Posted on Techdirt - 21 October 2016 @ 1:00pm
A few weeks back, we wrote about the arrest of Harold Martin, an NSA contractor working at Booz Allen, for apparently taking "highly classified information" from the NSA and storing it electronically and physically in his home. There were a lot of questions about whether or not Martin was connected to the Shadow Brokers release of NSA hacking tools, though as more info comes out, it sounds like perhaps Martin was just found because of an investigation into Shadow Brokers, but not because he was connected to them. Soon after the arrest was made public (after being kept sealed for a little over a month), reports came out suggesting that Martin was basically a digital hoarder, but not a leaker (or a whistleblower).
The latest filing by the government in the case gives you a sense of just how much hoarding was done. Basically, it sounds like Martin has been taking a variety of digital and paper files home for two decades or so. There's a lot of stuff.
The Defendant stole from the government and hid at his residence and in his vehicle a vast amount of irreplaceable classified information. His thefts involved classified government materials that were dated from 1996 through 2016, spanning two decades’ worth of extremely sensitive information.
Now, it may be that he did the taking more recently and just took old documents, but that 1996 date coincides with when he first got access to such material:
The Defendant had access to classified information, including Top Secret information, beginning in 1996. His access to classified information began during his service in the U.S. Naval Reserves, and continued as he worked for seven different private government contracting companies. Access to classified information was critical to the Defendant’s employment in his field. He worked on highly classified, specialized projects and was entrusted with access to government computer systems, programs and information.
The government estimates 50 terabytes of data, but admits it's still going through all of it to figure out what is in there.
During execution of the search warrants, investigators seized thousands of pages of documents and dozens of computers and other digital storage devices and media containing, conservatively, fifty terabytes of information....
A conservative estimate of the volume of the digital information seized from the Defendant is approximately 50,000 gigabytes. This information must be fully reviewed by appropriate authorities to determine its source and classification level, as well as the extent to which it
constitutes “national defense information.” The investigation into the Defendant’s unlawful activities is ongoing, including review of the stolen materials by appropriate authorities. The government anticipates that much of this material will be determined to be national defense information that the government goes to great expense to protect.
Of course, some in the press are claiming, incorrectly, that this means Martin took 500 million pages of records and secrets
, but we don't know that yet. The DOJ admits it's still going through everything, and has no idea how much of it is secret (or even how much of it is from the government).
Martin, at the very least, does appear to have been... kind of careless with some of this stuff:
For example, the search of the Defendant’s car revealed a printed email chain marked as “Top Secret” and containing highly sensitive information. The document appears to have been printed by the Defendant from an official government account. On the back of the document are handwritten notes describing the NSA’s classified computer infrastructure and detailed descriptions of classified technical operations. The handwritten notes also include descriptions of the most basic concepts associated with classified operations, as if the notes were intended for an audience outside of the Intelligence Community unfamiliar with the details of its operations.
Among the many other classified documents found in the Defendant’s possession was a document marked as “Top Secret/Sensitive Compartmented Information” (“TS/SCI”) regarding specific operational plans against a known enemy of the United States and its allies. In addition to the classification markings, the top of the document reads “THIS CONOP CONTAINS INFORMATION CONCERNING EXTREMELY SENSITIVE U.S. PLANNING AND OPERATIONS THAT WILL BE DISCUSSED AND DISSEMINATED ONLY ON AN ABSOLUTE NEED TO KNOW BASIS. EXTREME OPSEC PRECAUTIONS MUST BE TAKEN.” The Defendant was not directly involved in this operation and had no need to know about its specifics or to possess this document.
Of course, the usual caveat does apply: this is the DOJ's side of the story, and history tells us they have a habit of massively inflating things or misrepresenting things in these kinds of cases. That includes over-classification or other exaggerations about how serious, important, or secret certain information truly is. So, take the DOJ's claims with at least some grain of salt here. It will certainly be interesting to see how Martin responds to all of this.
The other interesting, and potentially troubling part, is that it appears the DOJ is moving to charge Martin under the Espionage Act
. When the initial charge sheet came out, some people noticed that it didn't include Espionage Act charges, which even Ed Snowden pointed out was a "noteworthy absence."
At the very least, it implied no distribution by Martin.
However, the latest filing makes it clear the lack of Espionage Act charges was a temporary thing that the DOJ is planning to correct soon. But here's the really crazy bit: the government is arguing that merely collecting this info is an Espionage Act violation, even without distributing it.
The improper retention and transmission of national defense information is prohibited under the Espionage Act. See, e.g., 18 U.S.C. § 793 (Gathering, Transmitting or Losing Defense Information). Information about sources and methods of the Intelligence Community, such as the information in the documents described above, and in the criminal complaint, is classic national defense information. See Gorin v. United States, 312 U.S. 19, 28 (1941) (information relating to the national defense is “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”). In this case, when an indictment or information is filed, the government anticipates that the charges will include violations of the Espionage Act, an offense that carries significantly higher statutory penalties and advisory guideline ranges than the charges listed in the complaint.
You can check out 18 USC 793
yourself. It's noteworthy that most of it requires intent or belief that the information is being used to harm the US, or distribution, but it's likely that the DOJ is leaning hard on section (f):
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer
Still... this once again seems like a stretch under the Espionage Act. If it's true that Martin was just hoarding the information (even carelessly), it's overkill to bust out the Espionage Act. If true, it would be stupid, but it's clearly not spying for the purpose of helping a foreign nation or anything.
One final thing, though. Fifty terabytes is a shitload of information. How the hell did the NSA not notice
this over the past two decades? Even assuming (which is a pretty bad assumption) that the NSA was not as good at protecting its secrets prior to the Snowden leaks, once Snowden's leak was public, how the hell did the NSA still not notice what Martin had done (or, potentially, was continuing to do)? If anything, this raises a hell of a lot more questions about the NSA's own security practices than anything about Martin himself.
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Posted on Techdirt - 21 October 2016 @ 11:44am
Welp, it looks like another bad day for Team Prenda. The law firm that went around uploading its own porn films and then shaking down people on the internet has had a bad few years in terms of courts blasting them for abusing the court system and ordering them to pay up for all sorts of awful things. Every few weeks it seems like we read about another loss for John Steele and Paul Hansmeier (the third "partner" in this mess, Paul Duffy, passed away). The latest is not only a pretty big hit, it's also a complete "own goal" by Team Prenda. This one wasn't in one of their crappy shakedown lawsuits where a defendant hit back. No, this was in the case where Prenda tried to sue all of its critics for defamation in both Illinois and Florida. The Florida case, filed by John Steele, was quickly dismissed once Steele realized it broke all kinds of rules. But the Illinois cases moved forward. There was some bouncing around between state and federal court, before the case was dismissed and some sanctions were added.
There's been some back and forth since then, but after the defendants, Alan Cooper and Paul Godfread, filed an anti-SLAPP against Prenda, and asked for sanctions, the court has now said that Prenda needs to pay up big time. You may recall that Cooper was a guy that Steele had take care of his vacation home in Minnesota, but whose signature Steele then forged on copyright transfer documents. Godfread was Cooper's lawyer, who brought all this out. The lawsuit against them (and a bunch of John Does) was a complete joke from the beginning. And despite Duffy insisting it had nothing whatsoever to do with Cooper saying that Prenda had forged his signature, that's what it was obviously about. Anyway, like so many Prenda things, this one backfired in a big, big way. To the tune of $674,206.94.
There are the original sanctions of $11,758.20 we mentioned above. Then there are attorneys' costs and fees for $162,448.74. And, finally, for good measure, Judge John Darrah tacked on $500,000 in punitive damages. Of course, whether or not Cooper and Goodfread will actually get paid is an open question. Duffy, as you may recall, is dead. And the other major members of Team Prenda, John Steele and Paul Hansmeier have been hit left and right with other judgments. Hansmeier declared bankruptcy and recently lost his law license. Steele's facing disciplinary action in Illinois, last we checked, and of course, lots of people are still waiting for the FBI. So, it's unclear how much they'll actually collect, but it's another case where Team Prenda's own hubris backfired amazingly. As Paul Hansmeier liked to say, "welcome to the big leagues."
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Posted on Techdirt - 21 October 2016 @ 10:46am
Last month, we wrote about Bruce Schneier's warning that certain unknown parties were carefully testing ways to take down the internet. They were doing carefully configured DDoS attacks, testing core internet infrastructure, focusing on key DNS servers. And, of course, we've also been talking about the rise of truly massive DDoS attacks, thanks to poorly secured Internet of Things (IoT) devices, and ancient, unpatched bugs.
That all came to a head this morning when large chunks of the internet went down for about two hours, thanks to a massive DDoS attack targeting managed DNS provider Dyn. Most of the down sites are back (I'm still having trouble reaching Twitter), but it was pretty widespread, and lots of big name sites all went down. Just check out this screenshot from Downdetector showing the outages on a bunch of sites:
You'll see not all of them have downtime (and the big ISPs, as always, show lots of complaints about downtimes), but a ton of those sites show a giant spike in downtime for a few hours.
So, once again, we'd like to point out that this is as problem that the internet community needs to start solving now. There's been a theoretical threat for a while, but it's no longer so theoretical. Yes, some people point out that this is a difficult thing to deal with. If you're pointing people to websites, even if we were to move to a more distributed system, there are almost always some kinds of chokepoints, and those with malicious intent will always, eventually, target those chokepoints. But there has to be a better way -- because if there isn't, this kind of thing is going to become a lot worse.
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Posted on Techdirt - 21 October 2016 @ 9:31am
See the update at the end...
Actor James Woods is an asshole. Let's just put that front and center. As you may recall, a little over a year ago, Woods sued a random Twitter user who went by the pseudonym "Abe List." "List" frequently mocked Woods, including calling him "clown-boy" and a "cocaine addict." Woods then sued for defamation, demanding $10 million, and tried to unmask List. This was ridiculous for any number of reasons, not the least of which is calling much more attention to what a thin-skinned jackass Woods is from anonymous Twitter users. But, more importantly, such hyperbolic statements in an internet forum are not defamation -- rhetorical hyperbole certainly doesn't meet the standard for defamation of a public figure. On top of that, trying to unmask an anonymous speaker is really, really sketchy, and there's a very high bar.
Oh, and did we mention that Woods himself has a long history of similar rhetorical hyperbole on Twitter, including making statements about others smoking crack?
California, of course, has a strong anti-SLAPP law, and Abe List, with the help of lawyers Lisa Bloom and Ken "Popehat" White, sought to use it to get the case kicked out. While the judge initially agreed
that Woods' lawsuit was a SLAPP suit, he eventually changed his mind
, and said that Woods could find out who Abe List really is. List appealed to California's 2nd District Court of Appeal soon after that ruling earlier this year. Since then the case had moved forward with both sides filing opening briefs.
However, apparently "List" just died
. There are no details, but List passed away -- and with it, the case is over. The court docket
shows that on Thursday, his lawyers filed for the case to be dismissed based on List's death and the court quickly dismissed the case and closed it. No matter what you think of anything, this is not a great situation. Someone died
And total asshole James Woods decided to not just gloat about it, but to rub everyone's face in it. First, he pretended that the dismissal was because he was going to win the case:
That's so obnoxious that you might even overlook the fact that Woods here flat out admits he filed a SLAPP lawsuit.
Bloom, quite reasonably offended, pointed out that her pseudononymous client had died
and it's pretty obnoxious to gloat over a default victory like that.
Just to put an exclamation point on what a total and complete jackass he is, Woods responded to others pointing out that the client died by gleefully celebrating his death and hoping it was "in agony."
He doubled down on that with another person, talking about how he'll follow people "to the bowels of hell."
That's sickening. Like, literally. I feel ill. What kind of person would celebrate anyone's death? Even someone they dislike? I have no idea if James Woods is a "cocaine addict" but he sure is an extreme asshole.
Oh, and kinda creepy too.
I asked Ken White if he had anything to say about this and he replied:
It was a privilege to represent Abe Doe. He was passionate about many issues and a fierce and incisive debater, not afraid to mix it up with his own attorney. He challenged me just as easily as he challenged others. I was proud to help him fight a contemptible censorious lawsuit, and am very sad about his passing.
: And, of course, James Woods has now deleted many of those tweets I have above, but added a new one, attacking the lawyer, Lisa Bloom, for mentioning Abe's death. You know, the one he was gloating over.
: According to Eriq Gardner at THResq, despite Abe's death, Woods and his lawyers are going to continue the case
to try to unmask who Abe really was.
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Posted on Techdirt - 21 October 2016 @ 8:27am
And it's time for yet another story of copyright being used for out and out censorship. Remember Geofeedia? That's the creepy company that was selling its services to law enforcement agencies and school districts promising to spy on social media feeds to let law enforcement/schools know when people are planning bad stuff. After a big ACLU investigative report, basically all the major social media companies cut ties with Geofeedia, claiming that it was violating their terms of service. I'd imagine that the various law enforcement agencies and school districts who paid tens of thousands of dollars for this data may be asking for their money back.
So what does Geofeedia do? Well, for starters, it abuses the DMCA to try to take down information. The Daily Dot's Dell Cameron had actually written about how the Denver police spent $30k on Geofeedia back in September, a few weeks before the ACLU report dropped (nice scoop and great timing). Cameron then followed up with a detailed story following the ACLU report as well, noting that there were still plenty of other Geofeedia competitors on the market. At the end of that post, Cameron included a brochure that Geofeedia had apparently sent to a police department last year. But you can't see it now, because (yup) Geofeedia issued a DMCA takedown to Scribd, the company that was hosting it.
Cameron tweeted about this as well
, (correctly!) wondering why Scribd would fold over such a bogus copyright takedown.
Now, sure, Geofeedia likely has a copyright on its brochure. But this is clearly a case of fair use. It's posted for reporting purposes, not competitive ones, on a topic of interest. It's not harming the market for the copyright in the brochure (which has no market). This is just ridiculous, both on the part of Geofeedia, and on Scribd for caving.
And it's pointless too, because it just calls more attention to how ridiculous Geofeedia is. Of all the things it should be focusing on right now, trying to take down a sales brochure in an article should be pretty low on its priority list. And if the idea was to get Daily Dot and Cameron to stop reporting on the company, well, that's failed too. Cameron has a new article out
about how Geofeedia's stalking system was marketed to public schools as well.
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Posted on Techdirt - 20 October 2016 @ 3:55pm
Going back nearly a decade, we've been talking about the ridiculousness of Congress refusing to publicly release reports from the Congressional Research Service (CRS). As we've discussed many times, CRS is an in-house think tank for Congress that is both famously non-partisan and actually really good at what they do. CRS reports tend to be really useful and highly credible (which is part of the reason why Congress isn't a fan of letting them out into the public). Of course, as works of the federal government, CRS reports are in the public domain, but the way it's always worked is that the reports are released only to members of Congress. These include both general reports on topics that are released to every member of Congress, or specific research tasked by a member for the CRS to investigate and create a new report. The members who receive the reports are able to release them to the public, and some do, but the vast majority of CRS work remains hidden from public view. For the most part, both CRS and Congress have resisted any attempt to change this. Going back decades, they've put together a mostly ridiculous list of reasons opposing plans to more widely distribute CRS reports.
Some members of Congress keep introducing bills to make these public domain CRS reports actually available to the public. We've written about such attempts in 2011, 2012, 2015 and earlier this year. And each time they get shot down, often for completely ridiculous reasons, including the belief that making these reports public will somehow hurt CRS's ability to continue to do good, non-partisan research.
At times, different organizations and groups have taken up the cause themselves. Back in 2009, Wikileaks hit the jackpot and released nearly 7,000 such CRS reports. Steve Aftergood at the Federation of American Scientists has been posting CRS reports to a public archive for quite some time. There's also Antoine McGrath's CRSReports.com and some other sites that all create archives of CRS reports that they've been able to collect from various sources.
But earlier this week, there was a new entrant: EveryCRSReport.com. Unlike basically all of the other aggregators of CRS reports that collect released reports and aggregate them, it appears that EveryCRSReport basically has teamed up with members of Congress who have access to a massive stash of CRS reports loaded onto the Congressional intranet, all of which have been released via the site -- and it appears that the site is automatically updated, suggesting that the still nameless Congressional partners have set up a way to continually feed in new reports. To avoid public pressure or harassment (one of the core reasons used by Congress and CRS to reject proposals to open up the content), the site removes the names and contact info of the CRS staffers who create the reports. The reports that are available are not just in unsearchable PDFs, but they're fully HTML and fully searchable.
Here are a few reports that folks around here might find interesting: an analysis of ACTA and a recent deep dive into the net neutrality debate. Here's an interesting one on promoting internet freedom globally. Since the peaceful transition of presidential administrations has suddenly become a hot topic (not for good reasons), here's a CRS report on that from just last month. It's also good to see that they have a recently updated list of cybersecurity reports and research for Congressional staffers to dig into (though it's unclear how many actually do so).
And, yes, of course, there's one on the "going dark" encryption debate, in which the CRS report rightly notes that backdoors are a bad idea, according to basically all experts:
In considering future legislation on or regulation of encrypted systems and communications, the issue of exceptional access has been raised: is it possible to create a system with sufficiently narrow and protected access points that these points can only be entered by authorized entities and not exploited by others? Experts have generally responded, no. For instance, one group of computer scientists and security experts contends that requiring exceptional access "will open doors through which criminals and malicious nation-states can attack the very individuals law enforcement seeks to defend." As was the case during the crypto wars of the 1990s, new technology (the Clipper Chip) was introduced that was intended to only allow access to certain communications under specified conditions. Researchers were soon able to expose vulnerabilities in the proposed system, thus halting the implementation of the Clipper Chip.
This is a really awesome resource -- it's a goldmine of useful information, and very thorough, careful research. I've only just started digging in.
The whole thing was put together by Demand Progress* and the Congressional Data Coalition, which is a project created by Demand Progress and R Street (which our think tank, the Copia Institute, is a member of). It will be interesting to see how (if?) Congress and the CRS react to this. Hopefully, they don't freak out, and seek to shut down the various sources of this material. This really is a fantastic resource of carefully done, thorough research on a variety of topics, all technically in the public domain. Check it out.
Hopefully it will help both the rest of Congress and
CRS to recognize that actually making publicly funded research public is not such a bad thing. The site itself was put together by Dan Schuman, who used to work for CRS, and he's actually written up a fascinating blog post about why he did it
and why the internal culture at CRS, against such public releases, is wrong, but endemic to the organization (he didn't begin questioning it himself until after he left):
Over time, I came to realize that the policy concerning public access to CRS reports was counterproductive. Members of Congress could get the reports. Lobbyists and special interests could get the reports from Congress or from private vendors for a fee. Former congressional staff could ask their friends on the hill for a copy. But the general public, unless they knew a report existed, really did not have access.
And that’s too bad. CRS reports are written for intelligent people who are not necessarily policy experts. In a world that’s awash with 5 second YouTube ads, horse race political coverage, and the endless screaming and preening of political figures, these reports are a good way to start to understand an issue.
But he also notes that there are problems with CRS -- some of which CRS blames on the fact that reports are being released to the public -- including the fact that the reports have become "even-handed to a fault" to avoid pissing off Congress itself in talking down a bad idea. While some of this may also be attributed to worries about reports going public, this seems kind of silly. This is good
taxpayer funded research that's in the public domain. If Congress can learn from it, so can the public:
CRS used to be a very different agency. It used to provide unvarnished advice for members of Congress on the crucial issues of the day. But over time, and especially during the 1990s, the mode of analysis changed to a description of issues, moving away from an evaluation of the strengths and weaknesses of various courses of action. I don’t mean to overstate this, and there are many examples still of prescient analysis, but there was a real change in the way CRS did its work, in large part because of existential concerns. In short, CRS was concerned about irritating its congressional masters by attacking a pet project or cherished belief. The old-timers still had great latitude, but the agency became sclerotic.
Part of this calcification included a fear of public access to the reports. At one time, CRS had published a newsletter about its latest research. And now, while its employees still testify before Congress, they were discouraged and then generally prohibited from sharing their work even with their academic peers. Agency staff grew more insulated and isolated.
But on top of that, recognizing that there are benefits to this research being public, hopefully means that CRS can get beyond just giving out "even handed to a fault" research, and can actually get back to making real recommendations. Over the years, we've discussed the ridiculous move by Newt Gingrich a couple decades ago to kill off
the Office of Technology Assessment, which actually helped Congress understand complex technological issues in a non-partisan way. A functioning CRS could do the same thing and help put an end to stupid technology debates that often feature clueless arguments on all sides. CRS shouldn't fear this role, nor should it fear its research being public. It's a great resource and having it public is great for everyone.
* I'm on the board of Demand Progress, but had no idea about this particular project from them, and, in fact, heard about it from someone else entirely...
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Posted on Techdirt - 20 October 2016 @ 1:02pm
Post sponsored by
We've teamed up with Namecheap and the EFF to promote Internet Privacy Week and continue the fight to protect your privacy online. Show your support by signing and sharing the new Internet Privacy Bill of Rights.
I've talked before about how privacy is not a "thing," it's a tradeoff. The idea of "perfect" privacy makes no sense, because people reveal all sorts of stuff about themselves all the time because the tradeoff is worth it. For example, just walking out of your house to go to the grocery store is a tradeoff. You give up some amount of privacy (someone can see you leaving your house, others can see what you're buying), because we think it's worth that minimal loss of privacy to get food. But it's an individual tradeoff based on our own individual decision making -- people who are famous celebrities or hiding from someone who wants to kill them may view the tradeoffs differently. That's why it always bothers me a little when people focus on privacy as if it's a thing, rather than looking at the cost-benefit tradeoffs that each individual needs to make.
But a big reason why privacy debates concerning internet services today are such a big problem is that the tradeoffs aren't as clear or as explicit as they should be. The reason people get upset about privacy issues on internet services isn't so much that they don't like giving up information to get a useful service -- people seem quite happy to do that. It's that they're not quite clear on what they're giving up and what they're getting back and how to weigh those two things. And that (quite reasonably!) makes people nervous and worried about their "privacy." That's why, in helping Namecheap put together a Privacy Bill of Rights for internet companies, we focused on things that really do make the tradeoffs more explicit and put the user in control. Concepts like better transparency and control are the keys here. Trading information for services can be a great deal -- it's what powers a large part of the internet we all find so valuable. But it needs to be done in a manner that doesn't make people nervous or afraid. It needs to be done in a manner where they understand the tradeoffs and truly do have some control.
In such a world, where companies aren't focusing on tricking people or doing bad things with their data, then we can have a truly powerful internet that provides lots of services, but without people and users feeling like they're being abused or sucked dry of their information for little benefit. We're hopeful that in framing the discussion this way, companies will recognize the value of actually being more upfront and transparent, and users will be much more in control over their information and what they get in exchange for sharing it. If you agree with these principles too, please share the document and sign on to the bill of rights. Namecheap has promised to donate $5000 to EFF for every 500 signatures.
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Posted on Techdirt - 20 October 2016 @ 10:44am
We've talked a lot about the end of ownership society, in which companies are increasingly using copyright and other laws to effectively end ownership -- where they put in place restrictions on the things you thought you bought. This is bad for a whole variety of reasons, and now it's especially disappointing to see that Tesla appears to be jumping on the bandwagon as well. The company is releasing its latest, much more high powered, version of autonomous self-driving car technology -- but has put in place a clause that bars Tesla owners from using the self-driving car for any competing car hailing service, like Uber or Lyft. This is not for safety/liability reasons, but because Tesla is also trying to build an Uber competitor.
We wrote about this a few months ago, and actually think it's a pretty cool idea. Part of the point is that it effectively will make Tesla ownership cheaper for those who want it, because they can lease it out for use at times when they're not using it. So your car can make money for you while you work or sleep or whatever. That's a cool idea.
But it's flat out dumb to block car owners from using the car however they want.
If Tesla wants to compete with Uber, that's great, but it should compete and offer a better deal for car owners, rather than artificially limiting what they can do. And the thing is, Elon Musk knows this. Remember, a few years ago when he famously freed up all Tesla patents into the public domain, recognizing that it was better to compete on execution rather than artificial legal limitations? So why not take that same approach with competing in car hailing services as well? Don't limit what owners can do with their cars. That's now ownership. ow they're just leasing.
Tesla's plan for a competing ride hailing service is a good idea, and I'm excited to see what the company does with it, but if it starts off by artificially blocking Tesla owners from using their cars on competing services, it makes me think that Tesla doesn't think it's own service will be very good, and therefor it needs to artificially lock Tesla owners into its own platform, rather than competing on the merits. That seems antithetical to the message that Tesla and Elon Musk have given off in the past. Hopefully Musk reconsiders this anti-consumer move and recognizes that Tesla can build such a service that can stand on its own merits without artificially restricting Tesla owners.
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Posted on Techdirt - 20 October 2016 @ 9:33am
A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.
The execs are now hitting back -- as they should. They've asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.
The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to
impose criminal liability on a website simply because it published and received fees for third-party
ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to
websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230.
Escort ads on Backpage.com are protected speech under the First Amendment, as several courts
have held. The AG cannot arrest, imprison and refuse to release individuals associated with the
website simply based on an investigator’s opinions about what he believes is “obvious” about
escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have
rejected the same tack time and again. The First Amendment also expressly precludes state
authorities from imposing criminal liability on parties that publish or distribute speech absent
proof of scienter, i.e., that the publisher knew the specific information published was unlawful.
The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959),
recognizing the First Amendment prohibits states from imposing criminal liability that would
require publishers to review all materials they distribute, because such a requirement would
severely chill speech.
More specifically, the AG’s theory expressly violates Section 230, which Congress enacted
twenty years ago to preserve and promote free speech on the Internet by immunizing website
operators from liability for publishing content provided by third-party users. Section 230
preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris
has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has
now commenced a prosecution to do precisely what she admits Section 230 prohibits.
That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230
to grant state AGs the ability to go after Backpage. We had written about this letter
three years ago when it was sent, but I had forgotten that it explicitly
called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew
it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:
after instance, State and local authorities discover that the vehicles for
advertising the victims of the child sex trade to the world are online classified
ad services, such as Backpage.com. The involvement of these advertising
companies is not incidental—these companies have constructed their business
models around income gained from participants in the sex trade. But, as it has
most recently been interpreted, the Communications Decency Act of 1996
(“CDA”) prevents State and local law enforcement agencies from prosecuting
these companies. This must change. The undersigned Attorneys General
respectfully request that the U.S. Congress amend the CDA....
Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?
Separately, the lawyers have sent a letter to Harris directly
reminding her of this and asking her to drop the case:
Ads posted on Backpage.com are protected by the First Amendment, as several courts
have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County,
Illinois and rejecting much the same theories that the State asserts here: “[A] public official
who tries to shut down an avenue of expression of ideas and opinions through actual or
threatened imposition of government power or sanction is violating the First Amendment.”
... The State cannot prosecute a publisher
for publishing speech with absolutely no showing that the speech was unlawful, much less
any allegation that defendants ever even saw the specific ads that are the basis for its
charges. As the Supreme Court has long recognized, states cannot punish parties that
publish or distribute speech without proving they had knowledge of illegality, as any other
rule would severely chill speech.
More specifically, Section 230 precludes the charges the State seeks to assert. As you
know, Section 230 bars state-law claims against websites and other interactive computer
services based on the publication of third-party content. A website cannot be held liable for
publishing content submitted by users or for failing to block or remove such content,
notwithstanding any allegations that it knew or should have known the content concerned
unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state
laws. Literally hundreds of cases have applied and underscored the broad immunity that
Section 230 provides and that Congress intended so as to avoid government interference—
especially by state authorities—that would chill free speech on the Internet.
Indeed, in July 2013, you and other state attorneys general signed a letter to various
members of Congress urging that Section 230 be amended to exempt state criminal laws
from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from
National Association of Attorneys General.... It is
troubling that the State is now pursuing a prosecution you admitted you have no authority to
Accordingly, the State should dismiss the complaint and all charges against Messrs.
Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.
Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.
Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.
In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.
Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.
And, as Kamala Harris knows, it probably won’t even make the evening news.
Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.
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Posted on Techdirt - 20 October 2016 @ 6:25am
A few weeks ago, we wrote about how David Kittos was threatening the Trump campaign with a copyright infringement lawsuit after Donald Trump Jr. tweeted out a really dumb image involving a bowl of Skittles and a ridiculous statement about refugees.
There was some irony there, in that Kittos himself was a refugee from Turkish occupation in Cyprus and escaped to the UK. His photo
is still up on Flickr, and does say that it's "all rights reserved." At the time, Kittos only hinted at a lawsuit, but also said "I don't know if I have the patience" to follow through on a lawsuit. We did notice that a week or so later, Twitter had removed the image
after receiving a DMCA takedown notice
So that was at least some indication that Kittos may have found some lawyers to help him. And now those lawyers have actually sued the Trump campaign for copyright infringement
. You can read the whole lawsuit
, if you'd like. He's suing the Trump campaign, along with Donald Trump Sr. & Jr. and Mike Pence personally.
Some interesting points about the lawsuit. Kittos did
register the image... but not until after
all this went down. The Copyright Office lists the registration date as October 3rd of this year:
That's why the lawsuit asks for "actual damages" rather than statutory damages (you can only ask for statutory damages if the work was registered prior to infringement). But good luck showing any actual damages.
The bigger issue, though, is that this is almost certainly a bogus copyright infringement case. The Trump campaign has a pretty strong fair use argument, helped along by Kittos himself originally admitting
that "I have never put this image up for sale" and "I was just experimenting with something called off-camera flash." There goes prong four of the fair use test, the "effect on the market," when the plaintiff has already admitted there never was a market. Also, the lawsuit itself makes it pretty clear that the lawsuit isn't really about copyright infringement, but about Kittos being upset about the message of the Trump meme.
I get that. I mean, I agree that the tweet is stupid and ignorant. But that's not the role of copyright
. And yet, throughout the lawsuit, Kittos' lawyer keeps pointing to the "offensive" nature of the content as the reason that it's infringement. But that does not matter at all for a copyright infringement claim.
The unauthorized use of the Photograph is reprehensibly offensive to
Plaintiff as he is a refugee of the Republic of Cyprus who was forced to flee his home at
the age of six years old.
That's an interesting news hook, but it has nothing to do with copyright.
Also, given that this is someone trying to silence a political campaign, it seems fairly obvious that this is actually a SLAPP lawsuit, rather than a legitimate copyright lawsuit. Of course, that may explain why the lawsuit was brought in Illinois (remember, Kittos is in the UK, and the Trump campaign is certainly not based in Illinois). Illinois has an anti-SLAPP law
, but it's been interpreted narrowly
, and it's unclear if it would be allowed here -- though it's possible. The key case, Sandholm v. Kuecker, does include a test on "the plaintiff's intent in bringing the lawsuit." If it's to stifle speech or participation in government, then the anti-SLAPP law may apply. So Kittos may actually end up in trouble himself for filing this lawsuit. Notably, if the Trump campaign argues that this is a SLAPP suit and it wins, Kittos himself may be responsible for Trump's legal fees.
In other words, while I can understand why Kittos may have filed this lawsuit, it seems like someone may have given him some bad advice, and it may cost him.
Of course, he may be hoping that the Trump campaign just pays him off to go away. After all, the lawsuit mentions another copyright lawsuit
filed against the campaign earlier this year, over a bald eagle photo -- and in that one, the Trump campaign settled the case
, though no details were given on how it was settled.
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Posted on Techdirt - 19 October 2016 @ 9:42am
Another day, another weird copyright takedown for censorship rather than legit copyright reasons. Adrian Lopez alerts us to a YouTube video that no longer exists at that link. If you go there (as of right now), you get this:
If you can't quite read the text up top, it says "This video is no longer available due to a copyright claim by Samsung Electronics America, Inc. and its affiliates."
What that video used to be, according to the original description was:
GTA 5 Mod Showcasing the explosive Samsung Galaxy Note 7. You can blow people up with a Samsung Galaxy Note 7 in GTA V.
And there's the little thumbnail that was
shown in the Twitter card for the video before it disappeared:
In case you still don't get what's going on here, let's lay it out for you: there's a big story going on these days about how Samsung's Galaxy Note 7 devices are, well, catching fire (some prefer exploding, but it seems that they're mostly just setting themselves on fire). It's causing injuries and Samsung is in full on panic mode. It's now a felony to bring a Galaxy Note 7 on an airplane. This is the kind of stuff that business school case studies are written about years later, describing how Samsung handled this kind of crisis.
GTA 5, of course, is the video game Grand Theft Auto 5. And, like many video games, it's possible to mod (modify) those video games to add in other elements. And so it appears that someone took the "ripped from the headlines" stories of exploding Note 7s and created a GTA 5 mod that made such things into weapons you could use in the game.
It's kind of funny, actually.
What it is not
, however, is copyright infringement. I don't care how you slice or dice it. It's not copyright infringement. Samsung may be embarrassed
by its exploding devices, and it may not like people making fun of them or turning them into weapons in video games, but that doesn't matter
. There's no copyright infringement against Samsung's copyrights in doing that. And it's flat out ridiculous that Samsung appears to have made a copyright claim over such a video. Hopefully whoever put up the video challenges this and YouTube comes to its senses...
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Posted on Techdirt - 18 October 2016 @ 3:23am
Last week it was announced that journalist Amy Goodman would go to North Dakota to face charges over her coverage of North Dakota oil pipeline protests that went viral. The idea that Goodman was charged with doing journalism was really ridiculous. The original charges focused on "trespassing" but once the local state's attorney, Ladd Erickson, realized that those clearly would not stick, he changed them to rioting. When asked to defend the arrest warrant and charges by a local newspaper, Erickson displayed a complete lack of understanding of the First Amendment in saying that because Goodman's coverage was sympathetic to the protesters, it was fine to consider her a protester too.
Thankfully, a judge disagreed and rejected the rioting charge.
District Judge John Grinsteiner did not find probable cause to justify the charges filed on Friday October 14 by State’s Attorney Ladd R. Erickson. Those charges were presented after Erickson had withdrawn an earlier charge against Goodman of criminal trespass.
Bizarrely, it appears Erickson is planning to hit the law books
to see if there's anything else he can find to charge Goodman:
She and her lawyers declared victory on Monday, but Ladd Erickson, a state prosecutor who is assisting the Morton County state’s attorney’s office in the case, said other charges were possible.
“I believe they want to keep the investigation open and see if there is any evidence in the unedited and unpublished videos that we could better detail in an affidavit for the judge,” he said via email. “The Democracy Now video that many people have seen doesn’t have much evidence value in it.”
That alone just seems like more intimidation -- planning to look at "unedited and unpublished videos" to try to find something to charge Goodman over. This is just blatant intimidation of the press, basically trying to get info on sources.
Of course, if the goal was to intimidate Goodman away from reporting on the protests, it appears to have failed. Goodman has pledged to continue to cover the story. The question remaining, though, is if Erickson gets any reprimand for clearly violating the constitutional rights of journalists? It remains deeply problematic that the charges and arrest warrant were ever issued in the first place.
Meanwhile, a documentary filmmaker, Deia Schlosberg, who was also in North Dakota filming protesters was also arrested
and has been charged with a series of felony charges including "theft of property, conspiracy to theft of services and conspiracy to tampering with or damaging a public service." So, apparently Goodman isn't the only one targeted for doing First Amendment protected work in covering the stories of protesters.
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Posted on Techdirt - 17 October 2016 @ 1:05pm
David Ulevitch, the founder of OpenDNS (now owned by Cisco), apparently discovered that the dirty minds at the California DMV see "lust" in information security. How else to explain that the DMV rejected his request for a vanity plate for the license plate "1NFOS3C":
As you can see, the DMV rejected it because it "has a sexual connotation, or is a term of lust or depravity. Now, that probably has you shaking your head. What possible "sexual connotation" is there in "information security" shortened and with a few numbers instead of letters? One response
to David's tweet suggests the DMV read it as "in fo' sex" which brings an entirely new way of thinking about information security... Though as another response shows, the way to get bad words by the California DMV is apparently to use a mirror
in designing your vanity plate:
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Posted on Techdirt - 17 October 2016 @ 9:36am
Hillary Clinton's position on encryption -- like so much of her tech policy -- has been kind of vague and wishy-washy. Saying things that possibly sound good, but could easily turn out to be bad depending on what is really meant. It's sort of the classical politician's answer on things, trying to appease multiple sides of an issue without getting fully pinned down on something that might come back to bite you later.
It started back in November of 2015, when Clinton gave a speech, which put her firmly into the "but Silicon Valley should nerd harder to figure out a backdoor" camp. A few weeks later, she doubled down on the "nerd harder" response in an interview with George Stephanopoulos:
STEPHANOPOULOS: How about Apple? No more encryption?
CLINTON: This is something I've said for a long time, George. I have to believe that the best minds in the private sector, in the public sector could come together to help us deal with this evolving threat. And you know, I know what the argument is from our friends in the industry. I respect that. Nobody wants to be feeling like their privacy is invaded.
But I also know what the argument is on the other side from law enforcement and security professionals. So, please, let's get together and try to figure out the best way forward.
A few weeks after that
, she went even further, calling for a "Manhattan Project" on backdooring encryption. As we noted at the time, that made no sense
and suggested a complete cluelessness about encryption and the issues related to it.
Now, with the release of the hacked emails from Clinton campaign manager John Podesta, we get to find out that Clinton's staff basically agreed with us
that her statements on encryption were ridiculous, and felt that she should not support any effort to backdoor encryption.
It started with an internal discussion in response to an inbound request from Politico, where some of her staffers sought to avoid answering the question
on backdooring encryption, while admitting internally the reality. Here were the "boiled down" talking points, presented by Ben Scott (a former State Dept official who also ran Free Press for a few years):
1-The bad guys could already get crypto -- we helped the good guys get it.
2-The Internet Freedom investments in these technologies were strongly bipartisan (and remain so).
Those are good points. I wish she'd actually said that, rather than what eventually came out.
The second email comes right after that "Manhattan Project" comment at the debate in the middle of December, and there her staffers discuss what a terrible analogy it is and how they should tell the tech industry
that Hillary won't support backdoors, but instead supports using hacking/malware to spy on terrorists (which is a better solution all around, though it raises some other issues).
The email thread starts off with lawyer and Clinton (and former Obama) advisor Sara Solow first highlighting the flip-floppy nature of Clinton's comments, and then followed it up by noting that the "flop" side of (supporting backdooring encryption) is "impossible":
She basically said no mandatory back doors last night ("I would not want to go to that point"). In the next paragraph she then said some not-so-great stuff -- about there having to be "some way" to "break into" encrypted content-- but then she again said "a backdoor may be the wrong door."
Please let us know what you hear from your folks. I would think they would be happy -- she's certainly NOT calling for the backdoor now -- although she does then appear to believe there is "some way" to do the impossible.
Teddy Goff, a political strategist and the digital director for Obama for America during the 2012 campaign, responds, calling it "a solid B/B+" and suggests that someone tell Clinton never to use the Manhattan Project line again. He also highlights the point that Ben Scott had raised a month earlier, and that it was clear that Clinton did not understand, that there is open source encryption out there that anyone can use already, and any attempt to backdoor proprietary encryption won't stop anyone from using those other solutions. Finally, he suggests that having "pledged not to mandate backdoors" will be useful going forward.
i think it was fine, a solid B/B+. john tells me that he has actually heard nice things from friends of ours in SV, which is rare! i do think that "i would not want to go to that point" got overshadowed in some circles by the "some way to break in" thing -- which does seem to portend some sort of mandate or other anti-encryption policy, and also reinforces the the ideological gap -- and then, more atmospherically, by the manhattan project analogy (which we truly, truly should not make ever again -- can we work on pressing that point somehow?) and the cringe-y "i don't understand all the technology" line, which i also think does not help and we should avoid saying going forward.
speaking of not understanding the technology, there is a critical technical point which our current language around encryption makes plain she isn't aware of. open-source unencrypted messaging technologies are in the public domain. there is literally no way to put that genie back in the bottle. so we can try to compel a whatsapp to unencrypt, but that may only have the effect of pushing terrorists onto emergent encrypted platforms.
i do think going forward it will be helpful to be able to refer to her having pledged not to mandate a backdoor as president. but we've got to iron out the rest of the message. i actually do believe there is a way to thread the needle here, which i am happy to discuss; it requires us to quickly pivot from encryption to the broader issue of working with tech companies to detect and stop these people, and not getting into the weeds of which app they happen to use and that sort of thing.
Finally, Solow responds to Goff agreeing that the "some way in" line implies undermining encryption, but suggests that they quietly let the tech world know that they don't mean backdoors, but just mean hacking/malware:
That she says no backdoor, which is good, but then says we need a way in, and then the bad line about not understanding technology. The latter two points make the first one seem vulnerable.
But in terms of wanting a way to break in - couldn't we tell tech off the record that she had in mind the malware/key strokes idea (insert malware into a device that you know is a target, to capture keystrokes before they are encrypted). Or that she had in mind really super code breaking by the NSA. But not the backdoor per se?
There are some obvious concerns with the hacking/malware stuff, but it's at a very different level than breaking encryption. While it's still ridiculous that Clinton won't just come out and say that backdooring encryption gives us both
less security and less privacy, it does appear that she has people on her team who get the basics here. That's at least moderately encouraging. It would be better if there were some stronger indication that Clinton is actually listening to them.
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Posted on Techdirt - 17 October 2016 @ 6:28am
On Friday, we wrote about the ridiculous arrest warrant for reporter Amy Goodman for reporting on the protests over the North Dakota oil pipeline. At the time, the charges against Goodman were apparently for trespassing, but late on Friday, the state's attorney alerted Goodman's lawyer that they were now actually trying to charge her with rioting. Say what?
“I came back to North Dakota to fight a trespass charge. They saw that they could never make that charge stick, so now they want to charge me with rioting, " said Goodman. "I wasn’t trespassing, I wasn’t engaging in a riot, I was doing my job as a journalist by covering a violent attack on Native American protesters."
Apparently, the state's attorney, Ladd Erickson, figured out enough about the law to realize that trespassing charges would never stick because there needs to be notice before it's trespassing, and no notice was presented. But Erickson is still really, really confused about how the First Amendment works. He told a local newspaper that Goodman's reporting was illegal because it was sympathetic to the protestors
“She’s a protester, basically. Everything she reported on was from the position of justifying the protest actions,” said Erickson
That's uh, not how the First Amendment works. And it will be fascinating to see Erickson try to now justify the "riot" claims when the complaint itself admits that Goodman was interviewing protestors. Apparently the judge will decide later today if the riot charges will stand. One hopes that he understands the First Amendment more than the state's attorney.
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Posted on Techdirt - 14 October 2016 @ 10:51am
Two years ago, we wrote about the ridiculousness of police arresting reporters for reporting in Ferguson, Missouri, even though courts had told police to knock it off. Even more ridiculous is that those reporters were eventually charged, leading to a ridiculous settlement earlier this year.
And yet... arresting journalists for doing journalism continues to be a thing. As you probably know, there have been a bunch of protests in North Dakota lately concerning the Dakota Access Pipeline. Back in September, after covering the protests and having some of her videos of an attack on the protestors go viral, famed Democracy Now reporter Amy Goodman found out an arrest warrant had been issued for her. It's pretty clear that this arrest warrant was solely because of the coverage reflecting poorly on officials.
On Thursday, Goodman said that she'll surrender to authorities next week. As Democracy Now points out, the criminal complaint against her is so transparently unconstitutional and so transparently about intimidating reporters, that it actually notes that "Amy Goodman can be seen on the video identifying herself and interviewing protesters about their involvement in the protest." Right. That's called journalism. Goodman was basically arrested for doing journalism that the powers-that-be dislike.
Organizations that fight for free speech for journalists are condemning all of this. The Committee to Protect Journalists notes that this is "a transparent attempt to intimidate reporters from covering protests of significant public interest" while the Freedom of the Press Foundation is demanding that North Dakota drop the charges.
And they may want to seriously consider dropping the charges and walking away. After all, Goodman was also arrested for covering protests back in 2008, and that eventually ended with the police and local governments having to pay her $100,000 for violating her civil rights.
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Posted on Techdirt - 14 October 2016 @ 9:40am
It's no secret that there's been a huge number of totally fake news websites popping up in the past few years. Apparently, it's a fun and profitable venture. While some of the fake news sites come up with generic names, like National Report, Hot Global, The Valley Report and Associated Media Coverage, some of the most successful fake news sites just make use of the big well-known broadcaster websites... and just get a .co domain: using nbc.com.co or abcnews.com.co. Some of the hoax stories are really well done -- and, yes, even we've been fooled, though in our defense, the fake story we fell for... was so believable it became true just months later. But, of course, we're just a bunch of random bloggers, not a Presidential campaign.
The Trump campaign, on the other hand, should know better. Amusingly, of course, this week we've talked about the Trump campaign's willingness to fall for hoaxes, but they seemed to take it up a notch this week. I first noticed it when I saw Trump's campaign manager, Kellyanne Conway tweet an obviously fake story, claiming that an anti-Trump protestor was really paid by the Clinton campaign.
You can even see the URL there, showing that it's "abcnews.com.co" and not the actual ABC news website (even if Conway does tag the real ABC as if they wrote the article). And, as I was writing up this story, I saw that The Hill notes that Donald Trump's son, Eric Trump, tweeted the same fake story
Here's the thing, though. If you actually look at the story, it's so obviously fake
. I mean, first off, just the claim that a protestor got $3500 to protest a Trump rally? I mean, even Donald Trump himself only paid his fake supporters $50
to cheer at his campaign announcement. Yes, the Clinton campaign has raised a lot more money than the Trump campaign, but $3500 a protestor? I mean, that's pretty obviously a ridiculous number.
And the article itself just gets more and more ridiculous the more you read. Whoever wrote this is clearly not even trying to fool people. I mean, just read this paragraph about how the guy knows it's Hillary's campaign that "paid" because the people who contacted him used AOL:
“As for who these people were affiliated with that interviewed me, my guess would be Hillary Clinton’s campaign,” Horner said. “The actual check I received after I was done with the job was from a group called ‘Women Are The Future’. After I was hired, they told me if anyone asked any questions about who I was with or communicated with me in any way, I should start talking about how great Bernie Sanders is.” Horner continued, “It was mostly women in their 60’s at the interview that I went to. Plus, all the people that I communicated with had an AOL email address. No one still has an AOL email address except people that would vote for Hillary Clinton.”
Or, how about the made-up Trump supporter in the article saying it was obviously a fake protestor because they shouted facts, or how "the best we could do was just yell and punch 'em."
“I knew those weren’t real protesters, they were too organized and smart,” said 59-year-old Tom Downey, a Trump supporter who attended the rally in Fountain Hills. “I knew there was something up when they started shouting all these facts and nonsense like that. The best we could do was just yell and punch em’ and stuff.” Downey continued
Yeah, sure. These fit the "stereotypes" but in such an exaggerated way that it's obviously false.
And then the article actually sorta becomes self-aware, with a pretty big wink to anyone who actually read it that it's false:
David Mikkelson, founder of Snopes.com, a website known for its biased opinions and inaccurate information they write about stories on the internet in order to generate advertising revenue, told ABC News that he approves of what a story like this is accomplishing.
“You have to understand that when a story like this goes viral, and we spend a minute or two debunking it, we make lots of money. Stories like this have helped put my children through college, buy a new car, a home and even get the Silverback gorilla my wife Barbara always wanted since she was a child,” Mikkleson said. “We claim ‘to provide evidence for such debunkings and confirmation as well‘, but that’s just ridiculous. Do you know how much time that would take? Instead, we just copy and paste parts of the original article into ours, write a couple sentences, and that’s it. I just want to be clear, our website does zero journalism or anything creative, and I’m only telling you this for legal reasons...."
That one goes on for a while having the fake Snopes person going on and on about fake news sites, totally unrelated to the subject of this "story." So, uh, yeah. It's pretty clear that either Trump's son and campaign manager read the story and are so completely clueless that they still thought it was real, or they were so excited by what the headline claimed that they just glided right past the ridiculous dollar amount and assumed it must be true. Yes, people get fooled by fake news stories all the time. But having an actual Presidential campaign get fooled by one is... well... bad.
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Posted on Techdirt - 14 October 2016 @ 3:17am
Oh Charles Harder. You just keep supplying more and more fodder for Techdirt stories. You may remember Harder as the lawyer thrust into the public realm after Peter Thiel allegedly bankrolled him to start a new law firm with a focus on taking on any lawsuit that might help bring down Gawker. Having succeeded in bringing down Gawker through dubious lawsuits, Harder has moved on (well, not entirely) to bigger fish, including Roger Ailes and Melania Trump.
And while Donald Trump has been focusing his defamation threats mostly on the NY Times, Melania and Harder have decided to focus on People Magazine. As you probably have heard by now, among the fairly long list of articles that came out on Wednesday and Thursday involving women saying that Donald Trump sexually assaulted (or engaged in other sketchy behavior) was a really disturbing story at People Magazine, where People writer Natasha Stoynoff wrote about Trump pushing her against the wall and kissing her, while she was there to interview both Donald and Melania. In fact, Stoynoff claims that the assault happened during a break in the interview with the couple, while a pregnant Melania had gone upstairs to change.
Some people had been asking how Melania had been reacting to this story, which (unlike many of the other accusations) much more closely involved her, in that it took place while she was in the home and happened to a reporter who was writing a story on the couple. Well, now we know. Melania tweeted out a retraction demand to People written by Charles Harder. And it's even more ridiculous that Harder's usual threat letters. The crux of it is that Melania denies a few unimportant side details of the article around Stoynoff's claim that she ran into Melania a year or so later, after she'd left the Trump beat (because of Trump's actions). Harder claims that Melaina never ran into Stoynoff:
The following statements in the Story, among others, are false and completely fictionalized. We therefore demand that you immediately and permanently remove each of these statements from the Story, and print a prominent retraction and apology:
The true facts are these: Mrs. Trump did not encounter Ms. Stoynoff on the street, nor have any conversation with her. The two are not friends and were never friends or even friendly. At the time in question, Mrs. Trump would not have even recognized Ms. Stoynoff if they had encountered one another on the street.
- "That winter, I actually bumped into Melania on Fifth Avenue, in front of Trump Tower as she walked into the building, carrying baby Barron."
- "'Natasha, why don’t we see you anymore?' she asked, giving me a hug."
- "I was quiet and smiled, telling her I’d missed her, and I squeezed little Barron’s foot."
Harder then claims that if People does not remove and retract those statements then it "will require Mrs. Trump to consider her legal options."
Let's put this simply: Mrs. Trump's legal options are... nothing. Nada. Zilch. Note that Harder did not claim that any of these statements are defamatory. Because even he must know that they are not defamatory even if they are false
. There is no harm in those statements. There is no nothing. They are just someone remembering what may have happened. Even if it didn't happen, that doesn't create any legal liability or problem, and it's certainly not defamation.
As with Donald, it seems like these weak ass legal "threat" letters seem more designed to scare off others with the knowledge that if you come forward or if you publish a story about someone who comes forward, the Trump team of lawyers will hassle you in some manner or another.
But, really, this particular letter is so weak and so empty of any actual issue, that you have to wonder what the hell is going on. Is it that Melania demanded something
be done and this was the best that Harder could muster up given the lack of anything legitimate to whine about? Could it be that Harder thinks he can actually bully People into pulling these minor facts? It's not at all clear, and while I guess maybe (?!?) this helps Harder in that clueless censorious celebrities know they can go to him and he'll send clearly ridiculous threat letters on their behalf, for lots of other people, it just undermines any credibility Harder has on the subject of defamation and free speech. He looks completely foolish and petty.
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Posted on Techdirt - 13 October 2016 @ 2:36pm
Just last week, we discussed Donald Trump's ridiculous and almost instinctual reaction to threaten to sue the media any time they write something about him that he dislikes. That's not how defamation law works, and Trump should know since he's sued for defamation a few times in the past, and lost. Of course, Trump has also flat out admitted that he sometimes sues for defamation just to cost opponents money, which is the classic definition of a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit.
This is all quite relevant today, seeing as a whole bunch of stories broke in the past 24 hours or so about Trump, mainly focusing on claims by women of (frankly) horrific things he's accused of doing to them (and, again, we're not a political site, and I'd really, really appreciate it if the comments on this post don't go down a political path, even if I know such a request is unlikely to be respected). Trump and his lawyers immediately started threatening to sue. The main target so far is the NY Times, which published the first major story, focusing on the allegations of two women. But within that story, the article notes that the reporters got Trump on the phone and he immediately threatened a lawsuit:
In a phone interview on Tuesday night, a highly agitated Mr. Trump denied every one of the women’s claims.
“None of this ever took place,” said Mr. Trump, who began shouting at the Times reporter who was questioning him. He said that The Times was making up the allegations to hurt him and that he would sue the news organization if it reported them.
“You are a disgusting human being,” he told the reporter as she questioned him about the women’s claims.
A few hours later, there were reports that Trump's lawyers were preparing a lawsuit against the NY Times and the Palm Beach Post, which had another story of another woman. Instead, however, Trump's lawyers sent a laughably thin cease and desist letter
. As we and others have pointed out repeatedly, a defamation threat letter that fails to point out what statements are actually defamation is an empty threat letter designed to scare off the naive and clueless.
The NY Times, of course, is neither weak, nor clueless, especially when it comes to defamation law. The NYT's assistant General Counsel David McCraw's reply is well worth reading. After first (of course) saying that they won't take down the article, McCraw makes the argument that Trump is effectively "defamation proof" as his reputation is so bad on these matters, that any article couldn't make it much worse.
The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump
has bragged about his non-consensual sexual touching of women. He has bragged about
intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio
host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women
not mentioned in our article have publicly come forward to report on Mr. Trump's
unwanted advances. Nothing in our article has had the slightest effect on the reputation
that Mr. Trump, through his own words and actions, has already created for himself.
That's... pretty incredible. It sure would be interesting in court (though it's unlikely to ever get there, as we'll explain). From there, the NYT notes a second point, which is that they were reporting on a matter of national importance:
But there is a larger and much more important point here. The women quoted in our
story spoke out on an issue of national importance indeed, an issue that Mr. Trump
himself discussed with the whole nation watching during Sunday night's presidential
debate. Our reporters diligently worked to confirm the women's accounts. They
provided readers with Mr. Trump's response, including his forceful denial of the
women's reports. It would have been a disservice not just to our readers but to
democracy itself to silence their voices. We did what the law allows: We published
newsworthy information about a subject of deep public concern. If Mr. Trump disagrees,
if he believes that American citizens had no right to hear what these women had to say
and that the law of this country forces us and those who would dare to criticize him to
stand silent or be punished, we welcome the opportunity to have a court set him straight.
Notably missing from this letter is the usual response to blowhard defamation threats: that truth is an absolute defense to defamation, and in suing, you are opening yourself up to pretty widespread discovery -- and also that Trump has a very, very high bar to cross to win a defamation lawsuit. That is, as we've discussed many times, in the US, for there to be defamation of a public individual, the material printed must not just be false, but must be published with malicious intent. That's going to be virtually impossible for Trump to show if it even gets that far.
Of course, as many have pointed out, it's quite unlikely that any lawsuit (if one is actually filed -- and so far this campaign, Trump has threatened to sue publications many times and never followed through) would be dropped by Trump soon after the election. The only reason to threaten or to file a lawsuit is really just to scare off other women from coming forward and/or to scare off other publications for publishing such a story. And that's the real issue here: the chilling effect of abusing defamation law in this manner.
While Tim O'Brien, a writer that Trump actually did sue for defamation (and where he lost badly -- actually, he's the author that Trump gleefully explained that he sued just to cost him money), is saying that publications shouldn't fear Trump lawsuits
because he'll always lose and it's not that easy. A publication like the NY Times has the resources to handle any such lawsuit. But many (perhaps most) other publications do not. And it is both timely and cost-intensive to defend against even a bogus lawsuit. And every publication knows that.
And that's the real problem here. It creates massive chilling effects on reporting on a topic of national importance concerning the Presidential election.
This is why we've been blathering on for years about the need for a federal anti-SLAPP law
that would prevent these kinds of lawsuits, allowing for them to be tossed out of court quickly and where those who file such suits will have to pay the expenses of those they sued (of course, it should be noted that a key sponsor of the federal anti-SLAPP law that was introduced last year is also a top Trump supporter
Right now, unfortunately, anti-SLAPP laws are state-specific, with some states having no such laws, and many having very weak laws. You can bet that if Trump's lawyers do sue, they'll do so in a state that has very weak or non-existent anti-SLAPP laws. But as Eriq Gardner at the Hollywood Reporter points out
, these constant bogus threats should be a wake up call for Congress to finally pass a strong federal anti-SLAPP law.
As many have recognized, if Donald Trump does bring a lawsuit against media outlets over their coverage of sexual assault allegations, it will hardly be resolved by Election Day. Many speculate that Trump will quickly drop such claims post-election to avoid a discovery process that would investigate the real truth. No one should fail to recognize, however, that the lawsuit itself is a form of bullying intended to give members of the media and other women pause before reporting about this public figure's fitness for office.
The only way to ensure that members of the media throughout the nation continue to be strong participants in civic affairs is to erect downsides to the filing of lawsuits. The U.S. Congress has such an opportunity and can discourage attacks on the First Amendment with a federal anti-SLAPP act that imposes penalties on frivolous lawsuits that cost money to defend and suck up judicial resources. It's time for lawmakers to act.
Indeed. Of course, expecting Congress to do anything right now is kind of ridiculous. It's not going to happen, even though it should.
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Posted on Techdirt - 13 October 2016 @ 9:34am
So, last year, we wrote about the ridiculous situation in which the heirs of Abbott and Costello had sued for copyright infringement over a broadway play, Hand to God. In that play, which is a dark drama, and not a comedy, about a puppeteer, there's a scene in which the puppeteer performs a bit of the famous "Who's On First?" routine with puppets. The district court wasted little time in dumping the lawsuit. As we detailed in our first post, the copyright issues here were already somewhat complex for a variety of reasons. The short version is that (1) lots of comedy teams performed the same basic act before Abbott & Costello, and (2) the "copyright" is not actually for the whole routine, but rather two separate performances in two separate movies, where Abbott & Costello did (different) versions of the act. It is true that Universal Pictures transferred whatever copyright interest it might have in those two scenes to the heirs of Abbott & Costello in 1984, but it was never clear what copyright they could actually claim in those particular scenes & whether or not it had been properly registered and renewed.
The district court sided with the producers of Hand to God based on fair use, skipping over the more thorny question of whether or not there was a copyright at all. Basically, the court (correctly) noted at the motion to dismiss stage that it needed to interpret things in the most favorable manner to the plaintiff, and thus it would just assume that the copyrights were valid, and said that even if the copyrights were valid, fair use would lead the case to be dismissed.
Astoundingly, the heirs of Abbott & Costello have appealed... and they've lost on appeal as well at the Second Circuit court of appeals. But... the reasoning of the appeals court is very different, and potentially dangerous. Basically, the court here says that there's no valid copyright (which is probably correct), but then for no good reason also concludes that if there were a valid copyright, this would not be fair use. This is bizarre on a number of levels, starting with the fact that once it's decided there's no valid copyright, there's no reason at all to also do a fair use analysis, and it may mean that the fair use analysis is effectively meaningless dicta -- but you can bet that others will make use of it in trying to undermine fair use in other cases, and the fair use analysis here is bad. Really bad. Laughably bad... and not laughable like the Abbott & Costello routine.
First, on the question of the copyright's validity. The court goes fairly deep into the wording of various contracts in determining who had the responsibility for renewing the copyright in question in the movies, and basically finds that Abbott & Costello did not actually transfer the copyright to the movie studios, and thus, the team (or their heirs) failed to renew the copyright as necessary in 1968 -- and thus, the act is in the public domain (this ignores, again, that the actual act predates the movies, and even predates Abbott & Costello, but whatever). The only mention of the fact that the act was performed previously was to toss aside the estate's claim that the act should be considered a "work made for hire" so that the copyright could have actually gone to the movie studio (so that it could later be transferred to the estate). Yet the judge points out that it can't be a work made for hire, since Abbott & Costello had already performed it earlier, so they didn't make it for the movie studio (I'm not sure this actually makes sense, since the copyright would be in the specific fixed work, but, again, this is getting deep into the weeds).
Either way, the end result is no copyright, and that's a good thing, even if the reasoning is a bit weird for why.
But the really problematic part of the ruling is the fair use stuff. Again, it's not at all clear why the court is looking at fair use at all, since it says there's no copyright anyway. But it does. And it does so badly. While the district court found the use in the play clearly transformative (taking a pure slapstick Vaudevillian comedy routine and putting it in a dark & disturbing play), the appeals court disagrees, basically saying that since the use is recognizable, it's not transformative:
Far from altering Who’s on First? to the point where it is “barely
recognizable” within the Play... defendants’ use
appears not to have altered the Routine at all. The Play may convey a dark
critique of society, but it does not transform Abbott and Costello’s Routine so
that it conveys that message. To the contrary, it appears that the Play specifically
has its characters perform Who’s on First? without alteration so that the audience
will readily recognize both the famous Routine and the boy’s false claim to
having created it. Indeed, it is only after Who’s on First? is performed—at some
length, almost verbatim, and with the Play’s characters mimicking the original
timing, tone, and delivery of Abbott and Costello—that the boy’s lie about
creating the classic Routine—no part of the Routine—becomes the triggering
event for the puppet to assume an independent persona.
Defendants nevertheless maintain that using the Routine for such a
“dramatic,” rather than comedic, purpose was transformative. Appellees’ Br. 18
(stating that Play’s use of Routine was “far cry” from original “comedy schtick”).
The argument will not bear close scrutiny. The “dramatic” purpose served by
the Routine in the Play appears to be as a “McGuffin,” that is, as a theatrical
device that sets up the plot, but is of little or no significance in itself. To
advance the plot of the Play, specifically, to have the puppet Tyrone take on a
persona distinct from that of Jason, defendants needed Jason to lie about
something and for Tyrone to call him on it. But the particular subject of the lie—
the Routine—appears irrelevant to that purpose. Such unaltered use of an
allegedly copyrighted work, having no bearing on the original work, requires
justification to qualify for a fair use defense.
This seems like a very odd way to interpret transformative work -- and one at odds with a number of other cases, such as the Swatch v. Bloomberg case
(also in the 2nd Circuit) that clearly states that "a secondary work can be transformative in function or purpose without altering or actually adding to the original work." That is, the purpose of the use is what matters. Bizarrely, this ruling tries to basically walk its way out of that in a footnote, saying that in that case, it only meant data
and "not the creation of new artistic work." Huh? It also seems to go against the ruling in Bill Graham Archives v. Dorling Kindersley
(again, in the 2nd Circuit) where reusing full concert posters in a book was declared fair use because it was for an aggregated book, rather than to advertise concerts. Again, it was using the work, but for a different manner. And that wasn't about data, but about new works of art.
Basically, this ruling seems to ignore existing precedent in its own court for no clear reason at all.
Also troubling is the analysis of "the nature of the work," stating that "an original comedy sketch created for public entertainment lies at the heart of copyright's intended protection.
" Except that's ridiculous -- and not the least because (as noted earlier) this was a classic vaudevillian act that was performed by many others first and eventually by Abbott & Costello. Furthermore, as we've discussed in detail in the past
, there's quite a fair bit of "joke copying" in comedic circles, with individuals copying bits and routines from others, and it rarely has anything to do with copyright. Instead, various social norms generally are used to "police" this kind of activity, and lots of comedians admit that the power of an act is in the performance (delivery, comedic timing, flourishes, etc.) rather than in the idea of the joke itself. The idea that copyright is specifically necessary for a comedy routine is simply disproved by the history of comedy and comedic acts, especially
at the time that Abbott & Costello were performing.
The court also rejected the district court's (correct) decision that there was no impact on the market of this use, since it would not usurp the market for Abbott & Costello's performance. The appeals court falls for a favorite claim of copyright holders, which other, smarter, courts have disregarded: it's the "but what about the possibility of licensing the work."
In so doing, however, the district
court disregarded the possibility of defendants’ use adversely affecting the
licensing market for the Routine
Other courts have rejected this kind of argument, because it would undermine this factor of fair use in every single case
. This ruling kind of admits that, but then brushes it off, and notes that since there are lots of requests to license "Who's On First?" that this would impact the market. But it doesn't explain how.
Overall, none of this matters in this case, but it is troubling for potential future fair use cases, especially those in the Second Circuit, which has traditionally been really good on fair use cases.
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