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Posted on Techdirt - 18 January 2019 @ 3:29pm

Newly Revealed Documents Show Facebook Gleefully Refusing To Refund Money To Kids Who Ran Up Huge Bills On Mommy's Credit Card

from the coppa-coppa-coppa dept

Because Facebook wasn't looking awful enough already, some newly unsealed documents from a lawsuit going back a few years are now making the company look even worse, and certainly not doing the company any favors in its efforts to rehabilitate its reputation. Unfortunately, so far, Reveal, a project of the Center for Investigative Reporting, seems to only be revealing snippets of what's in the documents, rather than the full documents (come on guys...), but what they're sharing doesn't look great.

Specifically, a judge has unsealed previously sealed records from a 2012 class action lawsuit that was settled in 2016, concerning Facebook profiting off of children. The origins of the lawsuit involved a child who got his mother's credit card to play a game on Facebook, without realizing that the more he played, the more of his mother's money he was spending -- compounded by Facebook then refusing to refund the charges. The latest revelations show that Facebook employees knew that they made this information confusing, in a way that people (kids and adults alike) might not realize they were still spending money off of a credit card, and also having joking conversations about people trying to get their money back. Indeed, the snippet Reveal has released has Facebook employees referring to one teenager as "a whale" -- a term used in casinos to refer to big spenders.

In one of the unsealed documents, two Facebook employees deny a refund request from a child whom they refer to as a “whale” – a term coined by the casino industry to describe profligate spenders. The child had entered a credit card number to play a game, and in about two weeks racked up thousands of dollars in charges, according to an excerpt of messages between two employees at the social media giant.

Gillian: Would you refund this whale ticket? User is disputing ALL charges…
Michael: What’s the users total lifetime spend?
Gillian: It’s $6,545 – but card was just added on Sept. 2. They are disputing all of it I believe. That user looks underage as well. Well, maybe not under 13.
Michael: Is the user writing in a parent, or is this user a 13ish year old
Gillian: It’s a 13ish yr old. says its 15. looks a bit younger. she* not its. Lol.
Michael: ... I wouldn’t refund
Gillian: Oh that’s fine. cool. agreed. just double checking

Fine. Cool. Agreed. Or not. Not cool at all. And that's even if you argue (as some have on Twitter) that the "whale" comment is actually a typo for "whole" (and argument multiple people who worked in the space dispute, noting that "whale"/casino terminology was common in online games).

While you might just chalk this up to a conversation among perhaps lower level Facebook employees with screwed up incentives, Reveal notes that other documents make it clear that people within Facebook knew that their confusing UI was contributing to a problem:

Facebook employees began voicing their concerns that people were being charged without their knowledge. The social media company decided to analyze one of the most popular games of the time, Angry Birds, and discovered the average age of people playing it on Facebook was 5 years old, according to newly revealed information.

“In nearly all cases the parents knew their child was playing Angry Birds, but didn’t think the child would be allowed to buy anything without their password or authorization first,” according to an internal Facebook memo. The memo noted that on other platforms, such as Apple’s iPhone, people were required to reauthorize additional purchases, such as by re-entering a password.

A Facebook employee noted that children were likely to be confused by the in-game purchases because it “doesn’t necessarily look like real money to a minor.”

The documents also note that Facebook didn't send receipts for these purchases, meaning that parents wouldn't know about them until way later when the credit card bill shows up. Oh yeah, also "links on the company’s website to dispute charges frequently failed to work."

While one might try to argue that this is something that happened many years ago, when Facebook wasn't that careful about things, the company's reaction to these documents finally being revealed isn't great either:

In response to a request for an interview, Facebook provided a one-sentence statement: “We appreciate the court’s careful review of these materials.”

That's... not going to cut it. In the past year, almost every internet company I talk to is simply seething about Facebook and how it's basically destroying everything with the hamfisted way it deals with... almost everything. The company's ongoing and never-ending "apology tour" isn't changing anything, and if the company can't figure out that it has to take real ownership of its many problems, past and present, it's never going to fix them, nor rebuild trust. Responding with that sort of PR speak, rather than saying "we royally fucked up, but that was many years ago, and here are all the concrete steps we've taken to fix this" is just incompetent. The company has been in the limelight for so long yet it still doesn't seem to fathom how to deal honestly with a press that is calling out its many faults. While it is true that plenty of press coverage of Facebook in the past year has been misleading or unfair, the unwillingness of the company to take its real problems seriously, is a huge issue not just for Facebook, but for every other internet company as well.

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Posted on Techdirt - 18 January 2019 @ 11:55am

EU Cancels 'Final' Negotiations On EU Copyright Directive As It Becomes Clear There Isn't Enough Support

from the breaking:-the-internet dept

So, this is certainly unexpected. Just hours after we pointed out that even all of the lobbyists who had written/pushed for Article 13 in the EU Copyright Directive were now abandoning their support for it (basically because the EU was considering making it just slightly less awful), it appears that Monday's negotiations have been called off entirely:

Apparently multiple countries -- including Germany, Italy, the Netherlands and Poland -- made it clear they would not support the latest text put forth by Romania, and therefore would have blocked it from moving forward. Monday's negotiations were supposed to have been the "final" negotiations (after the previous "final" negotiations that didn't accomplish much) around a "compromise" bill that then would have gone out to be voted on by the EU Council, the EU Committee and the EU Parliament in the next few months. However, with the news of all those countries (via the EU Council) deciding to vote against the proposal, it effectively blocks it for now.

MEP Julia Reda now has the full breakdown of the votes, noting that 11 countries voted against the "compromise" text: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. That's... a pretty big list. Reda points out that most of those countries were concerned about the impact on users' rights (Portugal and Croatia appear to be outliers). That's pretty big -- as it means that any new text (if there is one) should move in a better direction, not worse.

As Reda notes, this does not mean that the Copyright Directive or Article 13 are dead. They could certainly be revived with new negotiations (and that could happen soon). But, it certainly makes the path forward a lot more difficult. Throughout all of this, as we've seen in the past, the legacy copyright players plowed forward, accepting no compromise and basically going for broke as fast as they could, in the hopes that no one would stop them. They've hit something of a stumbling block here. It won't stop them from still trying, but for now this is good news. The next step is making sure Article 13 is truly dead and cannot come back. The EU has done a big thing badly in even letting things get this far. Now let's hope they fix this mess by dumping Articles 11 and 13.

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Posted on Techdirt - 18 January 2019 @ 9:36am

Record Labels, Film Studios, Tech Companies And The Public Now All Agreed That Article 13 Is A Disaster

from the why-is-it-still-moving-forward? dept

Earlier this week, we noted that the film, TV and sports industry associations had come out against Article 13 in the EU Copyright Directive. It was for all the wrong reasons of course -- mainly, that (1) negotiators were exploring very minor safe harbors that would give internet platforms conditions they could follow to avoid liability and (2) they were hoping that a few court cases would break their way and they'd get an even better result in the courts -- but it was still notable. After all, much of Article 13 was pushed for by those same industry reps.

Still, some suggested that while the movie and TV folks wanted out, the record labels didn't, as they had been even more instrumental in crafting Article 13, with their entirely mythical concept of the "value gap" (a thing that does not actually exist) which they incorrectly believed Article 13 would solve. However, on Thursday, even the record labels bailed out on support for Article 13, though it appears for the same awful reasons as the film studios. They don't go quite as far as the film and TV folks (who ask for Article 13 to be put on hold indefinitely), but rather call for major changes:

With the final trilogue only days away, European creatives and rightsholders urgently inform EU policymakers that the 13 January draft text of the proposed Copyright Directive does not meet the original objective of Article 13 and urgently requires significant changes.

They don't really explain why they're so upset, but it's not difficult to see that it's the same reason as the film, TV and sports organizations. Again, Article 13 is a kind of bait and switch. All of the stuff people are complaining about -- the mandatory filters, notice-and-staydown, the insane fines -- all go away if the internet platforms agree to basically cough up all their money to the legacy copyright gatekeepers. The "secret" truth behind Article 13 is that even the folks crafting it know that all of the demands are absolutely ridiculous. It's just that they've included a "way out." And that "way out" is to agree to insane licensing rates from the legacy copyright players. Despite the nonsense you'll hear, this won't create "fair market" rates or "fair" anything. You don't negotiate a fair market rate when you're basically told that if you don't agree to whatever rates the copyright gatekeepers set, you'll get fined billions of dollars.

So any path to avoiding having to agree to a license at the end of a shotgun is seen as a non-starter for the entertainment industry. Though, their latest bit of petulance about not getting everything they want kind of gives away the gameplan. This was never about stopping infringement. It was always about a government-mandated wealth-transfer from the companies who actually innovated to the companies that failed to innovate.

Either way, if they no longer like the deal, the tech companies have never liked the deal and (most importantly) the public hates the deal... then why is the EU still pushing forward with it? Who actually still supports it, beyond the politicians in the EU? It's one thing to say that a true political compromise makes no one happy, but this is a case where everyone is fundamentally against the end result entirely.

So, please, European bureaucrats: let's just leave Article 13 in the trash pile where it belongs.

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Posted on Techdirt - 18 January 2019 @ 3:14am

Latest EU Copyright Directive Still Demands Internet Companies Wave Magic Wands

from the this-is-not-how-you-regulate dept

The EU Copyright Directive continues to be a total and complete disaster. It's so bad that neither of the two main groups lobbying around it -- the legacy entertainment industry and the big tech companies (with the vast majority of the lobbying coming from the copyright sector) are both unhappy with the bill (though for opposite reasons). And yet, despite all of this, the EU continues to soldier forward with a new proposal and a new draft that still requires that internet companies do the impossible:

The specific suggestions being pushed in the revised Copyright Directive suggests that whoever is putting this stuff together still has no idea what they're talking about. There's an attempt at fixing Article 11 (the snippet tax) not by actually fixing it, but at least making sure that it doesn't apply to "individual words or very short extracts."

The rights referred to in the first subparagraph shall not apply in respect of uses of individual words or very short extracts of a press publication.

What does "very short extracts of a press publication" mean? Well, we'll have to see what courts think of it after extensive litigation, I guess.

More importantly, Article 13 remains an utter mess where they still think that internet companies can just wave a magic wand and suddenly they will stop all infringement without also taking down non-infringing content. The text still pushes for online platforms to have to take out licenses for everything -- and on the question of takedowns of stuff that isn't actually infringing, it just says "don't do that":

The steps taken by the online content sharing service providers should be without prejudice to the application of exceptions and limitations to copyright, including in particular those which guarantee the freedom of expression of users.

Users should not be prevented from uploading and making available content that they have produced and that contains existing works or other protected subject matter for specific purposes of illustration or parody when these uses do not create significant harm to rightholders.

First of all... how is that even possible to do these things without running afoul of the other parts of the law? The bureaucrats don't say because they don't understand any of this. Second, this new text basically only says that this applies to "parody" or when the uses "do not create significant harm to rightsholders." But, who determines that? We've seen rightsholders go nuts over all sorts of uses that wouldn't create actual harm (in some cases that would lead to more revenue). All of this is just left up to the idea that internet companies will magically figure out what's okay and what's not.

As the EFF notes in a thorough post, so much of Article 13 is really the EU putting out vague statements about what should be allowed and what should not be allowed, without any notion of how that'll work and then saying you two giant industries figure this mess out. Indeed, as scholar Annemarie Bridy pointed out recently in a wonderful (if terrifying) tweet storm, the entire Article 13 appears to be based on a model of the world that isn't accurate -- one where there are just a few internet companies negotiating with just a few content companies:

The whole thing remains an utter disaster that is moving forward even as no one is left who really seems to support it. The public doesn't want this shit. The big entertainment companies are now asking for Article 13 to be set aside. The big internet companies have always been against it. And yet it rolls ever forward, with a bunch of clueless, technically illiterate bureaucrats basically saying "well, if we just say big companies should do this without allowing any negative consequences to happen, surely they can figure it out..." and tossing it over the fence.

This is not how sane policy is made. This is how you fuck up the internet.

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Posted on Techdirt - 17 January 2019 @ 12:22pm

How The GDPR Is Still Ruining Christmas

from the privacy-what? dept

Late last year, I wrote about how the GDPR almost ruined Christmas in one German town, where it was determined that the annual tradition of kids putting their wishes on a tree in the center of town (to be fulfilled by local town officials) would violate the GDPR. Some people did figure out a "workaround" involving some pointless bureaucracy in getting parents to first sign "consent" forms to allow the town to do the same thing they've always done for years without a problem.

However, now we have another story of the GDPR ruining another Christmas tradition in a different way. This tradition? Taking back the awful presents people give you that you don't actually want. At least some retailers are telling people that doing so under the GDPR requires them to inform the original purchaser that you really didn't like their gift:

While the pilgrimage to take back garish jumpers and superfluous socks is a new year's tradition as familiar as taking down the Christmas tree, data rules now oblige internet retailers to tell a buyer when an item they have bought is returned - regardless of whether it was a gift.

In some cases, companies are warning customers that they should inform the gift-giver themselves that they are making the return - before the company has to let them know.

In one instant, a father returning a child's coat to Boden was told that the original buyer would be informed 'due to data protection regulations'.

I'm sure some can try to spin this as a way of forcing people to be a bit more honest about not liking the awful sweater their dear old aunt bought them for the holidays, but, really... how exactly is this protecting anyone's "data"? If anything, it seems to be violating more people's privacy in revealing what they do with the crap presents they never wanted in the first place.

The article notes that not all retailers are doing this, but it does appear many believe it's necessary:

Eleven of the 30 retailers approached by The Mail on Sunday said they would have to inform buyers if gifts they had bought were returned.

The article does quote some "data protection" officials saying that retailers don't need to do this, but at the very least it highlights the same thing we keep pointing out about the GDPR and other attempts to regulate the internet. When these grand sweeping regulations are written in ways that are so vague and broad -- with such massive punishment for getting things wrong -- no one should be surprised when the end result is utterly ridiculous.

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Posted on Techdirt - 17 January 2019 @ 3:28am

Why Does Everyone Else Want To Stop Netflix Password Sharing, When Netflix Is Fine With It?

from the silly-people dept

I'm not quite sure why everyone is so obsessed about the "problem" of Netflix password sharing, even though Netflix itself is fine with it. For a few years now, we've noted that Charter Spectrum's CEO Tom Rutledge never misses an opportunity to scream about how awful it is that HBO and Netflix have to deal with people sharing passwords, even though the CEOs of both companies have made it clear that they're fine with it as it tends to act as free promotion to get people to sign up for their own accounts over time. Here's HBO CEO Richard Plepler from a few years ago:

"It’s not that we’re unmindful of it, it just has no impact on the business,” HBO CEO Richard Plepler said. It is, in many ways, a “terrific marketing vehicle for the next generation of viewers,” he said, noting that it could potentially lead to more subscribers in the future. “We’re in the business of creating addicts,” he said.

And here's Netflix CEO Reed Hastings at CES three years ago:

"We love people sharing Netflix," CEO Reed Hastings said Wednesday at the Consumer Electronics Show here in Las Vegas. "That's a positive thing, not a negative thing."...A lot of the time, he said, household sharing leads to new customers because kids subscribe on their own as they start to earn income.

Given that, you'd think that (1) a company would think twice about using CES this year to declare that it had a "solution" to the "problem" of Netflix password sharing, and (2) that press outlets like The Independent and Slashdot wouldn't just repeat that company's talking points.

Basically, some company claims it has an AI solution that can "detect" when someone is likely password sharing. To be honest, it's probably not "AI" so much as "oh look, this person is logging in from different IP addresses that appear to be in different locations too closely together" which pretty much anyone -- including the programmers at Netflix and HBO -- could code up in a weekend or so if they wanted to.

Incredibly, the Independent piece repeats claims of "losses" from password sharing that are complete bunk:

Separate figures from research firm Parks Associates predicts that by $9.9 billion of pay-TV revenues and $1.2 billion of revenue from subscription-based streaming services will be lost to credential sharing each year.

Except, that assumes that everyone using a shared password would otherwise buy, which is ludicrous. And, again, the companies whose actual existence depends on this, both insist that it's not having any impact, other than acting as free marketing for them to later sign people up long term. Incredibly, the reporter at the Independent includes that bogus "study" and other quotes about how password sharing is "too expensive to ignore," but doesn't bother to check to see HBO or Netflix's opinion of whether or not this is actually a problem.

It really is a shame that so many people automatically default to the idea that people sharing access to content must automatically be "a problem" that must be "stopped." The companies who dominate this space don't see it as a problem, and just because some company's PR team got the ear of a reporter, that doesn't change reality.

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Posted on Techdirt - 16 January 2019 @ 12:18pm

Google Shows What Google News Looks Like If Article 11 Passes In The EU Copyright Directive

from the bye-bye-news-content dept

While much of the focus concerning the EU's Copyright Directive have been about Article 13 and the censorship and mandatory filters it will require, an equally troubling part is Article 11, which will create a "snippet" tax on anyone who aggregates news and sends traffic back to the original sites (for free) without paying those news sites. This is dumb for all sorts of reasons, not the least of which is that this plan has been tried in both Germany and Spain, and failed miserably in both places. Indeed, studies in Spain showed that this law actually did tremendous harm to smaller news sites (which the EU insists this law is designed to help). The latest version we've seen in the EU Copyright Directive is even worse than the laws in Germany and Spain in that it is so vague and so unclear that it is possible to read them to say that using more than a single word will make the aggregator liable for the tax.

In Spain, as you may recall, when that law was passed, Google responded by turning off Google News in Spain entirely, saying that it was impossible to remain in the country under that law. As they noted (and which everyone pushing for these laws always ignores), Google actually doesn't put any advertisements on Google News. It's not monetizing it (despite lies from supporters of these laws that Google is "profiting" off of their work, when Google is actually sending traffic for free). So there were some questions about what Google would do with Google News in Europe if Article 11 becomes law.

The company has now hinted at its plans by leaking a beta test of what Google News would look like under Article 11. The answer? It would look almost entirely empty:


As you can see, because the tax applies to using any words from the articles, what a "compliant" Google News looks like is a Google News page where none of the content actually loads. All you get is the names of the publications and nothing else.

Of course, this is going to infuriate supporters of Article 11, who will insist that this is awful and some terrible game that Google is playing. But it's their own fault for writing a law that says this is what you have to do. Supporters will again argue that this is not what they intended -- instead, the whole point of Article 11 is to try to force Google to "license" the news it links to. But these leaked screenshots more or less highlight how the EU Copyright Directive is truly little more than a shakedown of Google. Basically, the entire point of the law is "Google, give money to failing newspapers, or we'll force your News site to look like shit." And Google is suggesting it might just call the EU's bluff on this.

At the very least, this makes it clear that the entire point of the EU Copyright Directive -- especially Articles 11 and 13 -- are a weak attempt to say "Google is successful, therefore, Google should give a lot more of its money to companies that haven't been successful in the internet age." If the EU just named it "the tax Google because our own industries failed to innovate" Directive, it would at least be a bit more intellectually honest.

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Posted on Techdirt - 16 January 2019 @ 10:45am

Reminder: You Still Have The Rest Of January To Enter Our Public Domain Game Jam

from the gaming-like-it's-1923 dept

Gaming Like It's 1923: The Newly Public Domain Game Jam

As we mentioned earlier this month, in celebration of the fact that the US finally has allowed older works to enter the public domain again, after a very long hiatus, we're hosing a public domain game jam, encouraging people to create games (video games, tabletop games, LARPs, storytelling games, whatever) using newly public domain material. What good is a public domain if people aren't using it and building amazing new works with it? We've already seen some copyright maximalists -- who worked hard for years to prevent such works from entering the public domain -- mocking the excitement many of us have for finally seeing works entering the public domain (one of whom wondered why anyone would still care about works from 1923, which is infuriating, given their role in keeping those works away from the public domain). So, let's prove them wrong and build some amazing new works.

We're halfway through the month of January, and we already have five amazing entries, all building on newly public domain material. We were expecting people to most likely wait towards the end of the month to submit, so already having so many entries is a great sign. But, it also means that there's plenty of time for you to come up with a game as well. On the game jam page we have some pointers/guidelines and links to many of the newly public domain materials.

We also have an all-star panel of judges, from both the gaming and the copyright law worlds, and we're offering copies of our (public domain) CIA: Collect It All card game (or some of our copyright-themed t-shirts) as prizes for the best games in a variety of different categories. Even if you've never designed a game, now's your chance. Part of the idea behind a short-term "game jam" like this is that it encourages people to make something quick and get it out there for testing and improvement. We're excited about the submissions that have already come in, but just as excited to find out what else you guys can come up with over the rest of the month.

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Posted on Techdirt - 16 January 2019 @ 3:23am

Amazon Dash Buttons Ruled Illegal In Germany For... Making It Too Easy To Buy Stuff

from the can't-have-any-of-that-now dept

You can count me among those who don't see the value in those Amazon Dash buttons that got plenty of attention a few years back, allowing those who had the little single-button devices to re-order some consumable product with the push of a single button. Even if lots of people made fun of them at launch, Amazon has expanded them to many more brands. So, even if I don't see the value, it appears plenty of people do. Except, in Germany, they're now illegal, because apparently some people are upset that they make things too easy to order.

The ruling came after a regional consumer protection watchdog brought a case against Amazon, arguing that the Dash buttons violate laws that say shoppers should know what they are paying at the time of any transaction.

“We are always open to innovation. But if innovation means that the consumer is put at a disadvantage and price comparisons are made difficult then we fight that,” Wolfgang Schuldzinski, head of the consumer body, said in a statement.

Huh? If users decide to buy a button that lets them reorder, then... what's the problem here. Yes, they may end up paying more than other retailers, but it's the consumers who are making that decision, suggesting that they value the convenience more than the ability to hunt for the best deal.

This fits with other European legal trends, in which courts and regulators really don't seem to think the public ought to be able to make any decisions themselves about what they prefer online, and must be "protected" from their own decisions. What, exactly, is the benefit here? How are consumers better off if the solution they appear to want, which they had to pay for, is no longer considered legal?

I could (maybe?) understand if the argument was that Amazon was somehow leveraging its market position to push people into using these things, but I've seen no evidence that that's true at all. Indeed, I basically forgot these little buttons existed after hearing about them at launch. I get that European courts (and German ones, in particular) like to think they're protecting consumers more than the US, but in this case it makes no sense. If consumers feel ripped off by the buttons, they won't buy them (or they'll stop using them). Why do we need a court to make them illegal?

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Posted on Techdirt - 15 January 2019 @ 10:47am

Hollywood Asks EU To Drop Article 13 Entirely, Because It Might Possibly Have A Tiny Compromise For The Internet

from the going-for-broke dept

Earlier today, we had a post detailing the completely ridiculous "defense" of Articles 11 and 13 in the EU Copyright Directive that the EU Parliament's JURI Committee released. It was so full of misleading statements, outright lies, and contradictory arguments that it would have been hilarious, if it wasn't trying to justify changing the entire internet for the worse. However, those of us who think that the EU should drop Article 13 (and Article 11) entirely now have a very unlikely ally: the legacy entertainment industries, who were the ones lobbying heavily for Article 13 in the first place.

Really.

As we had noted last month, as the negotiations moved forward on Article 13, the TV, sports and film industries -- calling themselves the "creative sectors" -- have been suddenly freaking out and asking the negotiators to hit the brakes, or at least carve them out of Article 13. They were doing this for all the wrong reasons of course. Specifically, negotiators had begun to consider a very, very limited (and ridiculously weak) safe harbor for internet platforms, that if they followed a few key steps, they'd be able to avoid having massive liability foist upon them if they let any users sneak through an upload of infringing content (they'd still have to pull it down quickly after it was uploaded, but they wouldn't be facing billions in fines).

And, now with Article 13 just about finalized and it looking absolutely terrible in almost every single way... Hollywood is going for broke and now calling for negotiations on Article 13 to be suspended entirely. Again, they're doing this for totally the wrong reasons, but considering that absolutely no one wants Article 13 at this point, shouldn't EU negotiators just drop it?

We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article.

We agree. Negotiators should drop Article 13 entirely (Article 11 as well, but we'll discuss that another time).

This letter is signed by a bunch of legacy copyright interests, with the main one being the MPA (the MPAA's international arm). And their reasoning, as before, is that they actually think that they're going to get a better deal (i.e., no safe harbors for internet services at all) in the EU Courts:

One of the main justifications for Article 13 articulated in the Commission’s original impact assessment back in 2016 was the absence of a CJEU referral that could bring clarity to the question of whether an uploaded content service is responsible for acts of communication to the public and/or can benefit from the hosting provider status under the E-Commerce Directive. Since that assessment the situation has now fundamentally changed. In the meantime, such a referral has been launched by a recent decision of 13 September 2018. The German Federal Court of Justice (Bundesgerichtshof) referred a case to the CJEU involving YouTube/Google and certain rightholders, for clarification of this very issue (case C-682/18 Google e.a.).

Basically, Hollywood and its friends pushed for Article 13 when they thought that courts had read the law (correctly) to mean that the safe harbors already existing in the E-Commerce Directive applied to internet platforms hosting user generated uploads of content. However, at least one German court has mucked that up, and that case is being reviewed by the EU Court of Justice... and Hollywood is hoping that the CJEU will just declare that these safe harbors don't apply for platforms hosting content. Basically, Hollywood is going for broke. It truly wants to make the internet change massively, such that there is no more "user generated content" platforms unless those platforms first agree to throw money at Hollywood not to sue them. It's pretty close to an outright extortion scam.

Either way, we're happy that Hollywood has now properly recognized that EU negotiators have no business moving forward with Article 13, and we're happy to agree that it should be dropped.

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Posted on Techdirt - 15 January 2019 @ 3:24am

EU Parliament Puts Out Utter Nonsense Defending Copyright Directive

from the oh-come-on dept

The Legislative Affairs Committee (JURI) in the EU Parliament, who are in charge of pushing through the EU Copyright Directive put out a "Q and A" page about the Copyright Directive in the lead up to the next round of trilogue negotiations between the Parliament, the EU Council and the EU Commission. As you may recall, when we left things, everything was at a standstill with no one willing to agree on anything. Some are suggesting even worse proposals than have been seen before. The record labels and movie studios are threatening to drop their support of the bill if the EU actually gives incredibly minor "safe harbors" for internet platforms. The whole thing is a mess, and the easiest thing to do would be to just drop Articles 11 and 13 and focus on cleaning up the rest of the Directive. But that's not what's happening.

Negotiations have continued in the background, and where things stand now, the EU is going to fundamentally change how the internet works and not in a good way. They have basically agreed that internet companies will be liable for what users post -- in direct contradiction of current EU law found in the E-Commerce Directive. This will mean filters will become effectively mandatory (in a bit of hilarious theater, the agreement says it does not require filters... but there is literally no way to comply with the law without filters). Very, very, very, very limited safe harbors are still being negotiated over, and are "at risk" of being dropped altogether. Ditto a provision that will make the rules not apply to smaller platforms. Also, still on the table is a "notice and staydown" proposal that says if something does get through, platforms can never let it through again (how this will handle situations where one copy is infringing and another is non-infringing is ignored entirely).

So, as the push moves into the final rounds, JURI has decided that if it can't win this argument on facts, it's just going to flat out lie to the public. Let's dive in:

The proposed "Directive on copyright in the Digital Single Market" seeks to ensure that artists (especially small ones, for example musicians), and news publishers and journalists benefit from the online world and the internet as they do from the offline world.

What? There are more "small" musicians and journalists (waves hands!) making money today thanks to the internet, and these plans will completely kill the internet for us. There are more people making music today than ever before. Nothing in this bill is designed to actually help musicians or journalists. It is designed to help lock down the internet for a few giant record labels and news publishers.

Currently, due to outdated copyright rules, online platforms and news aggregators are reaping all the rewards while artists, news publishers and journalists see their work circulate freely, at best receiving very little remuneration for it. This makes it very difficult for artists and media professionals to earn a decent living.

This is utter nonsense. The proposal (Article 11) for online journalists (really: publishers) has already been tried in Germany and in Spain, and it failed in both places (in fact, in Spain, a study showed that it did a lot of harm to smaller publications).

As for musicians, it's never been a better time to be a musician. There are all sorts of ways to monetize, including on services like Kickstarter and Patreon, or on Spotify or Apple Music. Building audiences online has helped numerous musicians build up strong followings, and even created new opportunities for touring. There is no evidence at all that "online platforms and news aggregators are reaping all the rewards." That is a complete and total myth. What JURI is really talking about are exactly two platforms: Google News and YouTube. Google News doesn't run any ads in most locations, so it's not "reaping all the benefits," it's sending lots of traffic to news sites. For free. YouTube, meanwhile, is paying out tons of money to artists who choose to put their music on the site, and has already instituted the most advanced filter of its kind to stop infringement (and it's terrible).

So, how exactly do these laws make anything better? Snippet taxes have already been shown not to work, and the one platform that musicians are upset about, already has the most sophisticated filter on the planet, and it still sucks and causes a ton of collateral damage.

Can anyone at JURI explain how any of this helps small musicians and artists in a manner that doesn't involve "and then we wave the magic wand and Google just forks over cash"?

It is important to point out that the draft directive does not create any new rights for artists and journalists. It merely ensures that their existing rights are better enforced.

This is so misleading that it's extremely close to being an outright lie. It does not create any new rights for "artists and journalists." But it absolutely does create massive new rights for "record labels and news publishers." Notice how that's different? This is a pretty amazing scam by JURI, though, to first argue this is about helping artists and journalists, then claiming it creates no new rights for them, while ignoring that it does create those new rights for the gatekeepers who have a long history of screwing over musicians and journalists.

Nor does the draft directive create new obligations for online platforms or news aggregators. It merely ensures that existing obligations are better respected.

This is an outright lie. It creates massive new obligations for online platforms -- including having to license works that their users upload (which has never been required before) or to install expensive, faulty, censorship filters. There is nothing in there about "better respecting obligations." It is creating huge new obligations. Obligations that will be impossible for nearly every internet platform to meet.

What is currently legal and permitted to share will remain legal and permitted to share.

This, too, is incredibly malicious and deceptive. Yes, what is currently legal for users to share will remain legal. But no online platform will allow for it, because of the massive legal liabilities created by this Directive.

Notice how this JURI defense of Articles 11 and 13 keep shifting who they're talking about. There are multiple parties at stake here: end users, content creators, the legacy middlemen (publishers, record labels, film studios, etc.), and internet platforms. The Q&A conveniently keeps switching between them to try to make points about one while pretending it's debunking claims about others. People are concerned about it creating new rights? Just say it doesn't for artists and journalists (ignoring that it is creating those rights for publishers and labels). People are concerned about being able to share memes? Just say those things are still legal (ignoring that platforms will be required to block them all or face crippling fines).

The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and journalists) what they truly owe them;

Hey JURI: Literally two sentences earlier you insisted there were no new obligations for online platforms or news aggregators. Then two sentences later you flat out say that the directive "intends to oblige giant internet platforms" to do something they haven't done before. YOUR OWN DEBUNKING DEBUNKS ITSELF.

Furthermore "pay content creators what they truly owe them"? According to whom? And, again, with Article 11 we already know that it created no new revenue in Spain and Germany, so why lie and pretend this will make any difference there?

No new rights or obligations are being created.

Guys. Literally in the previous sentence you admitted to new obligations on internet giants. Remember that? Who is writing this propaganda?

The draft directive does not target the ordinary user.

There's that switcheroo again. Of course it doesn't target the ordinary user. It just will have a massive impact on the internet they rely on for all kinds of community and conversation.

By contrast, the draft directive will impact large online platforms and news aggregators like Google's YouTube, Google News or Facebook, making it essential for them to correctly remunerate artists and journalists whose work they monetise

And it will do this by stopping "ordinary users" from sharing the kind of content they're used to sharing. This is such an obnoxiously disingenuous tap dance by JURI. EU Citizens should be up in arms about this.

Large online platforms and news aggregators will have more reason than currently is the case to strike fair remuneration (licensing) agreements with artists and media houses who would have identified themselves beforehand as the owners of a piece of work.

Why? There is nothing in the directive that says that. Most platforms will have less incentive to do anything in the EU at all.

A platform or news aggregator will be further incentivised to strike such agreements because, in the absence of them, it would be directly liable if it hosts a piece of work with an unpaid licence fee.

Right. That's why it will censor the fuck out of their platforms. Because you are putting new obligations on those platforms, something you keep denying (while admitting it in the next breath).

The expectation is that the draft directive will push the online platforms/news aggregators to finally roll out a policy to fairly remunerate all those from whose work they make their money.

Again, this has been tried with Article 11. And it didn't work. Why is there this expectation that something you tried twice already and failed with will magically work the third time?

Freedom on the internet, as in the real world, will continue to exist as long as the exercise of this freedom does not restrict the rights of others, or is illegal. This means that a user will be able to continue uploading content to internet platforms and that these platforms/news aggregators will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration.

Except that "fair remuneration" is a concept that you are making up. There is already fair remuneration. That's why more people are making more money from music today than ever before. It's why my own damn company exists. "Fair" remuneration is what the market says is fair. What this is attempting to do is not "fair" at all.

Currently, the online platforms/news aggregators remunerate creators on a voluntary basis and only to a very limited degree.

WHAT?!? This is utter nonsense, and if folks running JURI believe this, they are far more disconnected from reality than before. It is not at all "voluntary." All of the big platforms pay as required by law already. They have negotiated contracts and they all work to block infringing content.

The draft directive will not be the source of censorship. By increasing legal liability, the draft directive will increase pressure on internet platforms/news aggregators to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.

This, again, is nonsense. Yes, it is censorship. Anyone who claims that "increased pressure" on platforms by making them liable for content on those platforms doesn't lead to censorship knows literally nothing about how online intermediary liability works, and all of the censorship it has already created. Again, JURI doesn't know what it's talking about or is lying. This is bad.

The draft directive sets a goal to be achieved - An online platform/news aggregator must not earn money from material created by people without compensating them. Therefore, a platform/news aggregator is legally liable if there is content on its site for which it has not properly paid the creator. This means that those whose work is used illegally can sue the platform/news aggregator.

The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters.

Once again, this is utter bullshit. You can't let anything infringing on your platform... but we don't say you need to use a filter. Um. How do you block infringing content if you don't have a filter? Who knows? It's "up to you."

However, if large platforms/news aggregators do not come up with any innovative solutions, they may end up opting for filters. Such filters are already used by the big companies!

Wait. Earlier in this Q&A you said that this was all about getting the large platforms to meet these new obligations. Now you... point to the fact that they already are as proof that... there's no new obligation? What? And... if I'm reading this correctly, you make it sound like this is actually targeting smaller platforms that don't have these filters. And, yet you expect them to come up with magical mystical "innovative solutions" if they don't want to filter.

Oh, and here's the real kicker:

The criticism that these sometimes filter out legitimate content may at times be valid. However, this criticism should be directed towards the platforms/news aggregators designing and implementing them, not to the legislator who is setting out a goal to be achieved

Got that? We're demanding that companies do the impossible, even though the most sophisticated attempt at this already shows that it's impossible, don't blame us, the regulators, for demanding the impossible. We're just "setting out a goal to be achieved." What kind of regulator thinks it's appropriate to require the impossible, and, when people point out it's impossible, to shrug your shoulders and blame those who can't achieve the impossible?

A meme falls under the generic rights of ‘citation/quotation’ and ‘parody’. The citation and parody rights are not covered by the draft directive. The draft directive deals with the liability of platforms for works protected by copyright.

This is more disingenuous nonsense. There is no way for a filter or any other magical solution to determine that something is a meme or parody. It will get blocked. There are no exceptions in the directive for "citation/quotation." Indeed, the latest draft still has the possibility of "notice and staydown," meaning that even if it was used for parody of "citation/quotation" platforms wouldn't be allowed to host it without facing massive liability (or licensing work that legally doesn't need to be licensed).

The draft directive has been the subject of intense campaigning. Indeed, some statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before (such as telephone calls, emails etc.). The companies to be most affected by the directive have multi-billion dollar yearly revenues (for example Google’s revenue for 2017 was $110 billion and Facebook’s was $40.7 billion).

Such wide-ranging campaigning generally does lead to impressive claims snowballing; there are claims that the draft directive risks “breaking the internet", or "killing the internet". Since the draft directive does not confer any new rights on creators, nor impose new obligations on internet platforms/news aggregators, such claims seem excessive.

This is also bullshit. We went through the stats ourselves last month, and it showed that over 80% of the lobbying on the Copyright Directive came from legacy copyright industries such as the big entertainment companies and publishers. To claim that the pushback on these plans is due to an aggressive lobbying campaign from Google and Facebook is pure propaganda with no basis in reality. The public is pissed because the public knows how they use the internet, and they know what this law will do to their ability to use it the way they want.

Although the draft directive is aimed at helping all creators have a stronger bargaining position on how their work is used by online platforms, the main beneficiaries will be the smaller players. Larger players often have law firms to safeguard their rights, whereas smaller ones currently have little means to support them.

The smaller players only exist because of the open internet. These bills will literally kill smaller internet platforms in Europe too, because it will be impossible to comply, and the fines will be unsustainable. Meanwhile, again, the internet has enabled so many creators to create and make money... and it did so by enabling all of these different platforms that are about to be body slammed by this ridiculous bill pushed for by cynical opportunists and internet-illiterate policy makers.

It has been claimed that the directive will have a profoundly negative impact on the livelihood of hundreds of thousands of people...

The contrary is more likely to be the case: the draft directive’s intention is to help provide numerous people with the livelihood they deserve for their work, and which they require to continue creating. The draft directive intends to ensure that more money goes to artists and journalists rather than Google’s shareholders, a transfer of resources that is always beneficial to jobs.

Again, this makes no sense and is literally contrary to what has happened when the Google tax was tried in Spain.

Is Article 11 going to create a tax - to be more precise a tax payable when a news article is shared?

No. The EP wants to ensure that some money goes from multi-billion dollar news aggregators to the journalist who has done all the hard work writing up an article. These articles, it should be stressed, often dig up the truth and contribute enormously to upholding a democratic system. This cannot be considered a tax.

Again, this did not ensure that money went from Google to journalists in Germany or Spain, and it says nothing about journalists. If the link tax is paid, then it goes to the publishers, not the journalists doing "all the hard work." In the meantime, some journalists (waves hand!) want sites like Google News and Facebook to promote our stuff. I don't need them to pay me. I want them to drive traffic. It's MY responsibility to figure out how to make money off of that traffic.

Besides if -- as in Spain -- this leads Google News to leave the EU, then how the hell does that "help" journalists?

This entire thing is utter nonsense. It's either outright lies or deceitful misrepresentations. This is a Trumpian level of propaganda and bullshit, being pushed by the EU Parliament on behalf of the legacy copyright industries. The people of the EU should not stand for this kind of thing from their elected officials. Remember, nearly all of the lobbying on this issue has come from one side -- and it's not the side that JURI claims is pushing the narrative. Don't let Hollywood get away with this nonsense.

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Posted on Techdirt - 14 January 2019 @ 12:18pm

Government Shutdown Means Government Website Security Certs Aren't Being Renewed

from the it's-the-little-things dept

With all the news about the ongoing government shutdown and the big messes it has caused, it's creating lots of little messes with potentially big impact as well. For example, scammers and robocallers have upped their game during the shutdown, knowing that (1) there's no one investigating these scams right now, and (2) as I discovered when I tried to report one, the FTC has literally shut down the web portal where you used to be able to submit complaints.

Another one, however, pointed out last week by Netcraft, is the fact that government website security certificates are expiring... and there's no one around to renew them:

Dozens of U.S. government websites have been rendered either insecure or inaccessible during the ongoing U.S. federal shutdown. These sites include sensitive government payment portals and remote access services, affecting the likes of NASA, the U.S. Department of Justice, and the Court of Appeals.

With around 400,000 federal employees currently furloughed, more than 80 TLS certificates used by .gov websites have so far expired without being renewed. To compound the situation, some of these abandoned websites can no longer be accessed due to strict security measures that were implemented long before the shutdown started.

As Netcraft notes, some of those sites you can't even get around the security warning, such as certain DOJ sites:

In a twist of fate, the usdoj.gov domain — and all of its subdomains — are included in Chromium's HSTS preload list. This is a prudent security measure which forces modern browsers to only use secure, encrypted protocols when accessing the U.S. DoJ websites; however, it will also prevent users from visiting the HTTPS sites when an expired certificate is encountered. In these cases, modern browsers like Google Chrome and Mozilla Firefox deliberately hide the advanced option that would let the user bypass the warning and continue through to the site.

There are some government websites that you can click through on, but as Netcraft notes, this could allow for man-in-the-middle attacks or other security risks:

This introduces some realistic security concerns, as task-oriented users are more likely to ignore these security warnings, and will therefore render themselves vulnerable to man-in-the-middle attacks.

If the shutdown continues for a while, this problem could get significantly worse. I know that Wall Street put pressure on the government to make certain IRS employees suddenly deemed "essential" to help Wall Street keep functioning smoothly, perhaps someone might want to deem the people renewing security certs similarly essential? Or, you know what, maybe just re-open the damn government.

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Posted on Free Speech - 14 January 2019 @ 9:33am

Pakistan Demands Google Take Down Petition For Academic Freedom... Saying It Represents Hate Speech

from the hate-speech-used-for-censorship dept

While it's understandable (these days especially) that some are concerned about what they refer to as "hate speech," it's worth reminding people (as we've done for years) that laws against hate speech are almost universally used by governments to punish people they don't like, rather than to protect those who most people normally consider the targets of hate speech.

Take this latest example, highlighted by FIRE, concerning an attempt by Pakistan to censor an online petition for academic freedom, claiming that it was hate speech.

The request came from the Pakistan Telecom Authority, which cited Section 11 and Section 37 — which lay out restrictions on “hate speech” and “unlawful online content” — of Pakistan’s 2016 Prevention of Electronic Crimes Act

11. Hate speech—Whoever prepares or disseminates information, through any information system or device that advances or is likely to advance interfaith, sectarian or racial hatred shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.

[ . . . ]

  1. Unlawful on-line content—l) The Authority shall have the power to remove or block or issue directions for removal or blocking of access to an information through any information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence under this Act.

So what is this horrible hate speech? It's a letter about academic freedom and free speech on campus signed by a bunch of Pakistani and American academics. The letter documents a few examples in Pakistan of attacks on academic freedom:

As faculty members and teachers, we are extremely concerned about the events that have taken place over the last few days at universities across Pakistan, which signal a closure of intellectual space within the country. Between April 12th and 13th four separate but related instances of repression took place on university campuses in different parts of the country.

In the first instance, an event entitled ‘Ethnic Rights, New Social Movements, and the State of the Federation in Pakistan,’ which was supposed to be held at Habib University in Karachi on April 13th was forcibly cancelled only an hour before the event was due to be held after a visit from state functionaries. This event was intended as a teach-in and panel discussion in which various new social movements emerging across the country would be analyzed and discussed by experts from the field. Not only was the event abruptly cancelled, one of the guest speakers was forced off campus by the university security despite the fact that it was the university that had invited him in the first place.

In the second instance, an event that was planned to be held at the Lahore University of Management Sciences, also on April 13th, which was a commemoration of the student who was brutally murdered by a mob one year ago at Abdul Wali Khan University, Mashal Khan, was also forcibly cancelled on the same day the event was due to be held. This event was planned in order for students to come together and mourn the loss of a fellow student who dedicated his short life to raising his voice in the struggle for peace and justice.

That doesn't seem to be hate speech, now, does it? So, once again, we have "hate speech" rules being used in an attempt to punish people the government doesn't like.

This, of course, is not a defense of "hate speech," but this pattern is undeniable. The nature of hate speech is such that it is frequently used by the powerful against marginalized groups. And, by definition, marginalized groups are rarely in power in the government, so it frequently does little to actually protect such groups. However, when there is no real definition of "hate speech" and it is quickly turned into "anything we don't like," it enables powerful governments to silence and punish anyone.

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Posted on Techdirt - 11 January 2019 @ 2:44pm

Scooter Company Bird Sends Absolutely Bullshit Copyright Threat Letter To Cory Doctorow For Reporting On Modifying Scooters

from the someone-deserves-to-be-fired dept

Of all the stupid things a lawyer can do, it's difficult to think of many more stupid than to send a totally and completely bogus copyright infringement claim, arguing (incorrectly) a violation of DMCA section 1201 (the anti-circumvention part of the DMCA) to Cory Doctorow. Among many other things, Cory is one of the leading voices about the problems of 1201 and has fought for years to dismantle it. And thus a case that actually challenged 1201 might be interesting, but in this case, there's no valid 1201 case at all.

As explained in an EFF blog post, Bird, one of the bigger app-based scooter rental services out there, sent a completely bullshit "Notice of Claimed Infringement" to Doctorow and the parent company of Boing Boing, Happy Mutants. Over what? Over a BoingBoing post from last month that reports on how people are offering $30 conversion kits to turn a former Bird scooter into one that you yourself can use. Specifically, the article talked about how many Bird scooters were being impounded, and could potentially be sold off at some point to people who might want to convert one on the cheap into a personal electric scooter.

The letter--sent by Bird's "Sr. Corporate Counsel", Linda Kwak (whose experience appears to be focused on employment law, not copyright law)--makes a number of ludicrous claims. Thankfully, Doctorow and BoingBoing have EFF to back them up and respond forcefully to this kind of threat, with a response written by EFF senior staff attorney Kit Walsh. Here's a snippet:

First of all, Mr. Doctorow is well within his First-Amendment-protected rights to report on the existence of these conversion kits and their use. Mr. Doctorow’s article does not encourage any form of illegal conduct, but even if it did, the First Amendment does not permit liability based solely on encouraging others to break the law. Even in cases where a person advocates violent crimes, the First Amendment only permits that advocacy to be punished when it is intended to and likely to imminently cause the lawless act. E.g., Brandenburg v. Ohio, 89 S.Ct. 1827 (1969). The Boing Boing article falls far short of meeting any legal test that would allow a court to impose liability on its author, nor have you identified any basis for doing so. Mr. Doctorow would have had every right to advocate for Bird scooters to be destroyed or stolen; instead he simply reported that they could lawfully be acquired at auction and lawfully modified to function as personal scooters.

Second, you cite the anti-trafficking provisions of 17 USC 1201, alleging that the scooter conversion kits are circumvention devices that violate Section 1201, but that does not appear to be true. Again, Happy Mutants would have every right to report on unlawful conduct or even to encourage it, but here the conduct being described seems entirely within the law.

“Conversion kits” are apparently just replacement motherboards, such as the stock motherboard for the Xiaomi Mijia m365 scooter. Installing the “kit” involves opening the scooter, removing the motherboard containing Bird software, and replacing it with a part that does not contain Bird software. As you note in your letter, the kit “allows the user to replace the Bird code so that users may ride the Bird scooters without using its app.”

It is not an act of circumvention to unplug and discard a motherboard containing unwanted code. Likewise, a part that is used to replace the unwanted board is not a circumvention device -- it substitutes for the part containing proprietary code rather than circumventing technological protection measures that restrict access to the code or prevent infringement. Use of a conversion kit does not appear to involve any access, reproduction, or modification of any Bird code. We are likewise puzzled by your assertion that your copyright in the Bird app provides a basis for a Section 1201 claim against the conversion kits, since they do not appear to interact with the app at all. You have not claimed that the Boing Boing article itself constitutes trafficking, nor could you. It does not offer to sell or traffic in anything but rather reports true, newsworthy facts. Attempting to expand Section 1201 to bar such reporting would fatally exacerbate the First Amendment flaws already inherent in the statute. (Happy Mutants would also be fully within its rights to link to a site such as eBay where the kits can be purchased, but, contrary to your assertion, the article does not contain such a link.)

An assertion of Section 1201 is on especially shaky ground when it seeks to suppress activity that does not infringe copyright, such as fair uses. The Librarian of Congress, overseeing the Copyright Office, has repeatedly exempted from Section 1201’s circumvention ban the noninfringing repair and modification of motorized land vehicles (such as electric scooters), because barring those repairs and modifications would be unjustified and harmful to the public. Those repairs and modifications actually do involve circumventing access controls in order to inspect and modify copyrighted code, unlike the conversion kits at issue here, and they nonetheless are noninfringing, fair uses.

As Walsh further explains in the EFF blog post, this really is incredibly crazy, given all of Doctorow's work on 1201:

Bird probably did not know that the journalist who wrote the post, Cory Doctorow, has been reporting on and challenging this overly broad law and its harmful consequences, both at Boing Boing and as a Special Adviser on EFF’s Apollo 1201 project, for years. They likely also didn’t know EFF has launched litigation to invalidate the law in its entirety and, in the meantime, has successfully pushed for numerous exemptions to the law -- including one that specifically permits repair and modification of motorized land vehicles (for instance, say, an electric scooter).

As fun as it might have been (again... fun for us) to have a legal fight about the nuances of Section 1201, it's pretty clear here that there's no claim to be made. The fundamental reason Bird doesn't have a claim is that Section 1201's ban on trafficking concerns products that circumvent either access controls or use controls on a copyrighted work. To simplify a bit, it concerns a device that cracks a technological measure in order to access or make an infringing use of a copyrighted work.

To turn a Bird scooter into a regular personal scooter, you just open it up and replace the motherboard that contains Bird code with a different motherboard (you could even use the official stock motherboard for this model of scooter, the Xiaomi Mijia m365). You literally throw away the copy of the Bird code residing on the unwanted motherboard, rather than accessing or copying or modifying it. We have long had serious concerns that Section 1201 can be abused to block repair and tinkering. But while the law is overbroad, it is not so broad that it prohibits you from simply replacing a motherboard.

And, of course, all this really does is call that much more attention to Doctorow's original article, and the possibilities for effectively getting your very own electric scooter on the cheap. It is utterly bizarre that anyone at Bird thought this was a good idea. Who knows if this was just the Bird lawyer going through the motions or someone else at the company directing her to do this, but at some point, companies really need to think more carefully about sending out the usual bullshit nastygrams, as they can really come back to bite a company.

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Posted on Techdirt - 10 January 2019 @ 11:58am

Google Still Says Our Post On Content Moderation Is Dangerous Or Derogatory

from the sure-ok-whatever dept

Back in October, we wrote about how Google had declared -- with no details -- that an earlier post we had done was "dangerous or derogatory" and that it would no longer allow AdSense ads on that page. The real irony? The original post (which contains nothing dangerous or derogatory) was about the "impossible choices" platforms have to make when moderating speech on their platforms. So, what better example than "moderating" an article about how internet platforms will always be bad at content moderation.

We had requested a "review" of the designation when we first got it, and Google initially rescinded the decision, before reinstating it a few weeks later. We appealed again... and were rejected. That's when I wrote the article. Soon afterwards, some people from Google reached out to discuss what happened. As I've said all along -- and as I said directly to people at Google -- the company has every right to make these calls however they want. I certainly understand how it's impossible to craft reasonable rules that can be applied at scale without making "mistakes" (and I still maintain this is a mistake). My one request was that the company be a bit more forthcoming about why we were dinged, so that, at the very least, if there was a real issue, we could make a determination on our own about whether or not we agreed and if there was anything worth changing. I didn't get a response to that specific request and I can guess why: given how much content needs to be moderated, it would likely add significant overhead that probably isn't worth it for any "edge cases."

Either way, we left things alone. If Google doesn't want to put AdSense on that page, fine. Adsense pays next to nothing anyway. But, what's weird is that over this past weekend, Google decided to complain to us again about the same damn page. I had simply assumed that once we left things as is that page was on some sort of permanent "bad" list. But, for whatever reason, the company decided that it was urgent to alert us that the page they already (stupidly) called "dangerous and derogatory" was now being declared "dangerous and derogatory" once again. Because we got a new notification, I clicked the appeal button once again, and on Monday morning the company rejected our appeal. Again, that's Google prerogative, though it looks kinda silly. Why even bother us to tell us that this page you already decided (incorrectly) is a problem is still a problem? We're not changing anything, so just don't put ads on it and stop bugging us about it.

One other note on all of this: while the folks at Google (understandably) couldn't tell us why the story was dinged in the first place, they did note that it might be because of user comments -- and pointed me to this post about "managing the risk of user comments." What struck me as somewhat astounding about that article is that it is Google more or less taking the exact opposite stance it normally takes on intermediary liability. While Google (correctly) fights for intermediary liability protections in government policy around the globe, here it says that if you have any kind of user generated content on your site -- such as comments -- then you are responsible for that content.

First, understand that as a publisher, you are responsible for ensuring that all comments on your site or app comply with all of our applicable program policies on all of the pages where Google ad code appears. This includes comments that are added to your pages by users, which can sometimes contain hate speech or explicit text.

Knowing this, please read Strategies for managing user-generated content. Make sure you understand how to mitigate risk before you enable comments or other forms of user-generated content. Managing comments on your site pages is your responsibility, so make sure you know what you’re getting into. For example, you’ll need to ensure you review and moderate comments consistently so as to ensure policy compliance so that Google ads can run.

Obviously, there's some level of difference between being legally liable in court and just having ads taken off of your site. But it's pretty incredible to see Google using this kind of language when talking to smaller sites, telling them that they are responsible, and that they have to institute certain specific moderation schemes, while at the same time fighting vehemently against any effort by the government to impose similar restrictions on themselves regarding responsibility and content moderation. It feels... a bit hypocritical.

So, it is indeed possible that it's the comments on our page that keep getting us dinged -- there is one in particular that uses some "derogatory" words/phrases (though, incredibly, that comment is using that language in an effort to demonstrate a point about content moderation, rather than using them in a derogatory manner). And yet, we get dinged for it. We won't remove that comment, because there is no reason to.

But, in a way, this all highlights, again, the very mess we were describing in that original post: content moderation at scale is impossible to do well. You have to write rules that can be consistently applied by a large group of folks who have to review pages very quickly. So it's likely that somewhere in those rules is a prohibition on putting advertising next to certain "derogatory" words. That seems like a clearly drawn line... until there's a comment that isn't using those words in a derogatory manner, but rather to demonstrate questions about content moderation. But there's no exception written into the rules, and there's no allowance for taking the context into account (which would be impossible in its own right, because no reviewer is going to have the time to understand all the context).

Of course, it would be nice if Google just explained that to us, rather than just telling us that the page has derogatory content with no other details. But, what are you going to do... other than post another post about it?

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Posted on Techdirt - 9 January 2019 @ 12:01pm

There's One Encouraging Thought Buried In Zuckerberg's 2019 Challenge

from the some-potential dept

Every year Mark Zuckerberg sets a "challenge" for himself for that year, which as many people have noted, Facebook has turned into a big PR vehicle for the company. We usually don't even bother to write about it, because why bother? However, I'm intrigued by this year's "challenge" for a few reasons. The plan sounds fairly simple (and perhaps simplistic): he wants to host a series of public discussions about technology and society -- and about Facebook's role in it going forward:

There are so many big questions about the world we want to live in and technology's place in it. Do we want technology to keep giving more people a voice, or will traditional gatekeepers control what ideas can be expressed? Should we decentralize authority through encryption or other means to put more power in people's hands? In a world where many physical communities are weakening, what role can the internet play in strengthening our social fabric? How do we build an internet that helps people come together to address the world's biggest problems that require global-scale collaboration? How do we build technology that creates more jobs rather than just building AI to automate things people do? What form will this all take now that the smartphone is mature? And how do we keep up the pace of scientific and technological progress across fields?

My challenge for 2019 is to host a series of public discussions about the future of technology in society -- the opportunities, the challenges, the hopes, and the anxieties. Every few weeks I'll talk with leaders, experts, and people in our community from different fields and I'll try different formats to keep it interesting. These will all be public, either on my Facebook or Instagram pages or on other media.

This will be intellectually interesting, but there's a personal challenge for me here too. I'm an engineer, and I used to just build out my ideas and hope they'd mostly speak for themselves. But given the importance of what we do, that doesn't cut it anymore. So I'm going to put myself out there more than I've been comfortable with and engage more in some of these debates about the future, the tradeoffs we face, and where we want to go.

Not surprisingly, there has been plenty of mocking of this announcement, and perhaps some of it is deserved. Facebook had a bad year in 2018 for mostly deserved reasons. As we've discussed, the company tends to be its own worst enemy and many of its stupid decisions have done tremendous harm to the wider internet. Also it certainly appears that incompetent management, and conflicting priorities may very well be to blame for many of these mistakes. It deserves a wider discussion in another post, but one thing I've heard over and over and over again at this week's CES from other internet companies is how furious they all are at Facebook for making so many bad decisions and dragging everyone else down with them.

But, the reason I'm at least moderately encouraged by Zuckerberg's statement is that buried within it, he actually mentions a fairly radical idea that, admittedly, I've personally been pushing for years (including trying to suggest the idea directly to Zuckerberg), and that is that the big internet companies really should be moving to a world of protocols, backed by encryption, rather than being a full platform. The argument there, is that this moves the power and control out to the end users, rather than keeping it locked in a more centralized system. It also (conveniently) gets rid of many of the hard choices and policing requirements that are being lumped on the platforms themselves.

I've talked about this idea with tons of people -- including people at the various big internet platforms. And, frankly, the least receptive to the idea in the past has been Facebook. And, yet, buried in Zuckerberg's announcement was this bit:

Should we decentralize authority through encryption or other means to put more power in people's hands?

That's... exactly what I've been suggesting all these years. Obviously, just asking the question doesn't mean that anyone at Facebook is taking the question seriously. But, at the very least, I'm encouraged that this concept is even on Zuckerberg's radar -- and enough so that it was worth including in his short announcement. I'd still be shocked if Facebook really does go down this road, but it's at least a positive sign that Zuckerberg considers it an idea worth thinking about. And while it may be fun to mock Zuckerberg or make wild claims about his motivations and plans, when he actually suggests something that would put more power in the hands of users and remove that power from Facebook, we should probably be encouraging that kind of thing rather than mocking it.

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Posted on Free Speech - 8 January 2019 @ 10:50am

Producers Of Movie About Falling In Love With Nazis Using DMCA To Silence Criticism

from the dmca-for-censorship dept

Apparently the producers of the movie "Where Hands Touch," which is being widely panned as terrible (NY Times calls it a "gut-wrenching misfire" and notes "by the end of the movie, my jaw felt unhinged from dropping so often."), aren't responding well to the criticism. While some of the criticism is about the "plodding" storyline, much of it is about the main plot, which is about a black woman in Nazi Germany -- who appears to support the Nazi cause -- falling in love with a Hitler Youth.

The film got little attention in its theatrical release, but became available online recently, and apparently the producers decided that people tweeting negative things about it deserve to be hit with DMCA takedowns. It seems to have started with Haaniyah Angus who live tweeted watching the film. Reading the entire thread is a treat (seriously, go read it), here are just a couple of clips from her live tweeting:

Anyway, there's a lot more like that. In short, the film is getting mocked widely. Angus' thread was so good and so thorough that Vulture published a conversation with her about just how bad the film is (another clip, but go read the whole thing):

Oh God, there are so many scenes that made me physically cringe. But I think the worst is when her little white brother (whose existence is never explained) says that her father was black “head to toe.” I don’t know why, but that piece of dialogue just made me want to curl up in a ball and scream. Other than that, I think the scene where a Hitler Youth rally takes place in front of Leyna’s apartment and for some reason her first logical thought is, Oh, I’ll go hang with the li’l Nazis. As most would guess, they aren’t happy to see a black girl, and then proceed to call her a nigga. It’s just so much at once ...

At one point in her thread, Angus uses a very short clip from the film to show how the film uses the awful romcom "rush to the airport, and see each other through a crowd of moving people" trope... except in a Nazi labor camp. You can guess what happened next: the producer of the film, Charles Hanson, filed a DMCA takedown notice:

Charlie Lyne saw this and wrote a good thread pointing out, why this use of the DMCA to censor negative criticism was clearly bullshit.

Lyne explains in detail what happened -- even using the same short clip -- to criticize the filmmakers for censoring criticism. You'll surely guess what happens next. Yup! They send a DMCA notice about his thread too:

As Lyne points out, this is not really about the use of a very short clip (with commentary, which is clearly fair use), since the filmmakers seem to be leaving up tweets that show clips that are positive about the film:

Though, to be fair, it appears that after Lyne pointed out this bit of hypocrisy, then Hanson decided to send a takedown for that clip too.

Lyne and Angus weren't the only ones to receive such takedown notices. Another Twitter user received a similar DMCA notice:

She says the "video" was "literally just me and my friend laughing over the ridiculousness of one of the scenes" using her smartphone.

The producer of the film, who appears to be manually sending these DMCA notices himself, responded to Gizmodo with a bunch of utter bullshit about how he's only doing this to protect the copyright:

Charlie Hanson, the producer of the film, told Gizmodo in an email that they “do not have the power to stifle criticism of the film. Everyone has been free to comment positively and negatively whether they have seen the film or not.” He argued that the film is only released in the U.S. at the moment, and that Where Hands Touch Ltd. “has only issued DMCA notices regarding breaches of copyright in cases where unauthorised clips of the film have been copied and posted online.”

This is wrong for a variety of reasons. The fact that he admits the film is only available in the US highlights how these short clips -- all used with comment and/or criticism of the film are obviously fair use. The clip that Angus and Lyne both posted was literally 14 seconds out of a movie. That's not impacting the market. The criticism of his shit film might be impacting the market, but the clips are not. It appears that Hanson's Twitter account is the aptly named @CharlieTantrum, which seems to accurately reflect his childish tantrum to criticism of his film. His Twitter feed is ignoring this entire controversy, but is merely reposting gushing tweets about the film instead.

Every so often some "copyright scholar" or "think tanker" will insist that copyright can't be used for censorship and insist that it's actually the engine for free speech. Those people are lying to you. And this is yet another example. Copyright is regularly used for censorship, though in this case, all its really served to do is make it much more widely known why no one should ever bother watching this awful movie.

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Posted on Techdirt - 8 January 2019 @ 3:48am

Irony Alert: Wikileaks Sends Reporters A List Of 140 Things Not To Say About Julian Assange; Tells Them Not To Publish

from the i-mean,-come-on dept

Either Julian Assange is the least self-aware person in the British Isles (currently), or Wikileaks is playing some sort of weird joke on the press. The organization, whose entire reason for being is publishing documents whose authors don't wish them to be published has bizarrely sent a list of 140 things reporters are not supposed to say about Assange (if this is a troll by Assange, you have to wonder if the 140 -- Twitter's original character limit -- is somehow on purpose). We'll get to the list in a moment, but first, the list included this hilarious statement:

CONFIDENTIAL LEGAL COMMUNICATION
NOT FOR PUBLICATION.

Ha, ha. Good one, Julian. Very funny. First of all, you don't send "confidential legal communications" to the media. That's not how it works. Second, unless there's already a pre-agreed upon deal not to publish certain materials, you don't get to email reporters willy nilly and insist that they can't report on it. That is also not how it works. Finally, this is Wikileaks we're talking about. I mean, come on.

Incredibly, Reuters, who first wrote about the existence of this list did not publish the list. Instead, that was initially left to FOIA/transparency/national security guru Emma Best who published the full list on her site. A few other publications followed later.

It is entirely possible that this is some sort of reverse Streisand Effect attempt, in which Assange purposefully put the idiotic "not for publication" line atop the email knowing that would make it more likely that the document would get attention, but no matter where you sit, for reporters, this now seems like a list of 140 things that Julian Assange is now calling for everyone to investigate. Of course, some of them are really just silly. For example:

It is false and defamatory to suggest that Julian Assange stinks.
It is false and defamatory to suggest that Julian Assange has ever tortured a cat or dog.
It is false and defamatory to suggest that Julian Assange does not use cutlery or does not wash his hands.
It is false and defamatory to suggest that Julian Assange lives, or has ever lived, in a basement, cupboard or under the stairs.

Um... what? Why even bring up any of these? Of course, much of the list involves some of the more serious claims that people have made against Assange over the years, especially regarding any connection with Russian Intelligence and or any attempt to influence the US election. And, while these don't necessarily break new ground, for investigative reporters, it seems like there could be some interesting breadcrumbs in the list of things Julian Assange really, really doesn't want the press to say about him.

Also, it appears that in a later version of the list that was posted to Pastebin, Wikileaks removed the line about Assange stinking and living in a cupboard under the stairs (that was Harry Potter, you see...). Emma Best set up a comparison of the two "leaked" copies of the list, if you're interested in delving into the details of what I guess is now up for discussion (does Assange have a scar in the shape of lightening bolt?).

Separately, each of the items on the list begin "it is false and defamatory to...." At the very least, this suggests that Assange has a fairly limited understanding of what "defamatory" actually means. Defamation requires a bit more than saying that Julian Assange stinks. Others may be false, but would hardly be "defamatory." For example:

It is false and defamatory to deny that Julian Assange co-founded the Freedom of the Press Foundation with John Perry Barlow.

I mean, it is a false statement since Assange did not co-found the Freedom of the Press Foundation with JPB (he was just one of their first beneficiaries). But, what is possibly "defamatory" about that sentence?

Either this is all an elaborate troll by Assange, or he's so freaking full of himself that he doesn't realize how petty and immature this whole thing looks (oops, is that on the list of things we can't say?).

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Posted on Techdirt - 7 January 2019 @ 10:45am

Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws

from the get-out-of-here dept

When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone's copyrights in posting the "Official Code of Georgia Annotated" (OCGA) because there could be no copyright in the law. As we explained at length in previous posts, Georgia has a somewhat bizarre system in which the only official version of their law is the "officially" annotated version, in which the annotations (with citations to caselaw and further explanations) are written by a private company, LexisNexis, which then transfers the copyright (should one exist) on those annotations to the state.

Malamud, of course, has spent years, trying to make it easier for people to access the law -- and that means all of the law, not just some of it. So when he posted a much more accessible version of the OCGA, the state sued him for copyright infringement. While the lower court ruled that the OCGA could have copyright, that the State of Georgia could hold it and that Malamud's work was not fair use, the 11th Circuit tossed that out entirely, saying that since the OCGA was clearly the only official version of the law, there could be no valid copyright in it.

It was a pretty thorough and complete win. And, if the state of Georgia were mature and reasonable, you'd think that they'd (perhaps grudgingly) admit that anyone should have access to its laws and move on. But, this is the state of Georgia we're talking about. And, it appears that the state has decided that rather than taking the high road, it's going to act like a petty asshole.

Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He's not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he's going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws:

I have sent numerous emails and placed numerous calls to my sales representative at the LexisNexis, who has not responded (my account was terminated by LexisNexis during the litigation). I’ve tried reaching out on Twitter, as have numerous others on that social media platform. Again, no response. My lawyer called the LexisNexis lawyer who said I could buy the code only if I paid the full rack rate—which I readily agreed to do—and then he promptly dropped the matter. I wrote to Mr. Russell who said on November 19, 2018 that he would “look into that matter,” and you have clearly not looked very long or very hard as I have not heard back from anybody.

When the Honorable Richard W. Story of the United States District Court for the District of Georgia issued a March 13, 2017 opinion granting summary judgement to the State of Georgia, within hours I removed all trace of the OCGA itself, and all mention of the OCGA from my web sites and from all web sites around the net. I did not wait for the April 7, 2017 permanent injunction to be issued, I complied immediately because I respect our system of justice, because I respect the rule of law, and because I respect our courts.

This is in sharp contract to your own behavior, ignoring the clear and unambiguous ruling of the United States Court of Appeals. Your behavior is an insult to the Court. I understand the State of Georgia will be appealing their decision, and we look forward to meeting you in the Supreme Court of the United States to argue our position. Until then, however, both the State of Georgia and your foreign-based vendor have an obligation to obey the law of the United States.

It appears that this is par for the course for the real life grownups who work for the State of Georgia:

Mr. Ruskell, your game of “hide the code” brings dishonor on the people of Georgia, who you are handsomely paid to serve. I have been attempting to discuss this issue with your office since May 13, 2013, and not once has anybody deigned to talk to me. When you filed suit on July 21, 2015, your complaint included bizarre accusations that my behavior was a form of “terrorism.” After you won summary judgment, you filed an April 21, 2017 motion for fees explaining to the court that I needed to be punished and made an example of to dissuade others from attempting to make the laws available without first obtaining prior permission from your vendor.

The letter also addresses Anders Ganten of LexisNexis (owned by the RELX Group, a company based in the UK):

Mr. Anders, your corporation, with its immense resources and technical capabilities, can easily make money through all manner of legitimate value-added products without exercising arbitrary control over the content your office seeks to “acquire.” As a vendor to the State of Georgia, you join them in the role of trustee on behalf of the people. Your corporation often boasts of the unparalleled information technology at your disposal that provides superior services to law firms and legal professionals. You have no need to engage in this subterfuge and behind-the-scenes lobbying, and it is unconscionable for you to flout the law of the United States as you have done by refusing to make the OCGA available to me. If your foreign corporation wishes to do business in the United States, you should respect our legal system and you must show respect for the pronouncements of our judges.

No matter how you look at this, it appears that LexisNexis, together with the State of Georgia, are acting like petty tyrants, ignoring a court order -- but even worse, they are refusing to sell a copy of their legal code (already a bizarre stance) out of fear that Malamud will make it easier for the public to read the laws. If you happen to be a Georgia citizen, maybe ask why your own government is trying to hide its laws from you...

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Posted on Techdirt - 4 January 2019 @ 3:30pm

Copyright, Culture, Sharing, Remix... And A Congresswoman Dancing As A College Student

from the copyright-fun dept

So... this post is going to discuss something involving freshman Congresswoman Alexandria Ocasio-Cortez. For a variety of reasons -- some good, some bad, some truly awful -- Ocasio-Cortez (or AOC, as people call her) seems to elicit quite a strong reaction from people, both pro and con. This post is not about her, or her views, or whatever you happen to think about any of it. If you want to argue about her in the comments, feel free, just know that you'll be off-topic and will look silly. Rather, this post is about copyright -- a topic that we talk about frequently, and one on which AOC, in her new job, may at some point be asked to weigh in on as a legislator.

The latest "controversy" (if you can even call it that) began as one of the various attempts by some of her critics to dig into her past to try to prove... something(?!?), in this case by unearthing a video of her in college dancing. I remain unclear of what awful thing her critics thought this proved, but apparently it was something about how people can't possibly have been poor if they once had fun dancing. At least that was the suggestion I saw passed around, and it's about as nonsensical as copyright term extension, but alas...

There's actually a much more interesting copyright story underneath all of this, much of the history of which we've covered in detail on Techdirt in the past, but which Parker Higgins did a great job recounting on Twitter on Thursday afternoon:

Wired later turned much of Parker's thread into an article as well. The short version is that almost exactly 10 years ago, Sarah Newhouse put together a video taking scenes from various 1980s "brat pack" movies (mainly, and most prominently, Breakfast Club, but a few others as well) and put clips of the actors dancing to a (then) new song by the band Phoenix, called Lisztomania:

Notably, that is not the original video. Despite the band being super happy with that video (and everything that later came from it), somewhere along the way, Newhouse got dinged for it and other videos and had her entire YouTube account taken down over copyright infringements. Gotta love that DMCA requirement for a "repeat infringer" policy.

Soon after that video, a guy named Ian Parker, inspired by Newhouse's video, recreated it with his friends on a rooftop in Brooklyn:

That version is still online. It then inspired a ton of other people and social groups to build on that work and create their own, starting with a group in San Francisco. Except... that version is no longer online due to a claim by IFPI that the use of the song is infringing (remember, the band itself was thrilled about the attention this gave them...). But, of course, another version has popped up:

And there are lots and lots of others... including one from Boston University, which has a (just slightly) younger Alexandria Ocasio-Cortez having fun with some friends and recreating a localized BU version of the same video. That one's been online since 2010, just months after this whole craze started:

It is not entirely clear why the sudden spreading of clips from this video were seen as "new" since that original video has been up for nearly a decade, and it's also not at all clear why the "new" video changed the music, though if it was an attempt to hide where it originated from, that failed. I saw the initial tweet that was promoting the video, and it was obvious from the clips that this was one of the many Lisztomania videos, and it would be obvious to anyone who watched a bunch of them back then.

Earlier in 2010, Julian Sanchez had done a fun explainer video on the Evolution of Remix Culture, which we talked about a few times over the years:

Sanchez makes a few points in that video, but the key one is that the complaints that traditional copyright folks have about remix culture totally misses the point. These videos and the sharing of our unique versions of such memes is not about "freely" using someone else's stuff, but about social interactions with our own friends and communities, and putting our own stamp on things. Sanchez doesn't make this point, but it's actually a very similar situation to the way culture used to happen: storytellers would take the ideas of others and build on them and make their own versions and spread them.

Of course, Sanchez's own video was taken down (multiple times) with various bogus copyright claims. While one might argue that the fair use claims on the original videos were less strong (I'd disagree, but there are better arguments there), the idea that Julian's video was not fair use was... crazy. He was clearly commenting on the use of this music and videos for remix purposes, and it would meet all four criteria for fair use easily. Eventually, after Sanchez complained publicly about the takedowns, the demands were removed and the video lives on.

Soon after Sanchez's presentation, Larry Lessig himself used this example of remix culture -- highlighting Sanchez's video... and a whole bunch of these videos.

However, a few years later, as we covered here at Techdirt, the label with control of the copyright, Liberation Music, issued a takedown on one of Lessig's lectures about this. This was, exceedingly bizarre. Remember: Lessig was using the video clips from Julian's video, which is an explainer about the social situation and copyright policy questions raised by all of the other videos... and Liberation claimed it was infringing. Even worse, when Lessig counternoticed, Liberation told him if he didn't remove the counternotice, it would sue him. Lessig and EFF then sued Liberation seeking a declaratory judgment of non-infringement and (importantly) seeking fees for violating 512(f) of the DMCA -- which is the almost entirely toothless clause for pushing back against bogus DMCA takedowns. This was one case where it might actually have teeth. Realizing it was sunk, the following year Liberation ended up settling the case and paying an "undisclosed sum," while promising to adopt new fair use-respecting policies.

And that was, more or less, the end of that meme, until it suddenly came rushing back due to some people's infatuation with a particular Congresswoman. But there are a lot of really important copyright points embedded in this story -- starting with all of the lessons both Sanchez and Lessig highlighted in each of their videos (seriously, watch them both). But it's even more punctuated by the fact that so many of the videos that I discuss above were at one time or another taken down by copyright claims -- many of which seem entirely bogus -- and where the band has made it clear it was thrilled with these videos (as it should have been, as it gave that song a huge boost in attention). Indeed, Phoenix issued a statement (miraculously still available on Tumblr) stating: "We support fair use of our music" and also (apologies for the all caps screaming, but that's how they wrote it):

NOT ONLY DO WE WELCOME THE ILLUSTRATIVE USE OF OUR MUSIC FOR EDUCATIONAL PURPOSES, BUT, MORE BROADLY, WE ENCOURAGE PEOPLE GETTING INSPIRED AND MAKING THEIR OWN VERSIONS OF OUR SONGS AND VIDEOS AND POSTING THE RESULT ONLINE.

ONE OF THE GREAT BEAUTIES OF THE DIGITAL ERA IS TO LIBERATE SPONTANEOUS CREATIVITY - IT MIGHT BE A CHAOTIC SPACE OF FREE ASSOCIATION SOMETIMES BUT THE CONTEMPORARY EXPERIENCE OF DIGITAL RE-MEDIATION IS ENORMOUSLY LIBERATING.

WE DON’T FEEL THE LEAST ALIENATED BY THIS; APPROPRIATION AND RECONTEXTUALIZATION IS A LONG-STANDING BEHAVIOR THAT HAS JUST BEEN MADE EASIER AND MORE VISIBLE BY THE UBIQUITY OF INTERNET.

IN A FEW WORDS:

WE ABSOLUTELY SUPPORT FAIR USE OF OUR MUSIC,

AND WE CAN ONLY ENCOURAGE A NEW COPYRIGHT POLICY THAT PROTECTS FAIR USE AS MUCH AS EVERY CREATORS’ LEGITIMATE INTERESTS.

So, we have a copyright policy that pissed off the actual artists -- and only served to stifle or silence many people who were building off of it in truly creative ways that enabled a community endeavor. As Julian noted in his talk (and Lessig specifically called out), a big part of the question here is "what level of control copyright has over our social realities" and how copyright policy that is too locked down serves to limit our ability to express and share our social realities.

In his big thread, almost as an aside, Parker made a key point in this discussion that is worth repeating (over and over and over again):

Indeed, this is the entire point that the Article 13 debate in the EU is about. The supporters of Article 13 are demanding -- literally -- that the entire internet "be licensed." But think about how the above story plays out in such a world. In short, it doesn't. And while that might mean one less way for some internet morons to self-own themselves in trying to make fun of a new Congresswoman, I'm not exactly sure that's what we should be optimizing for.

Indeed, this whole story is a lesson in the power of culture and communities to actually rise above the ridiculousness of today's copyright laws (mostly) to actually showcase their communities and personalities, and that's something we should be championing. And one hopes that when copyright policy is up for discussion in Congress, that AOC gets that, now having some firsthand experience with it.

Oh, and I should note that the nature of remix and copyright and culture has continued to expand. Following from this whole mess with AOC, someone has set up a Twitter account called AOC Dances To Every Song, and it delivers exactly what it claims to. Here are just a few examples:

There are a lot more... though it would not surprise me at all to find that account is eventually shut down for... claims of copyright infringement. Because this is the insane world we live in.

For what it's worth, AOC herself has now evolved this even further by dancing in a new video, and making fun of the "controversy."

I wonder if copyright maximalists will demand that she also "license" that clip as well?

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