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Posted on Techdirt - 7 July 2015 @ 1:38pm

ICANN's Threat To Privacy Is Not Theoretical

from the a-very-real-threat dept

A few weeks ago we wrote about ICANN's new attack on whois privacy, laying out a proposal to deny private/proxy registrations to anyone involved in "commercial" activity on their websites. While it may be difficult for some to comprehend why this is a big deal, it is not a theoretical concern at all. Cathy Gellis has a great story over at Popehat reminding everyone of the time litigious lawyer Charles Carreon was able to uncover the identity of a critic, who he then threatened repeatedly.

As we wrote at the time, even though the critic had used Register.com's privacy guard tool, when Carreon showed up, the company coughed up his identity, and Carreon used that to threaten the critic, making it quite clear that he was doing so just to piss off the critic. In a letter to the critic's lawyer, Paul Levy at Public Citizen, Carreon noted "there is essentially no statute of limitations on this claim" and "I have the known capacity to litigate appeals for years." Eventually, Carreon was forced to cough up money for the bogus legal threats.

Gellis was co-counsel with Levy in defending Carreon's critic and her Popehat post details how that experience makes it even clearer as to just how bad ICANN's proposal is:

It is a proposal that is extraordinarily glib about its consequences for any Internet speaker preferring not to be dependent on another domain host for their online speech. First, it naively pre-supposes that the identifying information of a domain name holder would only ever be used for litigation purposes, when we sadly already know that this presumption is misplaced. As this letter to ICANN points out (linked to from the independently expressive domain name “icann.wtf”), people objecting to others’ speech often use identifying information about Internet speakers to enable campaigns of harassment against them, sometimes even with the threat of life and limb (for example, by “swatting”).

Secondly, it pre-supposes that even if this identifying information were to be used solely for litigation purposes that a lawsuit is a negligible thing for a speaker to find itself on the receiving end of, when of course it is not. In the case of Carreon’s critic he was fortunate to be able to secure pro bono counsel, but not everyone can, and having to pay for representation can often be ruinously expensive.

Thirdly it pre-supposes that there is somehow an IP-related exemption to the First Amendment, when there most certainly is not. Speech is speech and it is all protected by the First Amendment. Attempts to carve out exemptions from its protections for speech that somehow implicates IP should not be tolerated, particularly when the consequences to discourse are just as damaging to speech chilled by IP owners as they are by anyone else seeking to suppress what people may say.

If you haven't yet seen it, that icann.wtf letter to ICANN is worth reading. It's not only a rare case where anti-harassment advocates and free speech advocates can actually come together and agree on a really, really bad idea, but it lays out the arguments for why this Hollywood-backed proposal is just incredibly stupid and dangerous.

If you want to contact ICANN to explain why this policy is a problem please do so today -- as it's the last day they're accepting comments on the proposal.

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Posted on Techdirt - 7 July 2015 @ 11:38am

Copyright Takes Down High-Profile Translation Of Thomas Piketty's Comments On Germany & Greek Debt

from the because-copyright dept

Here we go again with copyright taking content away from the public, rather than the other way around. You've probably heard about everything going on in Greece these days, with the big vote and the fight over Greek debt and how it will deal with it. Leading up to it, my social media stream suddenly filled up with people linking to a story at Medium with an English translation by Gavin Schalliol of an interview famed economist Thomas Piketty gave to the German publication DIE ZEIT. Whether you like/agree with Piketty or not (and I'm in the camp that thinks he's overrated), the interview itself was pretty interesting, making a key point that has gotten lost in much of the debate: that for all the pressure that Germany has been putting on Greece to repay its debts, Germany itself didn't repay its debts after World War II (or earlier wars). Lots of people have been talking about it, and tons of English-language news reports wrote up the story, with nearly all of them linking to Schalliol's translation. Just for example, here's the Washington Post, the Huffington Post, Quartz, Slate, Business Insider, Fortune, Marketwatch, and Vox, all of whom link to Schalliol's translation on Medium.

But, if you visit it now, you will not see the translation. Instead, you see this:

If you can't read it, it says:
I am currently in touch with DIE ZEIT to ensure my compliance with German copyright law. Updates will follow very soon. The original German interview with Thomas Piketty can be found here.
To be fair, it's quite likely that Schalliol's translation violated the copyright in the original. While some may debate whether or not a translation should ever really be subject to copyright (nothing is actually copied), it is pretty widely set in stone that translations are derivative works, and as such are subject to copyright. However, the simple fact is that DIE ZEIT did not choose to publish an English translation, and even if it now chooses to do so, it will happen after the big vote happened, rather than before, when Schalliol initially published his translation.

It's that translation that spread the interview far and wide and made it a big part of the public discussion over how Greece should deal with the German-led EU proposal, which it eventually voted down. I'm sure the copyright system supporters among you will leap to the defense of DIE ZEIT and the fact that, by law, its "rights" were violated. But, if you take a step back and look at the overall situation, it's difficult to see how the world is better off under such a result. If Schalliol had never been able to publish his translation, it's likely that Piketty's comments would have had a much smaller and more limited audience, limiting the role it played in the overall discussion. It wouldn't likely have had much of an impact on the end result, but at the very least, it helped provide a lot of context to people around the globe.

And, it's difficult to argue DIE ZEIT was somehow worse off. First, most of the articles actually linked back to the original as well, likely driving some amount of traffic. But, more importantly, it's difficult to argue that Schalliol's translation was a substitute for the original, given that even considering the small population that speaks both languages, it's likely that Schalliol's translation was almost entirely read by an audience that did not see the original and could not read it even if they wanted to.

If the intention of copyright is to better encourage the dissemination of ideas and knowledge, as we're often told, then shouldn't that kind of thing be encouraged, rather than discouraged? Instead, we get yet another story of copyright stepping in to stifle a public discussion of ideas.

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Posted on Techdirt - 7 July 2015 @ 8:21am

Corruption Watch: State Attorneys General Line Up Behind Jim Hood, Support Power To Attack Enemies Of Big Corporate Donors

from the gee,-I-wonder-why... dept

A large group of state Attorney Generals has now stepped into the legal fight between Mississippi Attorney General Jim Hood and Google. As we've explained a bunch, Hood went after Google with an investigation and detailed subpoena that was funded and written by the MPAA itself. In response to this, a federal court has already called out Hood's actions, noting that there was "significant evidence of bad faith" on the part of Hood as he attempted to unconstitutionally hold Google responsible for anything bad that its search engine found on the internet.

We've written plenty about issues with state Attorneys General. The state Attorney General position is frequently seen as the stepping stone to becoming state governor or US Senator. State AGs have a reputation as being grandstanding tools, focusing on getting big headlines over actually enforcing the law. In fact, they often will focus on grandstanding even when there is no legal basis whatsoever. The most damning account of this is one we wrote about five years ago, in which a group of AGs teamed up to shake down Chris Tolles, the CEO of online forum site Topix. The story is incredible and well worth reading. You'll see how a bunch of state AGs kept putting out press releases, blaming Topix for things with no legal basis. Tolles would go talk to them, explain how the company works in order to build understanding, and the state AGs would then, immediately, turn around and take what he told them, totally misrepresent it, and issue another press release twisting what he'd said into implying that the company was up to no good.

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That's right. Another press release. This time from 23 states' Attorney's General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn't like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and "immediately revamp our AI technology to block more violative posts" amongst other things.
In short, to state AGs, no opportunity to issue a press release slamming a tech company is too good to miss. We've seen it done against Twitter, Facebook, Craigslist, small social networking sites, MySpace, ISPs, and video game companies. Frequently there is no actual legal basis for this at all. They just issue completely misleading and out-of-context press releases that slam companies, frequently because people who are up to no good use those tools and the companies haven't magically weeded out bad actors. In fact, the state AGs have become so drunk with the power of all this that they've actually pushed very strongly to change federal law to give them more power to blame websites for the actions of their users, by exempting their investigations from Section 230 of the CDA (the law that says you can't blame sites for actions of their users).

A few years ago, seeing all these grandstanding plays by state AGs, some enterprising companies began to realize that this was a great way to attack competitors or companies they didn't like. And thus, as the NY Times covered last fall, a huge lobbying effort was set up by companies to woo state AGs with lobbying dollars, and push them to attack companies they didn't like. Microsoft, for example, used this to shake down foreign companies over copyright claims, even though copyright is a federal issue, rather than a state one. The NY Times article is rather eye-opening. It details how much lobbying efforts are now targeting state AGs, and how ridiculous it looks. It often involves ex-state AGs, lavish fundraisers and (quite often) issues that are completely unrelated to the state AGs mandate. Laws against corporate influence -- including things like having to register to lobby and preventing revolving door issues -- often don't apply to lobbying state AGs, and so the money and influence has come pouring in, which is making state AGs quite happy.

All this is prelude to the amicus curiae brief (friend of the court) filed by 40 state AGs in the appeal of that ruling against Hood. If you think that the state AGs are going to give up their new lobbying gravy train or their power to unconstitutionally shake down big companies, you've got another thing coming. The entire brief is one of "Hey we need this power, because FUD!" It starts out with a heartfelt plea for the continued right to "investigate potential violations of state law." Except, of course, that's almost never what these cases are about. Often there are no violations of law at all, but rather an attempt to blame companies for actions of their users -- which again is protected from liability.
If allowed to stand, the District Court’s March 27, 2015 order (the “Order”) enjoining the Mississippi Attorney General’s enforcement of his own subpoena would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry. With the Order as a guide, any target of a state investigation would be invited to conjure up potential federal defenses to yet-to-be filed civil claims and file a preemptive lawsuit in federal court against state law enforcement authorities. Such an outcome would undermine Attorneys General’s powers, granted to them by state constitutions and state statutes, to protect the general citizenry from violations of state law. It would also flood the federal courts with what amount to state-law discovery disputes. And it should not be countenanced by this Court.
What a bunch of hogwash. If there's a legitimate violation of state law, then such cases will quickly get dumped. In this case, it was clear from the beginning that the investigation (again, paid for and run by the MPAA rather than Hood's office) had nothing to do with "violations of state law." It was, as revealed by the Sony emails, entirely about trying to attack Google. That's why the court ruled in Google's favor, noting directly that Hood's proceeding "was brought in bad faith" and "with the purpose of harassing" Google in an effort to "coerce Google to comply" with unconstitutional demands to remove material from its website (in violation of the First Amendment).

The only situations in which Google's lawsuit provides a "roadmap" to others is if these state AGs are doing a similar attempt to use their power to demand the censorship of First Amendment-protected content at the behest of corporate interests. If they're not doing that, they don't have much to worry about. But, I guess, if you look at all those examples above, those kinds of bogus actions are an important part of some AGs' press and fundraising strategies. No wonder they're so loathe to give it up.

The state AGs' brief continually argues that state AGs should have almost unlimited power to investigate anything, because that's a huge source of their power, but it's equally the source of the kind of corruption that the NY Times article spoke about:
In furtherance of this paramount duty, Attorneys General have broad authority under the common law and/or state statutes1 to investigate potential violations of state laws within their jurisdiction, particularly state consumer protection laws.
But that broad authority does not trump the First Amendment and in no way should allow state AGs to launch massive investigations funded for and run by corporate entities into companies those entities don't like -- and whose sole purpose appears to be to violate the First Amendment rights of those targeted. This is a pretty basic and obvious distinction, and the fact that these state AGs play dumb about it is ridiculous, though not all that surprising.

The filing goes on and on about the importance of "civil investigative demands" (CID) -- the kind of subpoena-like tool that the MPAA wrote for Hood to send to Google. And no one doubts the importance of such tools. No one is questioning that. What's being questioned in this case is the ability for a third party representing corporate interests to write such a CID, give it to a state AG, and have that state AG send it -- especially when the clear intended purpose of that CID is not to investigate any violation of state law, but rather to force a company to censor content in violation of the First Amendment. Again, these distinctions are pretty obvious and the state AGs' brief ignores them all.

The state AGs also attack the fact that Google went to a federal court here, arguing that since Hood hasn't yet filed suit, Google has no right to go to court first -- which is just wrong. Not only has Hood made his intentions clear, Google is noting that it is protected under federal law from the crux of this investigation (to which the court agreed) and thus it is perfectly reasonable to seek an injunction by going to court.

And, of course, the state AGs try to attack Section 230. As we already noted, the state AGs have been lobbying strongly for a special exemption to Section 230 that would allow state AGs to ignore it. And here, it doesn't take them long to refer to the one case that has limited the interpretation of Section 230, the infamous "roommates.com" case, which argued that the site was not protected for content that it created itself (in that case, involving pull down options that could be seen as violating fair housing laws). This ruling is cited by nearly everyone seeking to undermine Section 230, and in nearly every case it has failed. That is one tiny narrow exemption from Section 230 in a very specific case, totally unrelated to the issues that Hood (er... the MPAA) are arguing in the CID that was sent. But, no matter, the state AGs see a tiny, tiny loophole and attempt to drive a Mack truck through it:
Google attempts to avoid this jurisdictional bar by arguing, in part, that it is entitled to immunity under the Communications Decency Act for any state law consumer protection claims the Attorney General may bring against it. Notably, however, the immunity the CDA affords internet service providers is not absolute. Although the CDA immunizes an interactive computer service from liability for content posted by a third party, it does not provide immunity for content or speech properly attributable to the service provider itself. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (“Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties[.]”) .... Accordingly, the Mississippi Attorney General is entitled to investigate Google’s activity to determine whether Google may be responsible for web content violative of Mississippi’s Consumer Protection Act. Indeed, it is unfair to ask the Attorney General to respond to Google’s contention that the CDA cloaks it with immunity when Google is withholding, and now has a preliminary injunction permitting it to withhold, the very materials that will allow the Attorney General to evaluate whether the CDA applies to Google’s acts and practices.
In other words, because of the very narrow and specific Roommates.com ruling, state AGs should be able to demand all sorts of stuff from companies, even if everything they're targeting is protected by Section 230, just in case the fishing expedition happens to turn up something not protected by Section 230. That interpretation effectively eviscerates the entire point of Section 230 protections and would allow the state AGs to shake down companies over actions they had nothing to do with. Such an interpretation is not just dangerous, it basically would open the floodgates to more of these bogus corporate-run and corporate-funded investigations.

The state AGs also present a ridiculous and misleading claim of "What's the big deal here, Google can just respond to the subpoena and it's not required to change any practices..."
Yet, here the Attorney General’s Subpoena merely represents an investigation. Responding to the Subpoena itself would not force or coerce Google to change its practices and procedures or otherwise abandon its rights. And, in fact, Google has not changed its behavior based on the Subpoena in order to eliminate the threat of potential prosecution--instead, it seeks to eliminate that threat through its lawsuit and the preliminary injunction.
But that ignores the entire history of how the state AGs operate. Again, read that story about Chris Tolles and Topix and his interactions with the state AGs. Despite no legal basis whatsoever, the state AGs constantly used any information he gave them in out-of-context and misleading press releases, creating a massive wave of bogus public pressure to force him to give in or just keep fighting more bad publicity and more bogus threats.

Whatever happens in this particular case, it seems abundantly clear that many state AGs are out of control and somewhat drunk on the power of the office they hold -- which has created a situation that can only be described as corrupt. They have tremendous investigatory powers to demand information, and yet there are almost no real limits on how they can effectively sell that power to third parties in the form of fundraisers and even handing over the keys to the investigation to those third parties themselves, as demonstrated by the MPAA writing out the entire CID that Hood sent Google. It's not surprising that fellow state AGs don't want to give up such power, but hopefully the court sees through this kind of power grab and puts an end to these kinds of bogus "investigations."

Nothing in this case would end the state Attorneys General legitimate investigatory powers. It would only serve to stop the abusive practice of allowing special interests to run clearly unconstitutional campaigns against companies they dislike by laundering them through state AGs offices -- or to stop the AGs themselves from engaging in these kinds of grandstanding against companies by misrepresenting what's happening and the law in order to get headlines. If the AGs want headlines and to present themselves as protecting the public, perhaps they could focus on actual law breakers instead.

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Posted on Techdirt - 7 July 2015 @ 6:15am

Newegg Asks Appeals Court For Help After Waiting Nearly Two Years For East Texas Judge To Actually Rule In Patent Case

from the get-moving-now dept

You may recall that back in November of 2013, we wrote about an absolutely insane ruling by a federal jury in East Texas, arguing that e-commerce vendor Newegg infringed on an absolutely laughable patent, held by a patent troll named TQP, which claimed to cover encryption. Newegg immediately promised to appeal the ruling -- so you may be wondering where that appeal is right now. So is Newegg. Yesterday, the company filed a petition for a Writ of Mandamus basically asking the appeals court to tell the district court to do its damn job and issue a final ruling (either on behalf of Newegg, or against it so it can appeal). Basically, Newegg has been stuck in limbo for nearly two years on this case for no clear reason. The judge in the case, Rodney Gilstrap, has just been sitting on the case, doing absolutely nothing for nearly two years, leaving Newegg unable to appeal.

The now-expired patent in question, 5,412,730, and here's the entirety of the claims:

1. A method for transmitting data comprising a sequence of blocks in encrypted form over a communication link from a transmitter to a receiver comprising, in combination, the steps of:

providing a seed value to both said transmitter and receiver,
generating a first sequence of pseudo-random key values based on said seed value at said transmitter, each new key value in said sequence being produced at a time dependent upon a predetermined characteristic of the data being transmitted over said link,
encrypting the data sent over said link at said transmitter in accordance with said first sequence,
generating a second sequence of pseudo-random key values based on said seed value at said receiver, each new key value in said sequence being produced at a time dependent upon said predetermined characteristic of said data transmitted over said link such that said first and second sequences are identical to one another a new one of said key values in said first and said second sequences being produced each time a predetermined number of said blocks are transmitted over said link, and
decrypting the data sent over said link at said receiver in accordance with said second sequence.

2. The method as set forth in claim 1 further including the step of altering said predetermined number of blocks each time said new key value in said first and said second sequences is produced.

TQP, a company controlled by notorious patent troll Erich Spangenberg (who now claims to have left the patent trolling business), claimed that this covered basically any encryption online and it sued hundreds of companies with most choosing to settle rather than fight -- with a variety of companies paying out over $45 million to settle TQP lawsuits. But, you know, that's not how NewEgg rolls, with its pledge to never settle with patent trolls.

The company went to court fighting this patent, even bringing out some of the biggest guns possible, having Whit Diffie and Ron Rivest appear as expert witnesses, explaining how ridiculous the patent in question was and how everything in the patent was in use in the market well before the "inventor" on this patent, Mike Jones, applied for it. And yet, because it's east Texas, back in November of 2013, the jury sided with the patent troll.

That's the stuff you already know. As mentioned, Newegg promised to appeal, but first it asked Judge Gilstrap to set aside the jury's verdict, as he is able to do. And then... nothing. As you can read in the petition for the Write of Mandamus and the even lengthier appendix to the petition, Newegg is getting pretty damn tired of waiting around. If Gilstrap rejects the company's request, then Newegg will appeal, but without him doing anything, the company is stuck in limbo, unable to actually move forward on appeal.
This Petition involves a case tried in November 2013 that still has not reached any appealable judgment. Although the jury found infringement and awarded $2.3 million in damages to TQP Development, LLC (“TQP”), it is beyond any reasonable debate that Newegg does not infringe the asserted claims, and Newegg sought appropriate post-trial relief on that basis. In the absence of a judgment, however, Newegg has been unduly burdened with an untenable $2.3 million liability on its books for 20 months and counting, which prejudices Newegg’s ability to make business decisions regarding that considerable sum.

Newegg has respectfully encouraged the district court to decide Newegg’s motion for judgment as a matter of law no fewer than four times, and has communicated the prejudice caused by the delay. It is now approaching two years after trial and no action has been taken by the district court on Newegg’s motion. This is several times longer than the time it has taken most other patent cases, tried before the same judge and around the same time, to reach final judgments. With no appealable judgment, and none ostensibly forthcoming, Newegg has no realistic recourse aside from seeking a writ of mandamus.
Newegg further points out that in the very same court, with a different judge, it was ruled that Intuit did not infringe on TQP's patent, despite using the identical encryption system on its site, and making the same arguments as Newegg.
Moreover, in a closely related case brought by TQP asserting the same patent and the same claims against Intuit, Inc., Judge Bryson of this Court (sitting by designation) granted Intuit summary judgment of non-infringement on the same grounds Newegg argued. Judge Bryson’s ruling applied to Intuit’s accused systems that were identical to Newegg’s, was based on testimony from the Newegg trial, and was made under a claim construction slightly broader (and thus more favorable to TQP) than the one given in Newegg’s case. Although Newegg was already entitled to judgment of non-infringement prior to Judge Bryson’s ruling, the force of collateral estoppel from the ruling further vindicates Newegg’s positions. This is not to mention the principles of comity that strongly encourage deference by Judge Gilstrap to Judge Bryson’s prior ruling on the exact same issue.
Newegg's filing goes through the full timeline, in which it has repeatedly asked the court to actually issue a final ruling one way or the other so it can get on with things. And... nothing.

Newegg notes that it's been sitting there with this giant $2.3 million liability that it can't do anything about and it also fears that the longer it waits, the more likely it is that TQP dissolves, leaving Newegg with no way to go after the company for fees and "other relief."
The failure of the district court to act while Newegg’s prejudice compounds cannot be remedied by awaiting the ordinary course of a final judgment and appeal. Nor can Newegg effectively do anything before the district court to avoid further delay. Indeed, Newegg attempted to encourage prompt resolution of this case in the district court no fewer than four times—twice requesting an oral hearing and twice submitting controlling dispositive supplemental authority—but can only do so much at the district court level to move things along. Newegg has been patient but firm, and filed the present Petition only as a last resort when no action from the district court appeared to be forthcoming 20 months after trial.

Newegg’s post-trial appealable judgment has already been delayed up to four times longer than other patent cases that went through trial around the same time as Newegg (November 2013) before the same judge. See, e.g., Hitachi Consumer Elecs. Co. v. Top Victory Elecs. (Taiwan) Co., No. 2:10-cv-260-JRG (5 months from April 2013 trial to appealable judgment); Wi-Lan Inc. v. HTC Corp., No. 2:11-cv-00068-JRG (5.5 months from October 2013 trial to appealable judgment); Cassidian Comms., Inc. v. microDATA GIS, Inc., No. 2:12-cv-00162- JRG (7.5 months from December 2013 trial to appealable judgment); Google Inc. v. Beneficial Innovations, Inc., No. 2:11-cv-00229-JRG (7 months from January 2014 trial to appealable judgment). Even considering the time from the close of post-trial briefing to judgment, the delay in Newegg’s case is still excessive— while Newegg has been waiting 15 months since briefing closed on its JMOL motion, the cases cited in the preceding sentence received judgments only two to five months after post-trial briefing closed. All told, data pulled from Lex Machina shows that Newegg’s case has been pending longer than 98.8% of cases filed before the same judge. Newegg’s case has taken far, far too long to reach an appealable final judgment.
In the filing, Newegg notes that it "makes no assertions" of "bad intent" by Judge Gilstrap. However, in an email from Newegg's Chief Legal Officer, Lee Cheng, you can sense his frustration:
Many have expressed concern and dismay about the rules, practices and rulings of various federal judges in the Eastern District of Texas (“EDTX”) in patent cases, including Judge Gilstrap. There is a common perception that the judges in EDTX adopt rules, engage in practices and issue rulings (or instructions that lead to jury verdicts) that favor plaintiffs, or which encourage or force defendants to settle even meritless cases to avoid the cost and risk of trial in EDTX. Some examples of such rules, practices and rulings are identified in the Petition. Commentators have speculated as to the judges’ motivations. Statistical evidence on patent infringement filings in EDTX generally, and with Judge Gilstrap specifically, seems to support the proposition that the venue and Judge Gilstrap are indeed favorites of the patent plaintiffs’ bar.
While he insists that the company does "not wish to speculate as to the motives or rationale" behind what's happening, "actions speak louder than words."
The facts of this matter are objectively egregious, and we have not received any guidance or reasonably acceptable explanations from Judge Gilstrap for almost 2 years for the incredibly prejudicial and extended delay in providing us with an appealable judgment. We need, and we deserve, justice and judicial relief in this matter now, under these exceptional circumstances.
This really is an incredible story. The whole thing is ridiculous and provides yet another reason why people should raise serious questions about the way in which the district court in East Texas handles its business.

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Posted on Techdirt - 7 July 2015 @ 4:12am

Company Sends Bogus Copyright Takedown Over Hacking Team Docs

from the good-luck-with-that-strategy dept

We've already written about the hack and leak of the Hacking Team and all its emails and files. There are likely to be tons of stories coming out from that hack over the next few days and weeks as people go through everything. However, it appears that someone is at least making a pretty ridiculous and half-hearted attempt to stuff that genie back in the bottle. Security consultant Mustafa Al-Bassam noted on Twitter that he received a copyright takedown notice for his mirror of the files from a different company, Lexsi.

If you can't read the letter, it clearly shows Lexsi making a copyright claim since it includes the "Copyright Holder's Name" in the list at the top. But in the body of the message, it makes a random claim about "sensitive and confidential information" rather than infringing information:

We have just identified that the website musalbas.com/ displays sensitive and confidential information.

We would be grateful if you transmit the identify of the hosting provider in order to retrieve the sensitve documents.

Please confirm the reception of our request by responding to this email.

Thank you in advance for your help and feel free to contact us should you need more information.
At first Al-Bassam thinks that Lexsi must be a Hacking Team client, but then notes that there's no listing of Lexsi in the documents (which include customer rolls). It's possible that the client relationship runs the other way. Lexsi claims it does "cybercrime mitigation," so it's possible that Hacking Team (or others?) hired the company to try to bury the Hacking Team documents -- though that seems like an unenviable, if Sisyphean, task. Either way, whatever Lexsi was thinking here, it seems unlikely to have the desired impact.

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Posted on Techdirt - 6 July 2015 @ 1:37pm

MPAA Argues That Sony Emails Shouldn't Be Used As Evidence In Google Lawsuit

from the oh-really? dept

We've already covered some of the details coming out in the flurry of legal filings in the dispute between Google and Mississippi Attorney General Jim Hood (helped along by the MPAA which financed and ran Hood's investigation). However, there is one little tidbit mentioned towards the end in one of the MPAA's many filings resisting subpoenas from Google to turn over internal documents. The MPAA's lawyers at Jenner & Block not only argue that much of the material being requested is "privileged," and thus allowing the requests will lead to lawsuits over the legality of those requests, but further argues that the emails in the Sony hack are similarly privileged and should not be available for use in lawsuits:

Quite apart from the policy concerns that arise if lawyers are allowed to use confidential documents first obtained by hackers, the fact that some privileged documents were published in the wake of the Sony hack will trigger subsequent litigation over privilege assertions. Privileged documents obtained by hackers and later published nevertheless remain privileged. Presumably, given Google’s apparent interest in the documents, Google will contest the privilege assertions.
This seems like a pretty longshot legal argument. It's pretty typical in business settings that once documents are out there in the public, any legal restrictions on them vanish. The idea that these documents, widely discussed publicly and in the press, would magically be banned from use in a legal case that was brought on because of those revelations is a huge stretch.

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Posted on Techdirt - 6 July 2015 @ 10:35am

UK Publishers Don't See Why Anyone's Complaining About Copyright Law

from the because-they're-paid-not-to-understand dept

As the copyright reform effort is underway in Europe, a number of legacy players are running a bit scared. The UK Publishers Association published a rather amusing attempt at "mythbusting" claims that reformers are making about copyright. Nate Hoffelder over at The Digital Reader does a nice job showing how many of the Publishers Association's claims are complete bunk, and clearly influenced by what's in the publishers' best interests, rather than anyone else's -- but that's to be expected. They're there to represent a position -- and rather than take a long-term view, recognizing that what's best for the public long-term will be best for the publishers as well, they take the short-term, protectionist, anti-consumer view. Because that's what these silly trade groups think they should do.

The document was released with a weird nonsensical statement from Richard Mollet, the head of the Publishers Association:

“It is time to debunk the long-pedalled myth that copyright is an obstacle to growth in the digital economy.

“When you look at the success of publishing and other creative industries in developing online products and services it is palpably untrue – copyright is the means by which the digital economy functions, allowing works to be made available to consumers and rewarding creators and the companies which invest in them.

“In order to undermine copyright, people often wrongly cite it as the source of problems in the digital single market; or, they falsely claim not to be able to do things which actually they can. Also, we often hear people propose that copyright is a block to them doing things which would be unfair and damaging to authors and publishers.
It is no myth that copyright has been an obstacle for many businesses. To claim otherwise is just laughable. An intellectually honest argument would admit that copyright law clearly benefits some parties and harms others. The policy questions we should be arguing are about who is helped and who is harmed and what's best overall for society and culture. But, the Publishers Association doesn't even want to give an inch and can't even admit that some innovators are clearly held back by today's copyright law.

The last paragraph really gets at the crux of the full document they posted, because the summary is basically "people are upset about this thing they can't do -- but they can do it if only they pay us lots of money." That's basically the argument behind nearly all of the "myths" the document "busts."

First, it claims that the idea that Europe needs a "single digital market" is bunk because you can just license everything in different regions with today's law:
Copyright is delivering a digital single market. The ability of publishers to simultaneously license works across the EU – and in many cases the world – derives from the current copyright framework.
Then they mock the idea that text and data mining uses are blocked under copyright law... because, again, they can just license:
The market-based licence solutions can be tailored to the needs of different researchers and enable publishers to check bona fides and ensure the integrity of the content platform.
How about students being unable to access resources across borders? No problem, the publishers claim, we have a license for that!
The licences under which publishers provide universities with material do permit students to access course materials from anywhere in the EU (and very often the world).
Okay, what about teachers looking for resources from other countries? Well, the Publishers insist, no one really wants that anyway, and if they did, well, there's a license for that:
There is no effective demand for this. In both the primary and secondary school markets textbooks and other resources are produced explicitly to assist the delivery of each member state’s curriculum. As such the supply and demand for such materials is highly country-specific and cross-border requirements are minimal. Should there be such a demand (for example, if a school in France was teaching the English curriculum) then these materials can easily be sourced and a licence secured.
What about libraries lending ebooks? Guess what? The publishers say you can license that as well:
A variety of agreements between authors, publishers and libraries are in place across the EU which are giving rise to thriving models of e-book lending. The licences underpinning these models help ensure that authors are rewarded when their works are enjoyed, and ensures that authors are willing for their works to be borrowed in this way.
Yeah, but that's not how regular libraries work at all -- and that model kinda worked pretty damn well for a long time. Libraries didn't have to pay royalties every time someone checked out a book. Changing up that model may make publishers happy, but it makes life more difficult for everyone else.

In short, the Publishers insist, don't reform copyright law because as long as you give the publishers enough money, they'll let you do what you want. This isn't just tone deaf, it totally misses the point. It's an argument for permission-based learning and permission-based culture. It shows no recognition of how actual education and learning occurs. It shows no recognition of the power of being able to research and learn from a variety of sources. It shows no understanding of the ridiculous prices these publishers often like to charge for many of these "licensed" solutions -- and the simple fact that they will often hold back these licenses.

And, most importantly, it shows no recognition of the fact that requiring different licenses in every region is a massive waste of resources and efficiency. But the publishers don't care because that inefficiency is where they make money.

The other "myths" are just as laughable and can basically be summed up as "this is a myth because we don't like that idea." For example, they hate the idea of "exceptions" to copyright law being "harmonized" because it might mean some countries that have overly aggressive rights might lose those. Notice that the following gives not even the slightest nod of interest to the rights of the public.
Fully harmonising exceptions so that the same rules are mandated across the EU will be hugely disruptive and would result in some creators being deprived of rights. There are different legal traditions across the EU with long-established precedents in place (for example, in France there is a much stronger protection of the author’s moral rights). Variations in copyright law, within the over-arching framework of the Directive, are currently permitted in order to recognise these inherent cultural and legal differences. Imposing a single order on the whole of the EU’s creators would almost inevitably cause some to have their rights eroded.
Yes, that's the point. There's a tradeoff here, and people are arguing that giving the public slightly more rights to works can actually help culture overall. Yes, some artists might lose some currently granted "rights" to block people, but that doesn't mean those artists are harmed. It just changes the marketplace somewhat, and likely will help expand it by simplifying rules across a much larger territory.

The list also trots out the usual talking points by those who are against fair use in other countries -- claiming that even though the US has it, it would somehow totally upend the legal systems anywhere else:
The introduction of Fair Use would be highly disruptive and expensive for creators and consumers. There is no established basis in European law for the concept of “fair use”, whereas in the US it has been fine-tuned over 170 years of established legal precedents. Simply introducing the concept into EU law would presage a great number of legal cases, with associated high legal costs, as the market – and judges – came to an agreement as to what the terms allowed and precluded. Since there is no evidence that the present system is in need of radical reform, introducing Fair Use would be an unnecessary and damaging step, and one which would have limited application given that international rules on copyright, such as the Three Step Test, would still apply.
Way to sell Europe short, Publishers. It is entirely possible to implement a fair use system today. Arguing that it cannot be done is clearly hogwash. In fact, all that case law in the US should actually help the EU to develop a better fair use system, since many of the questions have already been debated and answered and the EU can draft accordingly.

We'll close with the final one, because it's just so insane and so ridiculous:
MYTH #10 An ebook is the same as a normal book and therefore I should be able to resell it

It is not the same. Physical and digital books have very different properties and so require different treatments as regards the ability to re-sell them. An ebook is easier to copy and digital copies are identical clones of the original work meaning that second-hand goods are largely indistinguishable from the original; they can be reproduced indefinitely without any loss of quality. They can also be circulated widely without control but even introducing a “forward and delete” function would not provide effective protection given the ease with which such measures can be circumvented. It is clear that the existence of a market for second hand digital copies will destroy the primary market for authors and publishers.
Of course, as Nate wrote in his piece, if that were true, piracy would have already eroded the book market entirely, but it hasn't. Either way, the Publishers' position on ebooks appears to be: (1) we get paid many times for the same book and (2) we block you from reselling it. In short, they're focused on taking away value from ebooks, to make them even less valuable than regular books.

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Posted on Techdirt - 6 July 2015 @ 9:31am

Hollywood Resists Revealing Details Of Its Cozy Relationship With Mississippi AG Jim Hood, But Glimpses Come Out

from the buddy-buddy dept

The whole legal fight between Google and Mississippi Attorney General Jim Hood has been pretty nasty from the very beginning, but it's been getting even nastier as it drags on. Even in many high stakes lawsuits involving large companies and the government, the filings tend to remain somewhat bland and low key. But this particular fight seems personal to many of the parties involved (going beyond just Google and Jim Hood to the MPAA and the studios it represents). If you don't recall, for a few years now, Hood has been bizarrely blaming Google for the fact that people do bad stuff online, rather than understanding that a search engine isn't responsible for the content that it finds. The reasons for Hood's ignorance became a lot more clear after the Sony Hack, when internal emails revealed that Hood was acting as a puppet for the MPAA whose hand was shoved so far up Hood's behind that it was a bit unseemly.

The MPAA's lawyers ran the entirety of Hood's "investigation." Those lawyers actually wrote the subpoena that Hood sent Google (Hood merely added the opening and his signature). The studios paid for the investigation, and the program itself was explicitly designed not to protect anyone online but to bring down Google (dubbed "Goliath" in the documents). The MPAA hired Hood's best friend, mentor and predecessor to lobby Hood on this... and (coincidentally, I'm sure), Hood hired the very same guy, Mike Moore, to help with the investigation -- which should raise serious conflict of interest questions. As these details were revealed, Hood launched into a bizarre anti-Google rant that was both ill-informed and often flat out incorrect. He insisted perfectly legal things (a news site about dark markets) were completely illegal, he blamed Google for not doing things it actually had done, and he couldn't seem to figure out the first thing about how the internet -- or the First Amendment -- actually work.

With this new info in hand, Google went to court to argue that Hood's demands were illegal, and a clear attempt of abusing the power of his office to attack a business. The courts have overwhelmingly sided with Google up to this point -- putting his demands (written by the MPAA) on hold and saying that it was clear Hood unconstitutionally acted in bad faith in violation of the First Amendment.

The judge also ordered Hood to cough up his communications with the MPAA -- something Hood was refusing to do the last time we checked in on this case about two months ago.

Since then, there has been a flurry of activity in multiple courts as Google, Hood and the MPAA fight it out in increasingly emotional terms. As Hood tried to resist, Google opened up another front in this and sent subpoenas to the Hollywood studios directly for those same communications and more. The studios have resisted strongly, claiming that their own documents are unrelated and they're not a party to the lawsuit. Google, however, has pointed out that since the MPAA was running the government's investigation almost entirely, it seems reasonable to argue that that information should be disclosed:

Each Subpoenaed Party asserts "work product protection," but none can identify any litigation they contemplated at the time the requested documents were created. They claim there is a "First Amendment privilege" shielding their activities from discovery, but they cannot explain how it applies here where they are engaged in lobbying government officials, where that lobbying is a matter of public record, and where their conduct is in no way likely to meet with government reprisal. And they assert "common and joint interest privileges" but cannot articulate any valid "interest" that creates or preserves a privilege. While some responsive documents might theoretically be subject to the attorney-client privilege, the Subpoenaed Parties have not collected or reviewed such documents, let alone provided a privilege log for them.
The studios then hit back angrily at these requests arguing that Google is going way overboard in asking for basically all of its anti-Google documents, even those it never actually sent to Hood (after finally agreeing that they would produce its communications with Hood):
The MPAA and Jenner have already agreed to produce all responsive documents they exchanged with Attorney General Hood prior to Google’s lawsuit; after all, only documents that Attorney General Hood actually saw could conceivably influence him. That should suffice if Google wants to probe the Attorney General’s motives.

Google filed the present motion because it insists on more. Google demands documents that the Attorney General never saw, and that instead include the internal deliberations of the MPAA, its communications with its members, and the legal advice of Jenner, as well as communications with others similarly aggrieved by Google’s conduct, on the misguided theory that such documents somehow are probative of Attorney General Hood’s intent. Moreover, Google’s demands impose very substantial burdens on the subpoenaed parties, not only because they require a wide-ranging search for documents, but more importantly because many of the documents are protected by the attorney-client and First Amendment associational privileges. Not only would the MPAA and Jenner be required to devote countless hours to the creation of privilege logs, but further time-consuming and expensive litigation with Google over the privilege assertions would be a near certainty.
Then, last week, Google hit back in a flurry of additional filings concerning the MPAA and Hood. Many repeat the same basic points, but it's clear that the battle is getting angrier and angrier on all sides. You can sense the exasperation on the part of Google's lawyers as they explain, again, that the studios are clearly trying to hide the details of their plan to use Hood to attack their company in violation of the Constitution:
The Honorable Judge Henry T. Wingate has ruled that Google is likely to succeed against AG Hood under Constitutional and federal law.

It is undisputed that the parties before the Court on this motion — Twenty-First Century Fox, Inc. (“Fox”), NBCUniversal Media, Inc. (“NBC”), and Viacom, Inc. (“Viacom”) (collectively “the Subpoenaed Parties” or “the Studios”) — played key roles in AG Hood’s unlawful conduct. The record already shows that as part of a secret plan called “Project Goliath,” they spent hundreds of thousands of dollars lobbying state attorneys general to pressure Google to alter its search results and other products in service of their agenda on federal copyright issues. In connection with Project Goliath, lobbyists for the Subpoenaed Parties formulated AG Hood’s demands to Google and ghost wrote AG Hood’s talking points, letters and even the CID that prompted Google’s lawsuit and Judge Wingate’s injunction.

Despite this extensive involvement in the events giving rise to the underlying litigation, the Subpoenaed Parties claim here that: (a) documents regarding Project Goliath, beyond their direct communications with AG Hood, are irrelevant; (b) they should not, in any event, be burdened to produce what they have; and (c) that such materials might be privileged — but it is “premature” to assess that issue. None of these arguments has merit.
And then, after the MPAA revealed some of the requested documents, Google went back to court to highlight that what's been emailed only serves to more strongly support the claims of a questionable relationship between Hood and the studios, which should support their arguments for more information. It starts out with Google outright mocking the MPAA's argument that it's unfair to force them to hand over documents to a court in Mississippi, since they're NY-based companies not operating in Mississippi. Google points out that the MPAA and the studios seemed to have no problem at all going to Mississippi to hang out with Hood, so it seems odd for them to suddenly act as if Mississippi is out of the way.
The MPAA and Jenner claim that Google somehow “dragged [them] into its dispute with [the] Attorney General.” ... The DCA portrays itself as a mere amicus of the Mississippi court, and reassures this Court that it “does not do business in Mississippi.” ... Their rhetoric does not match reality.

The Subpoenaed Parties sought out Mississippi when they co-opted the state’s Attorney General for their anti-Google campaign. Documents withheld by the MPAA until last week reveal a stunning level of involvement in Mississippi’s affairs. The MPAA and Jenner repeatedly travelled to the state to meet with the attorney general; they hosted campaign fundraisers and made contributions for Attorney General Hood (“AG Hood”); and they controlled the pen used to draft AG Hood’s illicit demands and threats to Google. The DCA (funded by the MPAA) likewise visited with AG Hood in Mississippi, established a presence on the ground, and regularly communicated with him — retaining Mississippi’s former attorney-general, Mike Moore, to lobby AG Hood as part of “Project Goliath.” It was Google that was “dragged” into this dispute by the Subpoenaed Parties, and not the other way around.
And then there's more:
The Subpoenaed Parties have made clear that they have no problem acting in Mississippi when it suits their ends. After their years of direct involvement there, litigating objections to a single subpoena in the state could not be an undue burden.
The filing notes that while the MPAA revealed its communications with Hood to Google, it did so only if Google promised to keep them confidential. Google notes that there is no legal reason to do so, but for now it agrees to do so. However, it does reveal the nature of what's in some of them. And what it shows is the MPAA and Attorney General Hood working hand in hand, with the MPAA basically calling the shots.
The Subpoenaed Parties and their representatives made repeated visits to AG Hood’s office in Mississippi to guide his anti-Google work. Even when they weren’t physically at AG Hood’s office, they may as well have been, getting together with him in Denver and Santa Monica and holding a fundraising dinner for him in New Orleans. But those interactions only scratch the surface, as the documents reveal remarkably cozy and constant communications between the Subpoenaed Parties and AG Hood... (MPAA’s Brian Cohen greeting one of AG Hood’s staffers with “Hello my favorite” and offering to send her pictures of his vacation in New Zealand); .... (discussing a meeting with AG Hood’s staff the MPAA’s Cohen gushed “OMG we spent 3 hours.”). This pattern of sustained, intimate contact is hardly the mark of a party that merely “communicated with Attorney General Hood” “previously” as the MPAA characterizes itself.

Despite protesting that Google has “inappropriately grouped” it with the MPAA and Jenner ..., the DCA is no different. It retained Mike Moore, Mississippi’s former attorney general, as a lobbyist to influence AG Hood regarding his Google investigation, even while Moore was serving as a deputized agent of AG Hood in connection with that same investigation. Alongside the MPAA lobbyists, Moore too was in constant contact with AG Hood regarding Google. And he co-hosted the campaign dinner for him that the MPAA put on. ... Similarly, the DCA’s Executive Director, Tom Galvin, was personally involved in discussions with AG Hood, also traveling to Mississippi to meet with him.... Although the DCA claims it “does not do business in Mississippi” ..., its “business” is lobbying and manufacturing press at the behest of the MPAA which heavily funds it. It was extremely active in that regard in Mississippi. The Subpoenaed Parties did not act alone in animating AG Hood with respect to Google, they coordinated their efforts with the major Hollywood studios who make up the MPAA, including Fox, NBCU and Viacom (collectively the “NY Parties”). That coordination continues to this day — the NY Parties are using the same law firm, Jenner, to resist subpoenas from Google, and in the Southern District of New York, they have made relevance, burden and privilege arguments that are virtually identical to those that the Subpoenaed Parties have advanced here.
There's a lot more in the documents being filed (some of which we'll cover in other posts), but suffice it to say this fight is getting even nastier as it continues, and it sounds like the contacts between the MPAA and Jim Hood (the same emails that wanted a ridiculous amount of money to reveal following our public records request) show that the relationship was even tighter than was revealed from the leaked Sony emails.

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

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

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

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

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

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

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

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

from the that's-troubling dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from the thank-you-alice dept

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

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

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

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

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

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

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

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

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

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

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

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

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

from the treating-everyone-like-terrorists dept

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

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

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

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

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

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

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

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

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

Amnesty International Told That GCHQ Spied On Its Communications

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

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

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

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

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

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

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

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

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

from the eff-opposed-the-lawsuit dept

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Donald Trump's Lawsuit Against Univision Is Absolutely Hilarious

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

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

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

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

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

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

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

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

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

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

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

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

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

from the because-of-course dept

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

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

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

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

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

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

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

from the took-'em-long-enough dept

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

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