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Posted on Techdirt - 11 February 2016 @ 2:04pm

Law Students Line Up Behind 'Baby Blue' -- Will Harvard Law Review Sue?

from the law-student-on-law-student-legal-action dept

Back in 2014, we wrote about a crazy story, where the Harvard Law Review was claiming copyright over legal citation standards. It's true that the Harvard Law Review Association has published the famous "Bluebook" of legal citation standards for many years, but the idea that such citations are copyrightable is crazy. In response to this, law professor Chris Sprigman and open records guru Carl Malamud alerted the world of their intention to publish "Baby Blue" -- a competing legal citations publication. They noted that the 10th edition of the Bluebook, which as published in 1958, had clearly fallen into the public domain, and they were going to use that as the starting point for their competing product. Late in December, we pointed out that Harvard Law Review freaked out after its expensive Ropes & Gray lawyers saw a few tweets from Malamud suggesting Baby Blue was almost ready for publication. On Christmas Eve, a pricey lawyer sent off a nastygram, threatening a copyright infringement lawsuit if Baby Blue were published.

It took another month and a half or so, but Baby Blue is now available -- and it appears that law students are lining up behind it, rather than the Bluebook. A bunch of folks at Yale Law School and NYU Law School have come out in support of Baby Blue. It appears other law schools are jumping on board as well -- including Harvard Law School, Stanford and more.

Meanwhile, law professor David Post has provided a bit of free legal advice for the Harvard Law Review:

Here’s a bit of free legal advice: If you want to assert copyright protection over something, don’t call it “A Uniform System of Citation” —  because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn’t be clearer:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.

And now... everyone gets to wait and see what the Harvard Law Review Association decides to do.

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Posted on Techdirt - 11 February 2016 @ 12:44pm

Techdirt Reading List: From Counterculture To Cyberculture: Stewart Brand, The Whole Earth Network, And The Rise Of Digital Utopianism

from the internet-culture dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

If you haven't spent much time deep within Silicon Valley, it's often difficult to understand the culture here. People often try -- and they frequently get it wrong, often by resorting to weak stereotypes. Some people focus on the supposedly hippy dippy idealism of making the world a better place and improving access to information. Others focus on the massive businesses, huge monetary rewards and disruptive competition to argue that it's all about the money. And then people frequently talk about the very "libertarian" focus of Silicon Valley, often not realizing it's quite different than the political libertarianism most people think about. And then there are others who focus on the massive quest for data, and worry about the potential authoritarian possibilities associated with it. And, in a weird way, the reality of Silicon Valley is a hard-to-grasp-until-you've-lived-it mix of all of that. And focusing solely on just one almost always misses the real story and the real motivations behind what happens here.

That's why this week's recommendation on the Techdirt Reading List is From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network, and the Rise of Digital Utopianism, which really does a great job illustrating just how Silicon Valley culture turned into what it is today. The book is a few years old, and I was only just reminded of it during an AMA by John Perry Barlow.

There are some other books that delve into the culture of Silicon Valley, but I still go back to this one as being the closest I've seen to really getting the overall mix right, and actually showing how these different concepts aren't as contradictory as many people naturally assume. It shows how a technology that was originally focused on and designed for military uses, was quickly turned into a tool for freedom, liberation and expression. And, yes, with that came money and power as well. But the combination makes a lot more sense than most people think, and this book does a great job explaining how all of that came about.

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Posted on Techdirt - 11 February 2016 @ 11:38am

Years Later, White House Sends Two Copyright Treaties To Senate For Ratification: One Good, One Bad

from the let's-see-how-this-goes dept

It's not clear why it's taken this long, but late Wednesday, the White House sent two WIPO treaties over to the Senate for ratification: The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled -- usually just called "The Marrakesh Treaty" or "The Marrakesh Treaty for the Blind" -- and the Beijing Treaty on Audiovisual Performances, usually just called "The Beijing Treaty." The Beijing Treaty was completed in 2012. The Marrakesh Treaty in 2013. It's not clear why it took the White House until 2016 to move on them, but such is life.

We covered both treaties while they were being negotiated. The Marrakesh Treaty is a good one -- creating a system that carves out a place in copyright laws to make it easier for the blind and visually impaired to be able to get access to books that they might not otherwise be able to access due to copyright laws. For absolutely insane reasons, this treaty, which should have been an easy one for everyone to get behind, took basically forever. The big problem? Big copyright legacy players, such as the MPAA, are scared to death of anything that moves copyright in a direction away from more control by copyright holders. They literally flipped out at the idea of any movement towards making copyright work for the public, even blind people, so that they put on a full court lobbying press that almost worked. Thankfully, it did not. Now, we'll see if they're able to do the same and block the Senate from ratifying it. But, seriously, voting against the Marrakesh Treaty is basically spitting in the face of the blind. The MPAA has done some shameful stuff for many years, but if they block this, it'll be a new low.

On the flip side, there's the awful, stupid and unnecessary Beijing Treaty. This one creates an entirely new form of intellectual property, a sort of special copyright for performers. Remember that awful 9th Circuit ruling saying an actress had a copyright interest in her performance in a movie -- the one that later (thankfully) got overturned? Part of Judge Kozinski's reasoning in his decision was the Beijing Treaty -- which, obviously, hadn't even been ratified yet. Kozinski pointing to the Beijing Treaty was ridiculous for a whole variety of reasons, but with the White House now supporting ratification, things may get even more ridiculous.

Under this treaty, Hollywood, and Hollywood actors in particular, will likely be getting their very own form of copyright, which almost certainly means that ratifying the treaty will lead to new copyright laws that are even more restrictive. It will allow performers to deny the ability to make use of any sort of performance they were in, even if they don't (as they usually don't) hold a copyright in that work. It also expands certain definitions in ways that are incompatible with US copyright law, including an explicit "making available" right (something Hollywood has wanted for ages) and broadening the concept of "moral rights" for actors. While many other countries recognize moral rights (which let copyright holders deny uses they disagree with), the US has rejected them in all but a few limited areas (mainly visual artists). And, finally, the agreement includes anti-circumvention provisions, basically expanding that already ridiculously problematic concept, so that someone breaking DRM in a way that violates someone's "performance rights," even if for otherwise legal purposes, such as commentary and criticism, may be breaking the law.

You may be wondering why Hollywood is such a big supporter of this, since it actually will hand more monopoly rights to performers -- people Hollywood has a history of screwing over. Well, it's because the agreement does allow (of course it does!) the transfer of such rights from performers to producers. So, guess what will go into every Hollywood movie and TV contract? The performers will fork over their rights, and the big Hollywood studios will end up with yet another form of monopoly control to silence people. And, with it will come all these neat little presents that Hollywood has always wanted in regular copyright law, that it might now be able to force through via the ratification of this treaty.

Both of these agreements are big deals -- but in different ways. I'm guessing the reason they're moving forward together is that it's something of a tradeoff for the MPAA. They "allow" the blind to get a few more rights, while secretly chuckling all the way to the bank as they get a massive expansion in copyright via the audiovisual treaty. Hopefully, there will actually be a big public discussion about both of these, and the Senate realizes that the Marrakesh Treaty is necessary, while the Beijing Treaty is dangerous and should not be supported.

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Posted on Techdirt - 11 February 2016 @ 10:41am

Judge Changes Mind, Says James Woods Can Likely Unmask Guy Who Made Fun Of Him On Twitter

from the clownboy dept

Last summer, we noted a crazy case in which the famous Hollywood actor James Woods sued a random Twitter troll who had been making fun of Woods. The anonymous troll, who went by the name Abe List, mocked some of Woods' own nonsensical tweets about Caitlyn Jenner and Planned Parenthood by saying:

"@RealJamesWoods @benshapiro cocaine addict James Woods still sniffing and spouting."

-- Abe List (@abelist) July 15, 2015
As the lawsuit noted, Abe List had also mocked Woods in the past, such as calling him a "clown-boy." Of course "clown-boy" is not something than a statement of fact and thus can't be defamation. The real issue is whether or not saying "cocaine addict James Woods" is a statement of fact that is defamatory. Of course, considering that Woods is a public figure, this seemed like a really high bar to cross. With a public figure, the statements need to be made "with actual malice" or a "reckless disregard for the truth." In other words, it needs to be a case where Abe List knew those things weren't true, but said them anyway. That seems unlikely here. Oh yeah, and also, hyperbolic statements that are obviously hyperbole are not considered defamation, and this one seemed to qualify.

On top of all that, once Abe List got some lawyers (including Ken "Popehat" White), they pointed out that Woods himself had a rather long history of making similarly hyperbolic statements about people on Twitter. In fact, nearly identical ones:
Twitter also stepped in and refused to comply with the subpoena to identify Abe List, agreeing that we have a First Amendment right to speak anonymously, and that it did not think that Woods had a legitimate defamation case to unmask Abe List.

Abe List made an anti-SLAPP claim in California, which should stop all discovery and hopefully get the case tossed -- and things seemed to be going his way. Back in November, Woods' lawyers tried to move forward in discovering Abe List's identity but the judge rejected that plan.

Then, earlier this month, there was a hearing, and LA Superior Court judge Mel Recana, appeared to side with Abe List, issuing a 10-page tentative ruling dismissing the case. In that tentative ruling, Judge Recana noted:
The court finds that as a matter of law, in consideration of the totality of the circumstances, the tweet at issue is not a statement of fact but rather "rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt and language used in a loose figurative sense" that does not support a defamation action.... The tweet cannot be reasonably interpreted as stating actual facts about James Woods. Both tweets were in the context of expressing inflammatory opinions. There was no indicia of reliability as to defendant's tweets.
That was February 2nd. So, you can imagine basically everyone's surprise, when less than a week later, Judge Recana released a 1-page final order that says the exact opposite:
As contended by plaintiff: Applying the totality of circumstances test, and examining the plain language of the Tweet, it is clear that any reader of the AL False Statement could and indeed must view it as a statement of fact. As described by Professor Finegan, AL's use of a prenomial characterization (i.e., "cocaine addict") followed by a proper noun (i.e., "James Woods") is a well-established linguistic structure widely used to characterize people with shorthand factual information. Prof. Finegan's opinion that "many if not all readers of the 'cocaine addict' Tweet will understand and interpret Abe List to be making a factual claim about James Woods -- namely that he is a cocaine addict' is on an issue of fact. His opinion is sufficiently beyond common experience and assists the trier of fact.
It's hard to underscore how surprising and ridiculous this ruling is. Yes, putting a descriptive term in front of a name can be viewed as a factual statement, but the law requires you to put them into context, and here the judge is completely ignoring that, and bizarrely claiming that people literally "must view it as a statement of fact" even though basically no one would do so. It's also bizarre given the original tentative ruling that a judge would so completely flip positions within a matter of days.

One of Abe List's lawyers, Lisa Bloom, has put out a statement saying that they will be appealing this ruling:
On Twitter, Mr. Woods enjoys calling strangers "clown," "rat," "scum," and other epithets. Mr. Woods insults gay Americans and immigrants. he brags that he could murder a man whose shirt offends him. He claims a prominent publisher "whacks off" to a picture of a terrorist. When Twitter users challenge him, he tells them to "put down your crack pipe." He's mockingly accused at least three other Twitter users of using crack cociane.

Mr. Woods dishes it out, but he can't take it. When not-famous, not-wealthy John Doe responded to a James Woods slur on Caitlyn Jenner and Planned Parenthood in kind, calling him a cocaine addict, Mr. Woods sued. Mr. Doe's suggestion that Mr. Woods was on drugs was not meant to be taken literally, just as Mr. Woods' "put down your crack pipe" and other mocking language was not serious. This is his simple defense.

Twitter is a wide open forum where wisecracks are the norm. It exists not only for the rich and powerful to lambast others, but for all users to express themselves, often colorfully, without fear of being dragged into expensive, stressful litigation. It is frightening to be sued for $10 million by Mr. Woods, but Mr. Doe is fighting back.

Today the Court rejected our request to dismiss the case. We strongly disagree with the denial of the motion, and agree with the Court's tentative ruling that granted the motion. We look forward to presenting the issues to the Court of appeal. Mr. Doe is resolved to fight this case for as many months or years as it takes.
The statement also notes that Abe List filed some sort of "formal complaint" with Twitter, though the details there are not entirely clear. Either way, what should have been a simple case with a simple dismissal has now gotten a lot more complicated. It may be tempting to mock the judge, but be careful what you say, because apparently he believes that obvious hyperbole must be interpreted as fact if you put the statement in front of someone's name.

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Posted on Techdirt - 10 February 2016 @ 9:39am

CIA Director Freaks Out After Senator Wyden Points Out How The CIA Spied On The Senate

from the not-so-cool-under-fire dept

If you're a CIA Director, one would assume that you know how to be cool under fire, right? Apparently that's not the case for current CIA Director John Brennan who seemed to completely freak out when Senator Ron Wyden started asking questions about the CIA's infamous decision to spy on the network and computers of Senate Intelligence Committee staffers who were compiling a report on the CIA's torture program. The details are a bit complex, but the short version is that the Intelligence Committee, which has oversight powers over the CIA, had been set up in a CIA building, with special access to CIA documents, and a special search tool. Apparently, at some point, that search tool returned a document which the CIA had never intended to share with the intelligence committee staffers. That document, called "the Panetta Review" was a draft document that then-CIA chief Leon Panetta had tasked people internal at the CIA to prepare on what the Senate Intelligence Committee staffers were likely to find as they went through the documents.

Yes, this is fairly meta. You had Senate staffers reviewing CIA documents, and at the same time, the CIA reviewing those same documents to try to get out ahead of any controversy -- and to make matters confusing, the Senate staffers then got access to that CIA review document as part of their regular searches. When the CIA was questioned about this Panetta review, they freaked out, wondering how the Senate staffers got their hands on the document, and did what the CIA does: they spied on the Senate staffers' computers and network to try to determine how they got the document in the first place. This was despite a promise from the CIA that the Senate staffers' computers and network were considered off-limits (due to an even earlier incident). That resulted in Senator Dianne Feinstein accusing the CIA of illegally spying on the Senate (its overseers). In response, Brennan first denied the spying altogether, and then insisted that it was the Senate staffers who broke the law, saying they illegally mishandled classified CIA documents in how they handled the Panetta Review.

Eventually, the DOJ decided that there wasn't enough evidence that either side broke the law, and refused to make any criminal charges either way. While both the CIA's Inspector General and a special review board Brennan himself set up found that the CIA did, in fact, spy on the Senate staffers' network and computers, and that this was inappropriate, neither seemed to say that it rose to a truly controversial level. Not surprisingly, the review board Brennan set up himself cleared him of wrongdoing.

Mixed in with all of this are remaining questions about how involved Brennan himself actually was in all of this (he refuses to say) and an ongoing request for an apology. While the CIA's Inspector General claimed that Brennan apologized for the breach, later reporting by Jason Leopold at Vice showed that Brennan had drafted an apology, but never sent it. Instead, he apparently provided a very narrow apology solely to Feinstein and then vice chair Saxby Chambliss, basically of the "I'm sorry if what did upset you" manner.

Given this, during a rare open Senate Intelligence Committee hearing, Wyden decided to quiz Brennan about all of this, leading to a rather sarcastic and testy exchange that needs to be watched to be believed:

Immediately, Brennan gets snarky, noting that "This is the annual threat assessment, is it not? Yes?" implying that he doesn't think it's appropriate for Wyden to be bringing up this "other" topic in such a hearing. And it only gets worse from there. He immediately jumps to the argument, again, that it was the Senate staffers' fault for getting access to a document he didn't want them to see. He then says the CIA therefore had an "obligation" to find out how that happened. And then he, somewhat insultingly, suggests that Senator Wyden had not actually read the IG's account, or the report of the review panel that Brennan himself set up.

Wyden cuts him off, quoting directly from the report and notes that other agencies have all said it would be inappropriate to review Senate oversight computer systems, and asks Brennan if he disagrees. Brennan is clearly pissed off:
Brennan: Yes, I think you mischaracterize both their comments as well as what's in those reports. And I apologized to the Chairman and the Vice Chairman about the de minimis access and inappropriate access that CIA officers made to five emails or so of Senate staffers during that investigation. And I apologized to them for that very specific inappropriate action that was taken as part of a very reasonable investigative action. But do not say that we spied on Senate computers or files. We did not do that. We were fulfilling our responsibilities.

Wyden: I read the exact words of the Inspector General and the Review Board. You appointed the Review Board! They said nobody ought to be punished, but they said there was improper access. And my point is, in our system of government, we have responsibilities to do vigorous oversight. And we can't do vigorous oversight if there are improper procedures used to access our files.
Wyden then admits his time is up... but Brennan's so angry that he won't give up. He breaks all proper Senate hearing protocol and jumps back in, asking Wyden to say, again, that it was the Senate staffers' fault for accessing the Panetta Review:
Do you not agree there was improper access that senate staffers had to CIA internal deliberative documents? Was that not inappropriate or unauthorized?
Wyden angrily points out that everything the Senate staffers did was appropriate, and anyway, he's now asking about the CIA's activities, and points to the Inspector General review and the other review board... all the while with Brennan angrily shaking his head at Wyden. When Wyden finishes, Brennan goes back to being snarky, saying:
And I'm still awaiting the review that was done by the Senate to take a look at what the staffers actions were.
And then there's this:
Separation of powers between the executive, legislative branches, Senator, goes both ways.
In short: even if you have oversight over us, don't mess with the CIA, Senator. That's quite a statement.

He then goes on to again claim that Wyden is mischaracterizing everything, and that what the CIA did was entirely appropriate. Wyden concludes:
It's pretty hard to mischaracterize word for word quotes that use the words "improper access."

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Posted on Techdirt - 9 February 2016 @ 8:26am

Senator John McCain Weighs In On 'Going Dark' Debate -- Insists That He Understands Cryptography Better Than Cryptographers

from the maverick dept

Who knew that Senator John McCain understood encryption better than actual cryptographers? Late last week, he wrote an op-ed for Bloomberg View, in which he trots out all the usual talking points on how Silicon Valley just needs to nerd harder to solve the "Going Dark" problem. There's lots of cluelessness in the piece, but let's focus on the big one:

Top cryptologists have reasonably cautioned that “new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws,” but this is not the end of the analysis. We recognize there may be risks to requiring such access, but we know there are risks to doing nothing.
Actually, it kind of is "the end of the analysis" because the core element of that analysis is the fact that any attempt to backdoor encryption doesn't just make security weaker, it puts basically everyone at much greater risk. It introduces cataclysmic problems for any system that stores information that needs to be kept secure and private.

The following sentence is equally inane, in which he tries to place the "risks" of backdooring encryption on the same plane as the risk of ISIS using encryption. Let's be clear here: the risk of backdooring encryption isn't just significantly larger than the risk of ISIS using encryption, they're not even in the same universe. Even worse, by backdooring encryption, you are almost certainly increasing the risk of ISIS as well, by giving them a massive vulnerability to attack and exploit. Trying to suggest that this is an "on the one hand, on the other hand" situation is so ridiculously ignorant, one wonders who the hell is advising Senator McCain on this topic.

The fact is that there are always some risks. Tens of thousand of people die in car accidents in the US every year, yet you don't hear Senator McCain weighing the risks of driving versus the risks of banning cars. And that's a much more reasonable position to stake out, because banning cars would actually reduce automobile deaths — but it would also cripple the economy. But here's the thing: backdooring encryption has the potential to do much more damage to the economy than banning automobiles, because it would create vulnerabilities that could really completely shut down our economy. So, for McCain to pretend that there are somewhat equal risks on either side isn't just ignorant and meaningless, it's dangerous.
Some technologists and Silicon Valley executives argue that any efforts by the government to ensure law-enforcement access to encrypted information will undermine users’ privacy and make them less secure. This position is ideologically motivated and profit-driven, though not without merit. But, by speaking in absolute terms about privacy rights, they bring the discussion to a halt, while the security threat evolves.
Honestly, this is not true. I know that Comey's favorite line these days is that using strong encryption is a "business model decision," but Silicon Valley's interest in strong encryption doesn't appear to be driven by their own bottom lines, frankly. If it was, they would have adopted it much earlier. Strong encryption actually undermines some companies' business models, in that it makes it more difficult for them to collect the data that many of them rely on. The move towards stronger encryption has mostly been the result of a few things: (1) the fact that the NSA broke into their data centers and put their legitimate users at risk, (2) a better understanding of the wider risks from malicious attackers of what happens when you have weak encryption and (3) user demands for privacy. The last one may have indirect business model benefits in that it keeps users happier, but to argue that keeping users happy is somehow a purely money-driven decision, and frame it as somehow a bad thing, is pretty damn ridiculous.

And, honestly, while there are some activists who speak in absolute terms about "privacy rights," you rarely hear that from Silicon Valley companies. In fact, those who have absolute views on privacy tend to be the most critical of Silicon Valley companies for taking a much less principled view on "privacy rights." McCain pretending that this is driven by some sort of "privacy rights" advocacy suggests he's (again) woefully misinformed on this issue.
To be clear, encryption is often a very good thing. It increases the security of our online activities, provides the confidence necessary for economic growth through the Internet, and protects our privacy by securing some of our most important personal information, such as financial data and health records. Yet as with many technological tools, terrorist organizations are using encryption with alarming success.
Actually, they're not using encryption with "alarming success." There are very, very, very, very few examples of terrorists using encryption successfully. The Paris attackers? Unencrypted SMS. San Bernardino? Unencrypted social media communication.
The jihadists' followers and adherents use encryption to hide their communications within the U.S. FBI Director James Comey recently testified that the attackers in last year's Garland, Texas, shootings exchanged more than 100 text messages with an overseas terrorist, but law enforcement is still blinded to the content of those texts because they were encrypted.
Notice that this is the only example that comes up in these discussions. That's because it's the only example. And it's not even a very good one. Because, as with most encrypted communication, the metadata was still perfectly accessible. That's why they know that the attackers exchanged messages with a terrorist. Sure, they may not be able to understand the direct contents of the message, but the same thing would have been true if the attacker and the people he communicated with had worked out a code before hand. Or, you know, if they had met and talked in person. Is McCain going to ban talking in person too?

Finally, McCain's "solution" to all of this is to make a law telling Silicon Valley to nerd harder and solve the problem... or else:
As part of this effort, Congress should consider legislation that would require U.S. telecommunications companies to adopt technological alternatives that allow them to comply with lawful requests for access to content, but that would not prescribe what those systems should look like. This would allow companies to retain flexibility to design their technologies to meet both their business needs and our national security interests.
In other words, despite the fact that all of the best cryptographers in the world have said that what you're asking for is basically impossible and would make everyone less safe, just do it anyway -- and do it in a way that when it falls apart and everyone is made more vulnerable, Congressional leaders like John McCain can spin around and blame the companies rather than themselves.
We have to encourage companies and individuals who rely on encryption to recognize that our security is threatened, not encouraged, by technologies that place vital information outside the reach of law enforcement. Developing technologies that aid terrorists like Islamic State is not only harmful to our security, but it is ultimately an unwise business model.
Does John McCain seriously not employ a single knowledgeable staffer who could point out to him that basically every encrypted technology that ISIS uses is not made by an American company? Seriously, look at the list of ISIS's preferred encryption technologies:
So who, exactly, is developing technologies that "aid terrorists like Islamic State" and need their encryption undermined?

Meanwhile, we haven't even touched on the biggest issue, as was highlighted in that big paper from Harvard last week. And it's this: the whole Going Dark thing is a total myth, because for the tiny, tiny, tiny bit of information that is now blocked out by strong encryption, there's a mountain of other data that is now accessible to law enforcement and the intelligence community. Things have been getting lighter and lighter and lighter for decades.

Shouldn't a sitting Senator understand these basic facts?

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Posted on Techdirt - 8 February 2016 @ 12:48pm

Also Turning 20 Years Old Today: John Perry Barlow's Declaration Of The Independence Of Cyberspace

from the still-a-work-in-progress dept

Earlier today, we wrote about how 20 years ago today, the Communications Decency Act became law (most importantly, Section 230, rather than the rest of it, which was dropped as unconstitutional). Of course, at the time, everyone was mostly focused on the unconstitutional parts trying to outlaw lots of smut online. It was partly that signing (which itself was a part of the larger Telecommunications Reform Act that inspired an apparently fairly drunk John Perry Barlow to pen his now quite famous Declaration of the Independence of Cyberspace -- which is now regularly quoted. A snippet:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.
Of course, many have attacked its words, and these days, it -- like Stewart Brand's famed "information wants to be free" quote (which is much longer and more nuanced than most people think) -- is more often referenced by people who hold it up for the sake of mockery, and to talk about how times have changed, or need to change.

And yet, there are (and remain) some very important concepts in that "dashed off" statement, and Barlow still stands by them today, even as think tanks laugh factories like ITIF (who brought you brilliant ideas like "SOPA") pretend he no longer supports it.

The Declaration was not a statement of inevitability, but rather a notice that things are different online. And they are. We've seen this over and over again -- from back then and continuously up through today. So many of the disputes that we run into are about this very different nature of the internet from the physical world. Borders are not easily marked online, though people have tried. Artificial property restrictions are make much less sense when there is no physical scarcity, but digital abundance allows for anyone to simply make their own copy. Questions about jurisdiction and power remain. Self-organizing communities continue to show up. Some work better than others. Some work for a time and fail. Other experiments show up to replace it.

And, yes, of course, there have been many attempts to either move existing laws into the internet world, or to craft new ones for that purpose. At the same time, many big corporations have stepped in as well, where their own terms of service often act as a type of constitution. Some of these work better than others. The little tiny good law tucked deep into the horrible law of the CDA, has actually been a key element in protecting much of what Barlow spoke about.

But, as Barlow notes today, it takes a lot of work to keep the system moving in the right direction, and it's something we cannot and should not take for granted:
Barlow admits that what he describes as the “immune system” of the Internet isn’t exactly automatic. It requires effort on the part of activists like himself. “It wasn’t a slam dunk and it isn’t now. I wouldn’t have started the EFF and the Freedom of the Press Foundation” if it were, he says. But he nonetheless believes that there is a kind of inexorable direction of the Internet’s political influence toward individual liberty.
The technology and innovation continues to make things possible, but what happens next, depends on what people do with it.

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Posted on Techdirt - 8 February 2016 @ 10:37am

Moral Panics: Twitter Feels Compelled To Tell You It's Deleted Over 125,000 Terrorist Twitter Accounts

from the what-good-has-that-really-done? dept

It seems we've entered the next big moral panic: the fact that terrorists like ISIS use social media. It's a point of contention that keeps coming up, leading Presidential candidates to talk about stopping terrorists from using the internet. There was a whole big "summit" between White House officials and tech execs in which questions were raised about blocking ISIS from using social media. And, then, of course, you've even had some tech company execs support the idea.

And now, the inevitable followup on this is tech companies feeling the need to show just how "tough on terrorism" they are by highlighting how many people they've kicked off their service. Up first, Twitter. The company was just recently sued by a woman who lost her husband to an ISIS attack, in which she claims that Twitter is guilty of material support for terrorism, because it allowed ISIS to use Twitter to grow. And so now, Twitter feels the need to proudly highlight the removal of 125,000 terrorist accounts:

e condemn the use of Twitter to promote terrorism and the Twitter Rules make it clear that this type of behavior, or any violent threat, is not permitted on our service. As the nature of the terrorist threat has changed, so has our ongoing work in this area. Since the middle of 2015 alone, we’ve suspended over 125,000 accounts for threatening or promoting terrorist acts, primarily related to ISIS.

Our efforts have not stopped there. We have increased the size of the teams that review reports, reducing our response time significantly. We also look into other accounts similar to those reported and leverage proprietary spam-fighting tools to surface other potentially violating accounts for review by our agents. We have already seen results, including an increase in account suspensions and this type of activity shifting off of Twitter.
Every company, of course, has the right to determine who can and who cannot use their service, but is this really the best response? Hell, just recently there was a situation in which an ISIS leader used Twitter and other social media platforms to try to urge more Muslims to join ISIS, and it turned into a ton of Muslims totally mocking ISIS.
When you start deleting accounts, you lose out on those kinds of interactions, which I would imagine are ridiculously more powerful than shutting down accounts of terrorists who will simply open up a new one hours later.

On top of that, merely deleting those Twitter accounts actually hides some information that can be used to track down ISIS members and see what they're doing. Obviously no one wants to be seen "supporting" ISIS, but building a moral panic over the fact that they happen to use social media to spread idiotic ideas hardly seems helpful. If anything, it suggests that their messages are a lot more powerful than they really are. Shutting them down makes them think that what they're saying is having an impact. Mocking them and laughing at them (or even ignoring them) shows that it's having the opposite effect.

But, of course, for much of the media and many politicians, such nuance is not allowed. Instead the focus needs to be on shutting such accounts down. And that leads you to silly announcements like Twitter's from last week.

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Posted on Techdirt - 8 February 2016 @ 8:27am

20 Years Ago Today: The Most Important Law On The Internet Was Signed, Almost By Accident

from the give-thanks dept

The internet as we know it would be a very, very different place if 20 years ago today, President Clinton hadn't signed the Communications Decency Act. To be fair, nearly all of the CDA was a horrible mess that was actually a terrible idea for the internet. A key part of the bill was about "cleaning up" pornography on the internet. However, to "balance" that out, the bill included Section 230 -- added by two Congressmen in the House of Representatives: Ron Wyden and Chris Cox. They had pushed this clause as a separate bill, the Internet Freedom and Family Empowerment Act, but it didn't get enough traction. It was only when they attached it to the Communications Decency Act (which had passed the Senate without it), that it was able to move forward. And thus, 20 years ago today, when President Clinton signed the CDA, most of the attention was on the "stopping indecency" part, and very little on the "throw in" of Section 230. And yet, there's a strong argument that Section 230 may be one of the most important laws -- perhaps the most important -- passed in the past few decades.

As you hopefully already know, a year later, in Reno v. ACLU, the Supreme Court tossed out basically all of the CDA as unconstitutional. The only tidbit of the law that remained valid? You guessed it: Section 230. And, of course, it became the key law in enabling the internet to grow the way it did. It's been said in the past, fairly accurately, that no law contributed more to the growth of the internet than CDA 230, and that's because of a fairly simple and straightforward principle. CDA 230 simply said that an internet service is not liable for actions of its users. This meant that new websites and internet services didn't need to carefully monitor and track everything that every user did to make sure it wasn't violating a law. That meant the legal risks and liability for creating services that allowed the public to create all kinds of content went way down.

Without a robust Section 230, it's difficult to see many of the most popular platforms today existing. It's no surprise that soon after CDA 230 we saw the rise of blogging and social media -- and almost always coming from American companies. Both would be significantly more difficult without Section 230's protections. In fact, much of the push for Section 230 came in response to a horrible court case, Stratton Oakmont v. Prodigy, in which an internet bulletin board commenter attacked financial firm Stratton Oakmont, and its president, for apparently being involved in criminal and fraudulent activity. Stratton Oakmont -- now perhaps well known as the firm portrayed as doing all sorts of criminal and fraudulent things in the movie The Wolf of Wall Street -- sued Prodigy for the comment and won. The liability from such a ruling scared numerous online platforms, in particular because a key part of the ruling was that because Prodigy posted "guidelines" and removed posts with offensive language, it suddenly became a "publisher" of the content, and was liable for that content.

A key, and often overlooked, part of Section 230, is that it actually does encourage sites to take proactive measures to filter content, by noting that any kind of moderation or guidelines absolutely does not remove the protections of Section 230. As such, sites get to decide for themselves whether or not to moderate their content in any way, without facing the legal risk of suddenly being declared the publisher. Other countries have no such protections, leading to some dangerous rulings, and creating something akin to a "right to be forgotten" in some instances.

There have been numerous cases testing Section 230 over the years -- and the law has remained strong and in place -- though it is still being challenged to this day. The biggest and most important case was Zeran v. AOL, the first case testing Section 230, in which the court found that Section 230 was a powerful tool that kept sites from being held responsible for content posted by users.

Section 230 has been powerful in so many ways. It has both enabled and protected free speech online by letting companies set up platforms where people can speak openly. Without it, the internet would be much more limited as a platform for communicating to the public. As the 4th Circuit noted in its ruling in the Zeran case:

The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.
It has protected privacy, by making it clear that there was no duty for websites to monitor and track their users, to avoid any kind of liability. It has created incentives to create tremendous economic value, by making it clear that companies could be formed to enable public communications, such as blogging, forums and social media -- without being sued into bankruptcy over misuse. And it has actually enabled better moderation of platforms in not making them give up protections, if they choose how to moderate certain content.

It is difficult to express just how important Section 230 has been over the past 20 years other than to say that, without it, it's unlikely that you would be able to comment on Techdirt today. It's also unlikely that you'd have tools like Twitter or Facebook or Yelp or AirBnb. Any service that relies on public input owes a huge debt to Section 230, and it's quite incredible that it was basically included as an "add-on" that very few noticed when it was signed.

So, as we're hanging out here on the internet today, in a place that is alive only because of Section 230, please thank (now Senator) Ron Wyden in particular for his role in creating Section 230, and pay attention, because there are very powerful forces working right now to undermine Section 230 entirely. It's been a key driver of free expression and economic growth for the past 20 years, and it would be a shame to undermine that now.

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Posted on Techdirt - 5 February 2016 @ 7:39pm

NFL Edging Towards Claiming A Trademark On 'The Big Game' Again

from the yup,-again dept

We all know that the NFL doesn't want anyone to use the term "Super Bowl" without having paid the NFL first (and paid lots and lots of money). As we've pointed out in the past, most of this is pure bullshit. In most cases, people and companies totally can use the term "Super Bowl" but few people want to deal with any sort of legal fight, so they just don't.

What's even crazier though is how the NFL has tried to crack down on euphemisms as well. The most popular term that companies use instead of the Super Bowl is "The Big Game." And going back to 2007, we noted that the NFL wanted to trademark that too, even though it's not the one who came up with the term, nor does it really use it. A bunch of companies opposed the NFL's attempt, but over at the Pirated Thoughts blog, Michael Lee notes that the NFL is doing a few things that suggest it may want to trademark "The Big Game" again. At the very least, it's trying to block anyone else from trademarking it:

In late 2014, an individual in California filed a trademark registration for the BIG GAME DAME mark to cover athletic gear such as shirts, pants and jackets. The applicant claims that the mark is already in use and filed the “in use” specimen that can be seen below. The specimen is nothing more than a ratty plain white t-shirt that someone stuck a homemade label on from their old Brother P-Touch. Alright, this all seems a bit shady but we will put the skepticism to the side.

More germane than the earnestness of this trademark application, in December 2015 the mark was published for opposition. On January 26th, the NFL requested and was granted an extension of time to oppose issuance of the trademark. This is the usual first step that allows the parties time to try to work out a settlement, allows the opposer additional time to draft the opposition or even allows the opposer time to reevaluate its position and not even file an opposition in the first place.

This potential opposition is not an isolated incident. On the same day, the NFL was also granted an extension of time to oppose an entirely different mark by another clothing company, BIG GAME DAY ARE YOU READY! A month earlier, the NFL also requested an extension of time to oppose this same clothing company’s BIG GAME mark. Three potential trademark oppositions over the use of BIG GAME in a month’s time, where there is smoke there could be some fire.

In other words, the NFL is at least suggesting that it may have a right to "The Big Game" as well. It's not clear if the NFL thinks there will be less opposition this time, or that people won't notice. Or maybe it just doesn't care (which seems to be the standard operating procedure of the NFL these days). But, once again, such a move would be crazy. And, of course, it wouldn't even be necessary if the NFL hadn't been such a trademark extremist in the first place.

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Posted on Techdirt - 5 February 2016 @ 6:18pm

PayPal Continues To Drive People To Bitcoin And Other Solutions As It Starts Cutting Off VPNs & Open Internet Solutions

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

There's a fairly long history of Paypal being completely obnoxious in shutting down the accounts of basically anyone challenging the status quo in any way. Nearly all of our stories about Paypal follow a similar pattern:

See a pattern yet? So, given all that, it's hardly a surprise to find out that Paypal has cut off a VPN service, arguing that because it might possibly maybe be used for copyright infringement, Paypal won't be a part of it. No, this doesn't make any sense, but as you can see from the list above, it seems pretty clear that if there's even a whiff of concern or challenging legacy businesses and beliefs, Paypal will cut you off. Because it can.

And, yes, there now are many other solutions out there, but Paypal still remains one of the easiest and most popular payment systems, even as many other companies try to take that crown away. Still, increasingly shutting off services that help protect users and enable an open internet seems like a piss poor way for Paypal to thank the open internet that made it possible in the first place. It seems likely that the more Paypal cuts these kinds of services off, the more likely it is that alternative payment systems will be deployed. Paypal may not care. After all, it's been doing this for years, but sooner or later, it's going to realize that it's just been opening up a big opportunity for others.

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Posted on Techdirt - 5 February 2016 @ 2:06pm

Former USTR Comes Out Against TPP -- Though Not Necessarily For The Best Reasons

from the the-tpp-fight-continues dept

People who have worked for the USTR tend to pretty religiously support any and all new trade agreements, so it seems somewhat noteworthy that the former USTR, and now Senator, Rob Portman, has come out against the TPP agreement, saying that he doesn't think that it's a good deal. There are, of course, a number of caveats here that potentially make this at least slightly less of a big deal than it might otherwise be. Specifically:

  1. There's a pretty good chance he's doing this purely for political reasons. He's in a tight re-election campaign for the Senate, and his opponent has been quite opposed to basically any trade deal including the TPP -- and many Ohio residents (i.e. voters) believe (rightly or wrongly) that trade deals mean fewer manufacturing jobs. Portman was also a big proponent of pushing through "Trade Promotion Authority" or fast track, which was seen as a sort of proxy vote on TPP, because it would bind Congress's hands to just an up/down vote on the TPP, without any ability to push back on particular aspects of the agreement. And, Portman also made it clear he could change his mind if the TPP was "improved."
  2. Some of the reasons he's given seem to track with those of Senator Orrin Hatch, in complaining that the TPP doesn't go far enough in expanding intellectual property rights, mainly for big pharmaceutical companies (specifically data exclusivity rules around "biologics.")
So, it could certainly be argued that his speaking out against the TPP are for suspect reasons (and of suspect authenticity). Still, it is rather incredible that a former USTR would proactively say that they don't support such a major trade agreement, and highlights (at the very least) just how toxic the TPP has become with the voting public. And of course, that should raise some pretty serious questions. If the voting public doesn't support the TPP at all, why are we continuing to pursue it?

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Posted on Techdirt - 5 February 2016 @ 8:29am

It's 2016 And The EU Is Just Now Getting Ready To Decide If Hyperlinking Is Legal

from the because-wtf dept

Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there's some concern about this new case.

In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast.

Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result?

This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them.

But, of course, if the ruling says that such links are infringing, it could create a huge mess. Any link to unauthorized work could be deemed, by itself, to be infringing. And, the rule would apply to any link accessible in Europe, meaning it would impact people around the globe.
If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today. Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licenses are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to? If any of this were the case, social media, search, blogs, comment sections, online journalism could be faced with unmanageable legal liability.
Hopefully, the EU Court of Justice recognizes the ridiculousness that would result from such a ruling, but until this summer, we just won't know.

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Posted on Techdirt - 4 February 2016 @ 3:31pm

Congress Might Actually Be Moving Forward On Fixing Outdated Email Privacy Law!

from the didn't-see-that-coming dept

We've been talking about and asking for ECPA reform for many, many years, and it might finally be moving forward. ECPA is the Electronic Communications Privacy Act, which details how the government can get access to your electronic communications. The law was written in the early 1980s, and as you've probably noticed, we live in a very different world these days as it pertains to electronic communications. One key example: the law says that messages left on a server for more than 180 days are considered abandoned and can be searched without a warrant. That may have made some sense (though, not really) in a client-server era, where everyone downloaded their messages leading to them being deleted from a server, but it makes no sense at all in an era of cloud computing.

The main foes against updating ECPA have been government agencies that have investigatory powers, but not the ability to get a warrant -- mainly the SEC and the IRS, with the SEC being the real stumbling block. The SEC really liked the fact that it could snoop through emails without a warrant. So, even with massive support in Congress, ECPA reform never went anywhere.

So it was a bit surprising to folks this week to see Rep. Bob Goodlatte announce that the Judiciary Committee will now markup the ECPA reform bill, meaning that the bill is moving forward again. It's not entirely clear why it's happening now, but at the very least, it sounds like the SEC's constant protests may no longer be an obstacle. Hopefully it does move forward, and whatever results from the process leads to much stronger privacy protections on electronic communications, such as actually requiring a warrant, like the 4th Amendment says should happen.

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Posted on Techdirt - 4 February 2016 @ 12:41pm

Techdirt Reading List: Information Feudalism: Who Owns The Knowledge Economy?

from the restricting-information-flow-is-not-free-trade dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

As we discussed yesterday, the TPP was signed by all participating countries yesterday in New Zealand (though there's still a big ratification fight required to make it matter). We have lots of issues with the TPP, many of which we've raised over the years -- but the first issue that drew our attention to it was the intellectual property chapter. For years, we've questioned how it could possibly make sense to include intellectual property in a so-called "free trade" agreement, as intellectual property is the exact opposite of free trade. It's a government granted monopoly and restriction on the movement of information. And, yet, in the past two decades, basically any international trade agreement has included sections concerning intellectual property.

How did this happen? Well, that's the subject of the book on today's Techdirt Reading List: Information Feudalism: Who Owns the Knowledge Economy?, by Peter Drahos and John Braithwaite. The book, which came out over a decade ago, is a detailed accounting of how a bunch of legacy industry lobbyists -- including those from Hollywood, the pharmaceutical industry and the tech industry -- figured out how to convince trade officials around the globe that stronger intellectual property enforcement was a "free trade" issue. And they did so almost entirely behind closed doors, and without most people (even those who are focused on intellectual property issues) being fully aware of what was happening when it was happening.

These days, at least, there's a lot more awareness of what's happening, and activists and newer innovative tech companies (rather than old school legacy tech companies) are paying much closer attention. But the seeds of what these legacy industries put in place decades ago live on, dangerously, limiting innovation, keeping the cost of medicines and information artificially high, and laughing all the way to the bank while the public suffers over and over again. We owe it to ourselves to understand how this happened, and Information Feudalism is an enlightening, if frustrating, book for those who want to fight back and stop this dangerous process.

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Posted on Techdirt - 4 February 2016 @ 10:35am

Ridiculous Copyright Fight Still Keeping The Only Video Of The First Super Bowl Locked Up

from the because-copyright dept

We first wrote about this issue in 2014, but the only known video recording of the very first Super Bowl only exists because a fan taped the TV broadcast, back in 1967. Now, as we're about to have the 50th Super Bowl, the fight has not only continued, but according to a NY Times article, the fight has been getting nastier.

That NYT article also, for the first time, names the guy who has the tape: Troy Haupt, whose father went into his office and recorded (most) of the game, believing such a tape might be valuable some day. For the past few years, all anyone knew was that a lawyer named Steve Harwood claimed to represent an anonymous client whose father had taped the game. The game itself had been shown on both CBS and NBC, but back in those days, archiving stuff wasn't a big deal, and neither broadcaster kept a copy of the tape. It wasn't that long before people realized that might be a mistake and by then there was nothing left (as far as anyone knew), and many argued that it was one of the great "lost treasures."

It was only after a 2005 Sports Illustrated article that talked about the fact that the video was lost, that a friend had reminded Haupt of the video in his mother's attic. And, then, of course, came the copyright fight. The NFL (as it has a habit of doing) insisted that it, and it alone, held the copyright on the video, and Haupt would be infringing on its copyright if he tried to do anything with the video. Of course, Haupt and his lawyer still held the physical tape (which they had restored by the Paley Center, and stored in a place to keep it safe). And thus, we get to the difference between the copyright on the content, and the ownership of the physical item.

Haupt asked the NFL for $1 million for the tape -- the price that Sports Illustrated had estimated such a tape might be worth. The NFL offered $30,000. And then there was a stalemate, with neither side budging for years, and the NFL constantly threatening a copyright lawsuit should Haupt do anything with the tape. With the 50th anniversary, Haupt thought that maybe the NFL would finally be willing to deal... but instead, the NFL showed a totally different video of Super Bowl 1 that was not the video of the actual broadcast. Instead, they went out and found a large number of "clips" from other sources, and patched it all together, claiming it's the entire game, even if it appears really disjointed.

Apparently, now that the NFL (which makes billions) has its "tape," it wants to be even more ridiculously petty towards Haupt. According to the NY Times:

And last week, Haupt was angry about another turn in the dispute. CBS backed out of a plan to interview him for a Super Bowl pregame segment that would have used a few minutes from the game. It had agreed to pay him $25,000 and give him two tickets to the Super Bowl. A producer was preparing to watch a restored, digital copy of the game at the Paley Center. A crew was ready to go to Manteo. He was going to tell his story, and perhaps the league would listen.

“It was my right to tell my story, and they were paying me for it,” Haupt said.

But according to his lawyer, Steve Harwood, the deal collapsed when he was told that the N.F.L. had ordered CBS not to pay him.
Just when you think the NFL can't get more petty, it does exactly that.

Even more bizarre is that according to the NY Times, the NFL is insisting that Haupt isn't even allowed to sell the physical tape to someone else:
Haupt owns the recording but not its content, which belongs to the N.F.L. If the league refuses to buy it, he cannot sell the tapes to a third party, like CBS or a collector who would like to own a piece of sports history that was believed to be lost. He would like to persuade the league to sell the tapes jointly and donate some of the proceeds to their favorite charities.....
This is bullshit, and hopefully Haupt's lawyer has explained to both Haupt and the NFL that this is bullshit. The First Sale Doctrine still exists in the US, and it's the reason that you can sell a copy of a physical book or painting without first getting permission from the copyright holder. The First Sale Doctrine separates the copyright from the tangible thing. So he absolutely can sell the tape, despite what the league and the article claim. Updated update: So I had originally crossed out this paragraph and thought maybe I'd gone too far with it, after someone pointed out that First Sale might not apply, because the first copy wasn't legally purchased. But as a few others have commented (both below and in email), that may not matter. The question is whether the work was "lawfully made" under the Copyright Act... and we know that taping video off the TV is considered okay under the Supreme Court's Betamax ruling. Thus, the first sale right could very well apply here.

But, even then, the NFL seems to make bogus copyfraud arguments, saying that if he does sell the tape, and the contents leak somehow, Haupt would be liable for any such release.
But that is unlikely to happen. A letter from the league to Harwood last year provided a sharp warning to Haupt. “Since you have already indicated that your client is exploring opportunities for exploitation of the N.F.L.’s Super Bowl I copyrighted footage with yet-unidentified third parties,” Dolores DiBella, a league counsel, wrote, “please be aware that any resulting copyright infringement will be considered intentional, subjecting your client and those parties to injunctive relief and special damages, among other remedies.”
Again, it's not clear that this is true. The purchasing party may very well be liable for any infringement that results, but Haupt should be in the clear once it's sold, so long as there's no evidence that the sale was simply a sham to get the video released. Bizarrely, the NY Times quotes a copyright law professor claiming that the NFL is actually correct here:
The law favors the league, said Jodi Balsam, a professor at Brooklyn Law School.

“What the league technically has is a property right in the game information and they are the only ones who can profit from that,” said Balsam, a former N.F.L. lawyer.
As David Post notes at the Washington Post, Professor Balsam is either woefully misinformed or was misquoted, because of course, you don't get to copyright "game information" at all. Merely the specific expression which was the broadcast. In fact, cases revolving around data (such as scores) and factual information (such as names and stats) have come down quite clearly saying that the league does not own "game information."
And I respectfully suggest that Prof. Balsam gets her copyright law wrong (or was misquoted) when she says that “the law favors the league” and that “the league technically has is a property right in the game information and they are the only ones who can profit from that.” The league doesn’t have a property right in “the game information” at all. [There’s another case squarely on point that discredits this idea, too — NBA v. Motorola from the Second Circuit (105 F.3d 842, 1997)]. The “game information” — who won, who lost, how many passes Bart Starr threw, how many time Kansas City ran running plays, the sequence of plays that led to Green Bay’s final touchdown, etc. etc. etc.] — is not protected by copyright at all; only the broadcast is protected. And there is nothing in copyright law that says that only the NFL can “profit” from that — Haupt is entitled to get as much money from selling his copy as he can.
There's also a separate issue that I haven't seen reported anywhere, which seems like it should be relevant. The game was in 1967, which was under the 1909 Copyright Act, which required registration ("formalities") in order to get the copyright. And, while it's quite likely that CBS and NBC, who both broadcast the game, likely had a deal in place with the NFL where the NFL retained the copyright, there's a question of whether or not the NFL actually did register that copyright in the first place. It's entirely possible that, given the fact that no one actually thought it was worth keeping a copy of the video, that similarly no one thought it was worth it to register the copyright.

And that leads us to the final point. The NFL itself apparently couldn't have been bothered to keep a copy of the video of the game itself, which is what makes the resulting situation particularly egregious and ridiculous. To claim ownership over the thing that you totally neglected to the point that you thought no longer existed seems ridiculous. It also raises the question of whether the NFL abandoned the copyright, even if it did register it. Copyright abandonment is a defense that someone accused of infringement can make, arguing that the copyright holder deliberately abandoned the work (leaving it in the public domain). Abandonment can be tough to show, however, since it requires showing that the copyright holder intended to abandon the copyright and performed an "overt act" to make it happen. You can argue that the intent was there in the failure to keep a single damn copy -- but is that an overt act? Usually the "overt act" is seen as something like a declaration that the work is in the public domain. That obviously doesn't exist here.

But, still, hopefully in the end people can recognize just how messed up copyright law is that it would reach this kind of stalemate, in which the public is deprived of such a historic event.

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Posted on Techdirt - 3 February 2016 @ 3:33pm

Countries Sign The TPP... Whatever Happened To The 'Debate' We Were Promised Before Signing?

from the now-the-ratification-fight dept

About an hour ago, representatives from 12 different nations officially signed the Trans Pacific Partnership (TTP) agreement in Auckland, New Zealand. The date, February 4th (New Zealand time) is noteworthy, because it's 90 days after the official text was released. There was a 90 day clock that was required between releasing the text and before the US could actually sign onto the agreement. The stated purpose of this 90 day clock was in order to allow "debate" about the agreement. Remember, the entire agreement was negotiated in secret, with US officials treating the text of the document as if it were a national security secret (unless you were an industry lobbyist, of course). So as a nod to pretend "transparency" there was a promise that nothing would be signed for 90 days after the text was actually released.

So... uh... what happened to that "debate"? It didn't happen at all. The TPP was barely mentioned at all by the administration in the last 90 days. Even during the State of the Union, Obama breezed past the TPP with a quick comment, even though it's supposedly a defining part of his "legacy." But there's been no debate. Because there was never any intent for an actual debate. The 90 day clock was just something that was put into the process so that the USTR and the White House could pretend that there was more "transparency" and that they wouldn't sign the agreement until after it had been looked at and understood by the public.

Of course, the signing is a totally meaningless bit of theater. The real fight is over ratification. The various countries need to ratify the TPP for the agreement to go into effect. Technically, the TPP will enter into force 60 days after all signers ratify it... or, if that doesn't happen, within two years if at least six of the 12 participant countries ratify it and those six countries account for 85% of the combined gross domestic product of the 12 countries. Got that? In short, this means that if the US doesn't ratify it, the TPP is effectively dead. The US needs a majority of both houses of Congress to approve it, similar to a typical bill. And that's no sure thing right now. Unfortunately, that's mainly because a group of our elected officials are upset that the TPP doesn't go far enough in helping big businesses block competition, but it's still worth following.

Inevitably, there will be some debate during the ratification process, though there are enough rumors suggesting that no one really wants to do it until after the Presidential election, because people running for President don't want to reveal that they're happy to sell out the public's interest to support a legacy business lobbyist agenda. But, even that debate will likely be fairly limited and almost certainly will avoid the real issues, and real problems, with the TPP.

Either way, today's symbolic signing should really be an exclamation point on the near total lack of transparency and debate in this process. The 90 day window was a perfect opportunity to have an actual discussion about what's in the TPP and why there are problems with it, but the administration showed absolutely no interest in doing so. And why should it? It already got the deal it wanted behind closed doors. But, at least it can pretend it used these 90 days to be "transparent."

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Posted on Techdirt - 3 February 2016 @ 10:31am

Publicity Rights For A Photobombing Horse? Owner Demands Cut Of Photo Prize

from the ownership-society dept

We've written many, many words on the ridiculousness of publicity rights, and how they're frequently abused to stifle perfectly reasonable activities. But this latest example really takes it up a notch. The owner of a horse in the UK is apparently demanding some of the prize a man won in a "selfie" contest, because the horse made a key "photobombing" appearance in the background, that likely contributed to the victory:

That photo was taken by the 3 year old kid in the picture, Jacob Bellis, and that's his father, David, holding him. Nice photo! The horse in the background is named Betty, and is owned by Nicola Mitchell, who sounds like a person who perhaps needs to calm down a bit. From The Guardian:

Mitchell said: “I was really annoyed to hear he had won a £2,000 holiday and had used a picture of our horse without our permission. He should have asked for our consent. There should be some token gesture as it is our horse that has really won them the holiday,” she said.

Mitchell added: “I didn’t even know that this competition was on. If I had known about it we would have entered and could have won as Betty is always sticking out her tongue.”

There's plenty to comment on here. First, as you can see, the reward was a holiday trip, and not cash, though apparently there was some confusion over that. So it's not like it's easy to "split." Apparently Mitchell first demanded "half" of the prize. Second, (and importantly) you don't need permission to photograph someone's horse, especially when done from a public path. So the whole "without our permission" thing is complete nonsense. A token gesture might be a nice thing to do, but it's not clear the best way to seek a "token gesture" is to angrily demand half of the prize. Perhaps a friendlier "Hey, that's my horse, and that's awesome!" would have been a better approach that would have made everyone happy, leading the Bellises to think about maybe giving something nice in return. Like, a treat for the horse or something.

Finally, the whole "If I had known about it we would have entered and could have won" bullshit, the response is but you didn't. So stop whining. Perhaps next time such a contest is run you'll be paying attention and you can answer. The whole response smacks of serious sour grapes.

Thankfully, the Guardian quotes a lawyer who agrees that Mitchell has no legal basis to complain. Of course, not too long ago, we thought the same thing about a monkey in a selfie, and then... PETA stepped in. So far its attempt to extend copyright law to monkeys has flopped, but perhaps its next attempt will be extending publicity rights to horses. I imagine that will fare similarly poorly.

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Posted on Techdirt - 3 February 2016 @ 9:33am

Ares Rights Gets EFF Lawyer Suspended From Twitter For Posting Mild Criticism

from the really-now? dept

We've written a few times now (including just recently) about the Spanish firm Ares Rights, whose sole purpose and job in this world appears to be to abuse any and all systems to take down content to try to hide content that either Ares Rights or its clients dislike. Mainly, the takedowns seem to focus on the interests of what appears to be its main client, the government of Ecuador, and its main tool is totally bogus DMCA notices, that too many companies follow without looking at the details.

However, Ares Rights also has a history of abusing takedowns to try to hide negative information about itself. And apparently, it will abuse other tools as well, such as Twitter's policy on shutting down accounts for abuse.

Daniel Nazer is a lawyer for EFF (focusing mostly on patent issues). Last week, he found out that his Twitter account had been shut down. Eventually, he was allowed back into the account, but was told he could only reopen the account if he agreed to delete a tweet. Which tweet? One in which he referenced Ares Rights and linked to an email exchange he'd had with the head of Ares Rights, Jon Palma. As background, Nazer explained how, back in 2014, he had tweeted negatively about Ares Rights, (accurately) calling what the company engages in as "copyfraud." Palma, apparently misunderstood Nazer's tweet, thinking that it was in support of Ares Rights, and emailed Daniel asking for business advice. Nazer posted the content of that email:

There are all sorts of levels of ridiculousness here, from Palma misunderstanding Nazer's tweet, to the fact that he filed an abuse complaint with Twitter, to Twitter's decision to disable Nazer's account. Someone from Twitter who saw me discussing this (on Twitter, naturally), reached out to point to Twitter's policy on private information posted on Twitter. This is the policy that's supposed to allow Twitter to shut down accounts of people doxxing someone, posting credit cards, harassing people, or posting revenge porn or whatnot. And it seems likely that the folks at Twitter would argue that Nazer's original screenshot of the email revealed Palma's "non-public" email address. If that's the case, even then it seems like a stretch. In context, it's clearly not for the sake of "doxxing" or harassing Palma, and it's unlikely that anyone actually looked at the original screenshot and decided to angrily email Palma.

Twitter claims that it "may consider the context and nature of the information posted," but it's hard to see how that was the case this time. In the end, things worked out, and Ares Rights, yet again, looks like a horrible, censorious, thin-skinned bully. But it's a bit disappointing that Twitter was willing to help the company along in that endeavor.

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Posted on Techdirt - 2 February 2016 @ 11:44am

EU And US Come To 'Agreement' On Safe Harbor, But If It Doesn't Stop Mass Surveillance, It Won't Fly

from the separate-out-the-issues dept

Back in October, we noted that it was a really big deal that the European Court of Justice had said that the EU/US Safe Harbor framework violated data protection rules, because it had become clear that the NSA was scooping up lots of the data. The issue, if you're not aware of it, is that under the safe harbor framework, US internet companies could have European customers and users, with their information and data stored on US servers. Without the safe harbor framework, there are at least some cases where many companies would be forced to set up separate data centers in Europe, and make sure European information is kept there.

Many privacy activists are actually supportive of keeping the data in Europe altogether, but I still think that would be a disaster for lots of internet companies and services -- especially smaller ones. The big guys -- Google, Facebook, Microsoft, Yahoo, Twitter, etc. -- can afford to have separate European data centers. A small company -- like Techdirt -- cannot. Requiring separate data centers and careful separation of the data would ensure less competition and fewer startups to take on the big guys. That's a problem. Beyond that, having those separate data centers could actually lead to even less privacy in the long run, because having many jurisdictions in which data is kept means that, inevitably, some of those jurisdictions will fall into states that have even worse surveillance and fewer data protections -- and also leaves open the opportunity for different data center setups, which may lead to more vulnerabilities. Remember, when the NSA broke into Google and Yahoo's datacenters, they were the ones outside the US, which may have had weaker security. And, despite many Europeans not wishing to believe this, many European countries have many fewer restrictions on the kind of surveillance their intelligence agencies are able to do on local data and citizens.

The real issue here is mass surveillance overall. The only real way to fix this issue is to stop mass surveillance and go back to saying that intelligence agencies and law enforcement need to go back to doing targeted surveillance using warrants and true oversight. But, instead, the EU and the US keep trying to paper over this by coming up with a new agreement. That agreement was supposed to have been concluded by a fake "deadline" set for yesterday, but after missing that and claiming that progress had been made on a new agreement, a new deal was finally announced a few hours ago, with the ridiculous name "The EU-US Privacy Shield."

Here's the key part of the announcement:

  • Strong obligations on companies handling Europeans' personal data and robust enforcement: U.S. companies wishing to import personal data from Europe will need to commit to robust obligations on how personal data is processed and individual rights are guaranteed. The Department of Commerce will monitor that companies publish their commitments, which makes them enforceable under U.S. law by the US. Federal Trade Commission. In addition, any company handling human resources data from Europe has to commit to comply with decisions by European DPAs.
  • Clear safeguards and transparency obligations on U.S. government access: For the first time, the US has given the EU written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms. These exceptions must be used only to the extent necessary and proportionate. The U.S. has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement. To regularly monitor the functioning of the arrangement there will be an annual joint review, which will also include the issue of national security access. The European Commission and the U.S. Department of Commerce will conduct the review and invite national intelligence experts from the U.S. and European Data Protection Authorities to it.
  • Effective protection of EU citizens' rights with several redress possibilities: Any citizen who considers that their data has been misused under the new arrangement will have several redress possibilities. Companies have deadlines to reply to complaints. European DPAs can refer complaints to the Department of Commerce and the Federal Trade Commission. In addition, Alternative Dispute resolution will be free of charge. For complaints on possible access by national intelligence authorities, a new Ombudsperson will be created.
The key thing here? The claim that the US "has ruled out indiscriminate mass surveillance on the personal data transferred to the US." I'm curious about how much bullshit the NSA will be able to sneak under "indiscriminate." I'm also curious as to what kind of real oversight there will be. The EU Commission and the Department of Commerce will be able to review, but we all know how good the NSA is at hiding what it's actually doing from oversight bodies. Finally, the "ombudsperson" only matters if they have actual power, and that seems incredibly unlikely.

And as Max Schrems, who brought the original case that took down the safe harbors, is saying (over and over again), as it stands right now, it looks like this new deal will lose again in the EU courts.

And that brings us back to the underlying point. The effort to kill off the safe harbor agreement wasn't really about the safe harbor agreement at all, but to force the hand of the US government (and hopefully European governments as well) to recognize that they need to stop doing mass surveillance. The claim above about no indiscriminate mass surveillance pays lip service to that idea, but there needs to be some real and concrete change to make that happen. And that's going to take more than an "exchange of letters" between the EU and the US, as the basis of this deal. It's going to need actual surveillance reform, not just the "surveillance reform lite" we saw with the USA FREEDOM Act.

Again, I think having the ability to transfer data from the EU to the US is hugely important -- which not everyone agrees with. Fragmenting the internet by requiring that data stays in certain countries seems as silly to me as geoblocking content. But the underlying issue here is not about where the data is stored -- it's about mass surveillance. Focusing the agreement on how to allow data transfers without actually tackling how to stop mass surveillance is inevitably a fake solution.

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