museums from looking to route around
that ruling. Over in Europe, where there is no Bridgeman-like ruling, we tend to see a lot more of these kinds of attempts to relock down the public domain by museums. There have been similar attempts in the UK
and in France
, though as far as I can tell, neither case went to court.
Wikimedia says that it will appeal the ruling, which is the right move, but really an even larger question is why museums, which should want to more widely share such artwork with the world, are being so overprotective of these works. It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.
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Posted on Techdirt - 22 June 2016 @ 3:47pm
So something fascinating happened in Congress today. No matter what your opinion is on gun control or the various legislative proposals around it that have been up for debate in the past week or so, it's hard to fathom what Congressional Republicans thought they were doing today in shutting off the live video feed from the House floor. A bunch of Democrats decided to hold a sit in on the House floor to push for a vote on some gun legislation. That's a bit of a stunt no matter how you look at it, but the Republicans shot back by helping that stunt get much more attention by not just gavelling the House out of session, but also turning off the live feed of the House floor that flows to C-SPAN and out to the rest of us. C-SPAN doesn't control the cameras and is at the whim of Congress to access that feed, so when the GOP shut off the feed, C-SPAN was left without. This isn't a stupid move that's limited to the Republican side of Congress, apparently. Eight years ago the Democrats did the same thing when they controlled the House and were upset about Republicans trying to focus on a particular issue.
Of course, we now live in a modern technological age, where everyone has the power to broadcast live video in the devices we all carry in our pockets. Thus, despite House rules that forbid any sort of broadcasting from the floor, Rep. Scott Peters started broadcasting from the floor. And even as the Sergeant at Arms tried to stop the broadcasting, more people on the floor started using Periscope, Snapchat and Facebook Live, leading to C-SPAN rebroadcasting those feeds.
C-SPAN claims it's the first time it's done this (and let's not even bother with the copyright questions related to all of this...). But it seems like yet another example of a form of the Streisand Effect. The sit in was designed to get attention, and it certainly would have no matter what. But shutting off the cameras and trying to shut down the entire process only seemed to drive that much more attention to what was going on, and modern technology helped let the story still come out, no matter what the "House rules" happened to say.
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Posted on Techdirt - 22 June 2016 @ 2:26pm
Just yesterday we wrote about how the Senate was, somewhat ridiculously, rapidly pushing forward plans on a vote for an amendment to the laws concerning what information the FBI can gather using National Security Letters (NSLs). Despite the fact that the big push for this bill began a few weeks ago, and the fact that it had absolutely nothing whatsoever to do with the Orlando shooting, cynical Senators including John McCain and Mitch McConnell pointed to the shootings in Orlando as a reason that this expansion of FBI surveillance powers was needed. Of course, the reality is that it wasn't needed, and the law is really there to paper over the fact that the FBI has already been widely abusing its NSL powers to get information it's not allowed to request.
After a vocal debate this morning, the measure (somewhat surprisingly) failed to pass, but by just two votes. It need 60 votes to move forward (it was a vote for "cloture" on debate, which requires 60 votes), and it only received 58. But McConnell already made it clear that the amendment will be reconsidered soon, which means he's likely going to be pushing strongly to get those two remaining votes.
In other words, this particular debate is far from over, and thus it's important to make sure your Senator knows not to support this. You can see the roll call on the votes here to see what your Senators voted. Somewhat surprisingly, neither of my Senators in California voted for it. Feinstein didn't vote or wasn't present and Boxer voted against. I'm guessing that Feinstein would likely vote for it in a revote, given her willingness to support greater surveillance, so it's possible that McConnell really only needs one more vote, unless people can convince some of the "Yea" voters to change their mind.
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Posted on Techdirt - 22 June 2016 @ 11:41am
We've been talking a lot about Rule 41 lately around here. As we've discussed, the DOJ had pushed for an update to the rule, basically granting the FBI much greater powers to hack into lots of computers, including those abroad (possibly creating diplomatic issues). We've been discussing the problems with the DOJ's proposed change for years, and we haven't been alone. Civil liberties groups and tech companies have both blasted the plans, but to no avail.
Back in March, a judicial panel approved the DOJ's proposed changes, and the Supreme Court gave its blessing a month later. The rule changes are set to go into effect on December 1st if they're not stopped. Senators Ron Wyden and Rand Paul have introduced a bill to block them, while the EFF, Tor and friends have kicked off a big No Global Warrants campaign, encouraging Congress to block this change.
The DOJ is being fairly proactive in trying to brush aside concerns about the Rule 41 change, and earlier this week put up a blog post insisting that there's nothing to see here at all, and everyone who's worried should just move along already.
The amendments do not change any of the traditional protections and procedures under the Fourth Amendment, such as the requirement that the government establish probable cause. Rather, the amendments would merely ensure that at least one court is available to consider whether a particular warrant application comports with the Fourth Amendment.
The amendments would not authorize the government to undertake any search or seizure or use any remote search technique, whether inside or outside the United States, that is not already permitted under current law. The use of remote searches is not new and warrants for remote searches are currently issued under Rule 41. In addition, most courts already permit the search of multiple computers pursuant to a single warrant so long as necessary legal requirements are met.
This is... skirting the truth, at best. Under the existing Rule 41
, there are clear limits on warrants that are outside the jurisdiction of the court (see 41(b)). The new Rule 41 wipes away many of those restrictions by adding an entirely new form of warrants for "remote access to search electronic storage media." This is the kind of thing that Congress is supposed to decide upon, not the courts at the behest of the DOJ. If Congress hasn't granted this authority, it's pretty ridiculous for the courts to just do it on their own, and, furthermore, to insist this is little more than an administrative change.
The DOJ also leaves out that the new rules also effectively wipe out the requirement to give a copy of the warrant to the person whose computers are being hacked. Yes, the new rules require a "receipt" but they switch to a "reasonable efforts" standard, rather than the current standard, which is that they must give it to the person or "leave a copy" where the property was taken. That pretty much guarantees that some of the people who are hacked following this won't even know about it.
And if it were really true that this new rule doesn't change anything, then why is the DOJ pushing so hard for it? Remember that a bunch of courts have been throwing
of these searches
as being illegal, so clearly there's an issue here.
The DOJ insists that the new rules only apply in narrow cases WHERE YOU SHOULD ALL BE AFRAID because EXPLOITED CHILDREN ARE AT RISK IF YOU DON'T ALL SHUT UP.
First, where a suspect has hidden the location of his or her computer using technological means, the changes to Rule 41 would ensure that federal agents know which judge to go to in order to apply for a warrant. For example, if agents are investigating criminals who are sexually exploiting children and uploading videos of that exploitation for others to see—but concealing their locations through anonymizing technology—agents will be able to apply for a search warrant to discover where they are located. A recent investigation that utilized this type of search warrant identified dozens of children who suffered sexual abuse at the hands of the offenders. While some federal courts hearing cases arising from this investigation have upheld the warrant as lawful, others have ordered the suppression of evidence based solely on the lack of clear venue in the current version of the rule.
I'm all for the DOJ going after people sexually exploiting children. It seems like a pretty good use of their time. But we should always be skeptical when law enforcement starts throwing out "sexually exploited children!" and "terrorism!" as reasons to upend existing rules. Especially when they cover something as important as how broadly the FBI and DOJ can hack into people's computers.
The FBI has a rather long history of abusing its surveillance powers, and especially seeking to avoid strict oversight. Approving such a change just because the DOJ is insisting it's "FOR THE CHILDREN, WON'T YOU PLEASE THINK OF THE CHILDREN!" isn't a particularly good reason. If the DOJ really thinks this kind of expansion of its ability to hack computers both at home and overseas (again: this is a diplomatic nightmare waiting to happen) is really so important, then it should have Congress pass a law, rather than insisting that it's nothing more than an administrative change to clarify a rule.
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Posted on Techdirt - 22 June 2016 @ 10:38am
Earlier this week I got knocked out by some pretty serious food poisoning. The few times I would try to do some work or pop in on Twitter, all I was seeing was people mocking the London Review of Books' somewhat insane 35,000-word-long profile of Craig Wright, the guy who earlier this year claimed to be the real Satoshi Nakamoto. While he even convinced Gavin Andresen (the guy who really turned Nakamoto's original work into actual Bitcoin), many others quickly pointed out that Wright's "proof" appeared to be a giant scam. Why write a 35,000-word profile on a guy who isn't Satoshi Nakamoto? I don't know, but thankfully the food poisoning and the few snarky tweets I saw saved me from digging into the entire thing and wasting an afternoon. Fusion posted a much shorter summary of the piece, in case you're wondering.
Buried in all of this was a plot by Wright and a Canadian company named nTrust, to basically patent all the Bitcoin/blockchain stuff they could think of, and then after Wright was revealed to be Nakamoto, sell it off for ONE BILLLLLLLLLLION DOLLARS.
The plan was always clear to the men behind nCrypt. They would bring Wright to London and set up a research and development centre for him, with around thirty staff working under him. They would complete the work on his inventions and patent applications – he appeared to have hundreds of them – and the whole lot would be sold as the work of Satoshi Nakamoto, who would be unmasked as part of the project. Once packaged, Matthews and MacGregor planned to sell the intellectual property for upwards of a billion dollars. MacGregor later told me he was speaking to Google and Uber, as well as to a number of Swiss banks. ‘The plan was to package it all up and sell it,’ Matthews told me. ‘The plan was never to operate it.’
Elsewhere in the report, Wright talks about having "hundreds of patents and papers in progress -- research from the beginning." And later, a colleague of Wright's mentions a plan to push for "upwards of four hundred patents." It seems noteworthy, of course, that at least in the US you're supposed to file for a patent within a year of any public use or description of the invention. If he's trying to patent stuff "from the beginning," he might be a bit late.
Either way, while the big reveal hasn't worked the way they intended (because it appears to be bullshit), Wright is still moving forward on the patent front. He's been applying for a ton of patents
related to blockchain technologies:
Since February, Wright has filed more than 50 patent applications in Britain through Antigua-registered EITC Holdings Ltd, which a source close to the company confirmed was connected to Wright, government records show.
Interviews with sources close to EITC Holdings Ltd, which has two of Wright's associates as directors, confirmed it was still working on filing patent applications and Britain's Intellectual Property Office has published another 11 patent applications filed by the company in the past week.
Because nothing says revolutionizing money and technology like creating a giant patent troll to block such innovations.
"It looks like he is trying to patent the fundamental building blocks of any blockchain, cryptocurrency, or distributed ledger system," said Antony Lewis, a consultant on bitcoin issues to whom Reuters showed the patent titles and some of the texts.
In seeing some of the talk about the LRB article, some people keep pointing to the fact that Wright is trying to patent all this stuff as some sort of evidence that he really knows a lot about Bitcoin and the blockchain. People seem to have this magical spell come over them in that they think patents actually connote some sort of special status on people -- perhaps because they don't spend much time wading through tons and tons of ridiculous patents and wacky inventors insisting the patents matter much more than they really do.
Either way, if Wright gets his patents, whether or not he's truly Nakamoto, he could create an awful lot of problems for the advancement of Bitcoin and the blockchain. Because that's what patents are really for: blocking innovation, rather than encouraging it.
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Posted on Techdirt - 22 June 2016 @ 9:33am
Roskomnadzor is the Russian "telecommunications regulator" or "watchdog," but it could just as easily be described as the Russian internet censor, because that appears to be a large part of its role in the country. In the past, we've written about Roskomnadzor blocking all of Wikipedia over a single reference to hashish (really) and also a plan to block all of CloudFlare because the company made it difficult for Russia's internet censorship plans to work. Earlier this month, Roskomnadzor made news for blacklisting a Vice article, claiming that it would encourage shoplifting.
So, who better to support such a censorship regime than... Hollywood! The MPAA has now proudly signed an agreement with Roskomnadzor to cooperate on protecting copyright online. The linked article is unfortunately horribly written. The title implies that the MPAA represents the government of the United States (while sometimes true in practice, that's not how it's supposed to work...) and then provides frightfully few details on what the agreement really is), beyond "protect copyright!"
The memorandum reflects the principles and rules of self-regulation in the interaction of rights holders with internet facilities, essentially protecting copyright on the internet.
That feels like something the reporter pulled straight from a press release and didn't bother to check what it meant. Still, the MPAA getting into bed with the Russian state internet censor should raise some pretty serious questions. The Russian government has, somewhat infamously, been known to use copyright law to intimidate and silence government critics
. The government also has used SOPA-like laws to encourage spying on users
And yet, this is the same MPAA that claims that one of its core principles is preserving free speech
. Perhaps they just mean in the US? Those in Russia are on their own, apparently, because the MPAA is on the side of the government censor. Or, perhaps the reality is that the MPAA has no problem with censorship anywhere, so long as it's censorship on behalf of the MPAA.
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Posted on Techdirt - 22 June 2016 @ 8:30am
Let's start off with this: there's no legitimate way to defend Zane Alchin, a guy in Australia who appears to be an all around horrible person. He went on Facebook, and after seeing a friend of his post (and mock) a woman's Tinder profile, proceeded to post a whole bunch of pretty horrible and misogynistic posts on Facebook, including some pretty horrifying statements about "raping feminists." I won't post any of his other comments, though they're covered in some of the articles written about the case. Alchin, who now claims he was just drunk and trolling, and also insisted he wasn't breaking any laws, has since discovered that apparently he was breaking a weird Australian law, for which he's now pled guilty.
While Alchin admitted to posting the comments, he told police during an interview that "he was drunk at the time and the comments do not represent what he is about", the court documents said.
He said he was "internet trolling", the documents said, and was unaware it was a crime.
In January, Alchin entered a plea of not guilty to the offence, which carries a maximum penalty of three years' imprisonment.
But during a brief court appearance on Monday, his lawyer said his client would now plead guilty. Alchin is due to be sentenced on July 29.
The law in question is 474.14 of the Commonwealth Criminal Code
that is insanely vague. It basically says it's against the law to use a telecommunications network to "commit a serious offense." But "serious offense" is basically left unclear. The charges against Alchin said that he used the internet to "menace, harass or cause offence." And many in Australia are pointing to the case as a landmark case against online harassment
Again, Alchin appears to be a creep who deserves to have his name dragged through the mud for what he wrote online, but the idea that he's now facing three years in jail for what amounts to criminal "trolling" seems extreme and extremely problematic. We've certainly seen that Australia is no fan of free speech, with several questionable court rulings in the past few years, but criminalizing trollish behavior online seems like the kind of thing that is going to backfire in a big, big way. Lots of people say stuff online that may "cause offense." I'm offended by the idea that people face jail time solely for being jerks.
But when you criminalize offending someone, you actually hand tremendous power to people to attack others over "being offended." There seems to be this rush to try to criminalize speech people don't like, when it seems like most of this issue could easily be solved with simply more counterspeech. Shame Alchin all you want for being a jackass, but don't put him in jail.
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Posted on Techdirt - 21 June 2016 @ 3:43pm
Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn't have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there's a "reasonable likelihood" that it will invalidate some of the patent claims due to the submitted evidence.
In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used "the broadest reasonable construction" of the claims rather than the "ordinary meaning as understood by a person of skill in the art." CAFC sided with the PTAB, saying that the law says that you can't appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.
In a rare instance of the Supreme Court not slapping down the CAFC's ruling, it agreed with the appeals court.
Like the Court of Appeals, we believe that Cuozzo’s contention that the Patent Office unlawfully initiated its agency review is not appealable. For one thing, that is what §314(d) says. It states that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.)
For another, the legal dispute at issue is an ordinary dispute about the application of certain relevant patent statutes concerning the Patent Office’s decision to institute inter partes review. Cuozzo points to a related statutory section, §312, which says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied.... In our view, the “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more.
On the question of what standard to use in reviewing the claims, again the Supreme Court sides with CAFC and the Patent Office and against Cuozzo -- once again pointing to the plain language of the law:
The statute, however, contains a provision that grants the Patent Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter.”... The Court of Appeals held that this statute gives the Patent Office the legal authority to issue its broadest reasonable construction regulation. We agree.
The court notes that the "ordinary meaning" to those "skilled in the art" standard is what's used in court, but this is about the Patent Office re-examining the patent itself, at which point it gets to set the rules for what is patent eligible. And, further, it finds that the standard the PTAB uses is perfectly reasonable under its authority -- in part because of the public's "paramount interest in seeing that patent monopolies are kept within their legitimate scope." That's quoting a 1945 case, but it's always nice to see the Supreme Court properly noting that a patent is a form of a monopoly.
To some extent, this ruling doesn't change
anything, as it is just accepting the standard that the Patent Office has been using for a few years now. So whatever whining and complaints you'll see from patent trolls and their supporters is overblown. But this is a good ruling just in creating more certainty and clarity in the fact that the Patent Office can and should continue to use this process as it has been to reject overly broad patents.
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Posted on Techdirt - 21 June 2016 @ 11:49am
Folks in the Bitcoin/blockchain world can be fairly opinionated -- that's no surprise. But just because you have an interview go sideways, it doesn't mean you get to threaten a lawsuit over it. That's not how it works. Perianne Boring founded and runs a lobbying organization focused on Bitcoin/blockchain issues called the Chamber of Digital Commerce. I have to admit to not being that familiar with the organization (I'm more familiar with another organization called Coin Center). However, late last week, Boring appeared on a podcast called Bitcoin Uncensored. To say the interview did not go well... would be an understatement.
Again, there are lots of different opinions around Bitcoin and blockchains, and the hosts of the show are pretty clearly skeptical of both Boring's position and
knowledge on the issues -- and they don't hide their skepticism at all. The interview is basically a long attempt to pick apart Boring's knowledge of Bitcoin/blockchain and the regulatory issues related to it. It doesn't really get very confrontational in terms of yelling. They just keep asking questions that lead to more buzzwordy answers than substance, and then ask followups that highlight that. It does come across as a bit of badgering by the hosts who are playing a game of gotcha. But, still...
Not surprisingly, the interview doesn't go over well. They close it out by highlighting that she doesn't appear to understand a number of issues related to Bitcoin/blockchains, and they worry about what happens when people think she represents the technology and the regulatory questions. They point out that there are tons of scams in the space, and they worry that when someone represents the space and can't understand what's a scam and what's legit, it can lead to very bad results overall.
Fine. That kind of thing happens. People give bad interviews with people who are deliberately trying to make them look foolish. It doesn't necessarily mean they really are foolish, just that they got caught in such an interview. What happens next
is where things go weird. Boring apparently emailed one of the hosts of the show, Chris DeRose, to demand he take down the episode. Like so many people who are angry about content online, she trots out all the ridiculous reasons why:
If you can't read that, it says:
Incredibly disappointed by what happened today. Please delete the episode (link referenced below) immediately -- you are not authorized to publish this content. A cease and desist letter is forthcoming, and charges of harassment and slander will follow if you do not comply.
Yeah, so that's not how any of this works. She clearly agreed to go on the program, so there's no "authorization" needed to publish the interview. Publishing her own interview is also neither harassment nor slander. She does get credit for being correct that "slander" is the word for defamatory speech (whereas it's libel if it's written), but having listened to the entire interview, I don't hear anything that comes even remotely close to slander. They do mock her, and are perhaps a little harsh, but it's not slander. And, of course, threatening them only makes this worse. I never would have heard about any of this if she hadn't sent such a bogus threat email, and now it's getting more attention
because of it. There's a term for that somewhere...
I actually think it's good that there are people working to educate politicians on Bitcoin and blockchain technologies. I'm not nearly as skeptical as the guys who run the podcast are of the technology, though I agree that there are lots of questions about where it will go and if it will ultimately be as useful as some expect. I also recognize that sometimes interviews can go weird and not come out the way people expect. But to react by demanding it be taken down and waving around bogus legal threats doesn't seem particularly productive, and only seems likely to call into greater question Boring's other claims.
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Posted on Techdirt - 21 June 2016 @ 10:44am
Just a few weeks ago, we wrote about the FBI pushing strongly for an update to the law that covers National Security Letters (NSLs) to cover up the fact that the FBI has been using them to get electronic communications records. The current law on NSLs doesn't cover that information, though the FBI insists that it's just a "typo" in the law, and still frequently asks for them in its NSLs, because NSL recipients often don't know the law themselves and will still turn over the info. Of course, it helps that the NSLs often come with gag orders. Reports going back a decade have shown that the FBI has a serious problem with abusing its NSL powers to get lots of information it's not supposed to have. And rather than do something to stop such abuses, the FBI's friends in Congress have, instead, been trying to legalize such abusive practices to allow the FBI to do even more.
And, in the spirit of "leave no crisis unexploited," Senator Mitch McConnell is pushing forward on the amendment put forth by Senators McCain and Cornyn to expand NSLs. And, cynically, they're citing the Orlando shootings as the reason why, despite the fact that this amendment was being pushed for before the shootings even occurred and the fact that this would have done absolutely nothing to stop the shootings.
“In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations,” Senator John McCain, an Arizona Republican and sponsor of the amendment, said in a statement.
The FBI and others in law enforcement already have plenty of tools to do counterterrorism investigations (and, again, it's not even clear that the Orlando shooting was a terrorist activity in the first place). Nothing in this amendment would change how the FBI was investigating the attack. This is just McCain, McConnell and others exploiting the shooting to help the FBI further abuse its surveillance powers.
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Posted on Techdirt - 20 June 2016 @ 3:34pm
A few weeks ago, we wrote about how legislators in various cities (mainly SF, Chicago and LA) were trying to push through anti-Airbnb legislation that would require homeowners doing short term rentals to register with the city -- and which would hold the platform (Airbnb) liable if its users failed to do so. As we noted, that almost certainly violates Section 230 of the CDA, which bars any law that attempts to hold a platform liable for the actions of its users. At least in San Francisco, the Board of Supervisors ignored all of this with a city attorney claiming (incorrectly) that since it regulates "business activities of platforms," it's not regulating the content on those platforms. That's an... interesting dodge on the Section 230 issues. It seems unlikely to hold up in court, but California's been especially wacky on CDA 230 lately. The SF legislation has since passed, and it will be interesting to see if anyone (i.e., Airbnb) decides to challenge it in court.
Meanwhile, over in NY state, it seems that they're bringing out an even bigger and more clueless anti-Airbnb sledgehammer. It's a proposed bill that would bar Airbnb using homeowners from "advertising" short term rentals of their properties. They put it in SCREAMY LETTERS mixed with legalese:
PROHIBITING ADVERTISING THAT PROMOTES THE USE OF DWELLING UNITS
IN A CLASS A MULTIPLE DWELLING FOR OTHER THAN PERMANENT RESIDENCE
PURPOSES. IT SHALL BE UNLAWFUL TO ADVERTISE OCCUPANCY OR USE OF
DWELLING UNITS IN A CLASS A MULTIPLE DWELLING FOR OCCUPANCY THAT WOULD
VIOLATE SUBDIVISION EIGHT OF SECTION FOUR OF THIS CHAPTER DEFINING A
"CLASS A" MULTIPLE DWELLING AS A MULTIPLE DWELLING THAT IS OCCUPIED FOR
PERMANENT RESIDENCE PURPOSES.
Basically: you can't use Airbnb to rent out your home for a short period of time and make some extra money because NY legislators don't want to upset the hotel business
. Violating the law for Airbnb users can lead to increasing fines ($1,000 for first offense, $5,000 for a second and $7,000 for each additional violation). While a quick reading of the bill appears to focus on the homeowners, it can also be read to apply to Airbnb itself. Because the definition of "advertise" includes any "WEBSITES" that are "INTENDED OR USED TO INDUCE, ENCOURAGE OR PERSUADE THE PUBLIC TO ENTER INTO A CONTRACT FOR GOODS AND/OR SERVICES." (Sorry for the screamies, which are in the original).
Apparently, NY legislators are rushing this bill through
. The fact that it can go after Airbnb almost certainly violates Section 230 yet again, but a bigger deal is just how ridiculous this is for anyone in NY who wants to make use of Airbnb. Airbnb is a very useful platform for both homeowners and travelers. It's helpful for the tourism industry and creates a bunch of benefits. It's not perfect, but this kind of bill would effectively kill off a lot of the usefulness of Airbnb. And for what? The message the NY legislature would be sending is "innovation is not welcome in NY." As Julie Samuels wrote in the NY Daily News:
But rather than making it easier to bring this home-sharing consensus to New York and preserve the innovative possibilities in the sharing economy, the legislation in Albany threatens to foreclose productive conversations about a comprehensive regulatory environment for startups like Airbnb. Episodes like these — where New York’s leaders risk signaling that they are not interested in listening to what tech companies have to say — are precisely the kind of stories that loom large in the minds of entrepreneurs and hurt job growth.
What’s worse is that this bill does nothing to address legitimate concerns about home-sharing, or to support tech companies’ efforts to crack down on illegal hotel operators who seek to remove housing from the market. Instead, it sets a bullseye on thousands of middle-class New Yorkers by imposing fines of up to $7,500 for advertising their homes on networks such as Airbnb’s.
It's amazing how often politicians seem to want to attack, rather than nurture innovation that's helping their constituents.
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