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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 28 April 2017 @ 11:53am

Sketchy Bogus Crowdfunding Campaigns To 'Buy' Congress's Private Web Browsing... Only Now Realize That's Impossible

from the well,-duh dept

Look, we warned everyone about this. Right after Congress stupidly stripped privacy protections so that ISPs could more actively sell your data (and make it harder for you to realize it or do anything about it), there were a few crowdfunding campaigns that popped up on GoFundMe, claiming that they were raising money to then buy the web browsing data of Congress. We pointed out at the time that this was dumb and dangerous because you can't just go buy someone's web surfing data. That's not how any of this works. But, you know, it was one of those stories that people just really, really wanted to believe, so apparently unaware of it being flat out impossible (more people should read Techdirt...), tons and tons of people donated tons and tons of money, without realizing there was absolutely no way these campaigns could do what they they claimed. The more well-known campaign, by a self-declared "privacy activist" named Adam McElhaney, ended up raising over $200k (despite others claiming that it looked like a pure scam). The slightly lesser well-known one, by actor Misha Collins, took in just under $90k. Between them, they raised about $300k... with promises of obtaining data that anyone with any knowledge of the situation would know they couldn't obtain.

So, uh, take a wild guess what has happened? If you guess they didn't get any data with that money, well give yourself a prize, because that's exactly 100% what happened.

And... some of the folks snookered into handing over the cash for something that was pretty clearly bogus are... not happy. Many have been requesting refunds. McElhaney is now claiming that he was never planning to buy the data from ISPs, but rather get it by FOIA, though he's now admitting in a GoFundMe update that it's not working either:

When I started, I said I wanted to get the internet histories of those who voted for this law.

That has not changed.

What I didn't mention was *WHERE* I planned on getting the data. If I told you that I was going to come after your web habits, your search history, you might - as I imagine many of you did - change what you look up on your home computers. This is what I wanted our legislators to think - their home internet connections where being targeted. When in fact I was coming for their office server data. That data is subject to Freedom of Information Act requests and very obtainable.

Even if they didn't change their habits the data stored in their work proxy servers would still be a trove of information. Maybe even more telling than home.

The reason I am telling this to you now is, I think the cat is out-of-the-bag. After the first forty paper requests went out, a few days later I was contacted by a friend who happens to work in the offices of a senators. She said that word is getting around that "the GoFundMe guy that has raised all that money for privacy is trying to get our work internet history."

Now after about 80 paper requests have gone out, I have received responses back from three. They simply stated they do not have the data I requested. Oddly enough they were all requests for the same person, Marsha Blackburn. But, it makes sense. I am in Tennessee and three of her offices are in Tennessee so the mail would have gotten to her offices faster. After that I have received no other responses.

He then notes that anyone who wants a refund should request it and GoFundMe would return the money -- but for those who didn't request a return, he'd hand the money over to EFF. Hopefully that is true -- EFF obviously does great work. But, still, this whole episode is an unfortunate one. There remain very real issues around the privacy rules being killed and the way in which ISPs handle our private info. But going nuts and exaggerating the situation helped no one (well, perhaps EFF will benefit in the end... but still not the best way to handle this). Keeping things in perspective and accurate is important. Flying off the handle and assuming you can just go buy everyone's internet browsing history without actually understanding the legal change that was happening was dumb -- and it was dumb that many in the press helped make the story go viral without any explanation that it was bullshit. If you want to donate to organizations for doing good work, donate to them directly -- not through some sketchy scheme like these.

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Posted on Techdirt - 28 April 2017 @ 10:45am

Surprise: NSA Stops Collecting Americans' Emails 'About' Foreign Targets

from the this-is-big dept

There aren't many details yet, but Charlie Savage at the NY Times has a major scoop: apparently, the NSA has halted "about" email collections. This is important. As we've discussed in the past, under Section 702 of the FISA Amendments Act, the NSA can collect info on approved "foreign targets." But here's where it got sketchy: they could collect the communications "to" them or "from" them -- which most people would expect -- but also they could collect any communications "about" them. In other words, did you joke about Osama bin Laden in an email? It's possible that under Section 702, the NSA could collect that email without a warrant. That was massively concerning because the "about" emails from Americans could contain lots of other info, and once sucked up into the NSA's system and made available to the FBI for "backdoor" incidental collection searches, could expose people to lots and lots of trouble. There have been pushes over the past few years to limit the collection to no longer include "about" communications, but those had been (as far as we knew!) unsuccessful.

And, for an unclear reason, the NSA has stopped doing that. Trevor Timm speculates that perhaps the FISA court ruled that collection illegal, which is possible (also we just noted that there were no new 702 approvals by the FISA Court last year), so perhaps the FISC is finally taking its job a bit more seriously. We've also pointed out that there have been legal fights over the fact that the DOJ lied to the Supreme Court about the nature of these "about" collections, which may have created more pressure to stop them from happening.

I'm sure that we'll find out more about what happened in the near future, but this will certainly play a large role in the upcoming debate about renewing Section 702.

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Posted on Techdirt - 28 April 2017 @ 3:12am

Barrett Brown Re-Arrested For Giving Media Interviews Without Permission

from the hey,-wait-a-second... dept

The weird, sickening persecution of Barrett Brown continues. Whether or not you like the guy (and every time we post about him, we hear from people who provide reasons why they dislike him), the way he's been treated by our justice system is despicable. If you don't recall, Brown is an award winning journalist, who certainly went deep with Anonymous and other online groups. Eventually that resulted in him being arrested and harassed by prosecutors for sharing a link. When the infamous Stratfor hacks were released, he shared a link to the files to get people to sift through them. Because some of the files included swiped credit card numbers, he was charged with "trafficking" in stolen credit cards. Oddly, right before trial -- realizing how insane it was to charge him over this -- the feds dropped the charges around linking, but pushed forward on other charges because he hid a laptop in a cabinet and (stupidly...) got angry at the FBI when they came to investigate. The odd part is that following a plea deal, the judge sentenced him to an astounding 63 months in jail -- and cited the sharing of the link (again, those charges were dropped, but it sometimes appeared the judge didn't realize that) to explain why.

But the odder part throughout all of this was just how vindictive and petty everyone in the system were towards Brown -- and specifically towards his interactions with the press. The feds sought to stop the media from reporting on Brown's case and got a judge to block Brown or his lawyers from talking to the media. And once he was in prison, the feds cut off his email.

All this weird petty shit, just to stop him from talking to the media.

Late last year, he was released from prison (earlier than expected) and has been complying with all the terms of his release... except, apparently, officials disagreed with that... because he was conducting interview with the media, according to D Magazine, where Brown has been working since his release. The Intercept, which employed Brown as a columnist while he was in prison, has more details, claiming that his check-in officer suddenly claimed that he needed permission before he could conduct media interviews -- something he had not been told at all.

According to his mother, who spoke with Brown by phone after his arrest, Brown believes the reason for his re-arrest was a failure to obtain “permission” to give interviews to media organizations. Several weeks ago, Brown was told by his check-in officer that he needed to fill out permission forms before giving interviews.

Since his release, Brown has given numerous interviews, on camera and by phone. But according to his mother, Brown said that the Bureau of Prisons never informed him about a paperwork requirement. When he followed up with his check-in officer, he was given a different form: a liability form for media entering prisons.

Just last week, Brown was interviewed for two days by VICE, and his PBS interview was set for Friday.

Leiderman said he had not been presented with a formal justification for the arrest but was told that it had “to do with failing to abide by BOP restrictions on interviews.”

That's both astounding and frightening at the same time, and seems like a fairly blatant kick in the face to the First Amendment. There appears to be no other reason for his arrest other than his speech in the form of conducting media interviews (often critical of criminal justice system). Nothing about this makes sense, other than out of pure vindictiveness. And, of course, if the idea was to shut him up about this, it seems quite likely to backfire massively. Not only will Brown continue to be able to talk about on this, but it's drawing much more attention to the issue from many others in the press, wondering what kind of world we live in when you can be arrested for agreeing to do media interviews.

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Posted on Techdirt - 27 April 2017 @ 5:39pm

Indian State Of Kashmir Bans 22 Social Networks For A Month

from the because-speech-is-bad dept

We've seen random attempts by governments to block access to social media sites or even the internet as a whole, but the Indian state of Kashmir has ordered 22 social networks to be blocked for at least a month. Journalist Nazir Masoodi, who is in Kashmir, tweeted out screen shots of the government order, noting "This could be my last tweet."

We've taken those images and turned them into a PDF if you'd prefer to view them that way. But you can see that basically every big name social network is listed: Facebook, Twitter, Tumblr, Skype, Snapchat, Reddit, YouTube (apparently they just want YouTube uploads blocked, but you can visit the site) and more. MySpace is still available.

As the NY Times points out, this pointless and heavy handed approach is apparently a terrible response to protests:

The move illuminated a government increasingly vexed by civilian protests, by a newly budding homegrown militancy in south Kashmir and by a series of video clips, distributed on social media, depicting confrontations between civilians and Indian security forces.

The order, signed by the principal secretary in the state’s Home Department, contended that social media was being used by “anti-national and subversive elements” for “vitiating peace and tranquillity” in the state.

As always, when governments resort to out-and-out censorship, it's difficult to see how this will do any good at all. There are always alternative ways to communicate and share information, and these kinds of actions tend to galvanize those being censored into being even more aggressive in sharing such info. Indeed, the NY Times quotes protesting students pointing out how pointless such a ban really is:

“The government has to understand that there is a sentiment which forces students to come out on the streets: it is not the internet, it is not Facebook or any other social media platform,” said Aqib Shah, a 19-year-old student at Amar Singh College, who has been participating in protests in Srinagar for the last several days. “It is because of the overwhelming presence of forces that are deployed here.”

Instead of trying to shut people up on the internet, maybe it would be a better idea to listen to them.

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Posted on Net Neutrality Special Edition - 27 April 2017 @ 2:40pm

Over 800 Startups Tell FCC's Ajit Pai Not To Kill Net Neutrality

from the don't-be-foolish dept

As we noted yesterday, FCC Chair Ajit Pai has officially kicked off his plan to kill net neutrality -- and unfortunately did so by spouting debunked myths and fantasies about how much damage net neutrality was causing for investment. As we pointed out that, that's complete hogwash. If you actually looked at what telcos and ISPs were spending it showed no impact from the open internet rules. And, really, why should it have changed investment plans? As we've noted, the rules had basically no impact on ISPs unless those ISPs were looking to screw over consumers. And if it harmed those ISPs' investment plans, that doesn't seem like a very big loss. Otherwise, the open internet rules just provided clear "rules of the road" for ISPs to treat internet data fairly and to not screw over end users.

Either way, that's not the only "investment" that Pai should be looking at. Because one of the other key aspects of having an open internet is the massive amount of investment that has resulted for companies that operate on the internet. Pai seems (bizarrely) exclusively focused on investment in the infrastructure (which, again, has not dropped despite his claims) and totally ignores all the investment layers above (which also helps funds the infrastructure). So, just as Pai is (wrongly) whining that net neutrality harmed investment, over 800 startups, from all 50 states, sent him a letter urging him not to get rid of the open internet rules (and, yes, we were among those who signed onto the letter).

This is important. Pai is making all sorts of misleading to nonsensical claims about the impact on the economy of the net neutrality rules, but in doing so he's trying to ignore all of the business that's created because the internet is kept open and free and the giant incumbent access providers are unable to favor their own services or throttle and stifle innovative upstarts. Pai talks a good game about how he wants the "democratization of entrepreneurship" thanks to a fast internet. That's great. But if he kills off net neutrality we lose that. We get a system where each startup has to go begging and pleading to each access provider for a deal they probably can't get or couldn't afford even if they were able to. We've seen that world. It's the world that existed on mobile phones in the early 2000s when the providers got to control (i.e., charge ridiculous sums for) who had access to their customers. That was not a good world to live in and it vastly limited the economic opportunities of the mobile world. It was only when smartphones broke away from the carriers' control that things changed.

We shouldn't move back towards that kind of world, yet that appears to be the clear end result of the plans that Pai is pushing. This is a mistake and over 800 startups are letting him know that. Pai may think he can ignore them all, but he should note that each of those companies has a lot of users, and it's not difficult to ask them to speak up too. Pai is playing with fire if he thinks that the public won't speak out about his attempts to kill off net neutrality and to harm the most innovative companies out there, in favor for the slow, lumbering duopolists who control the pipes.

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Posted on Techdirt - 26 April 2017 @ 7:10pm

House Votes Overwhelmingly To Make The Copyright Office More Political & To Delay Modernization

from the what-a-farce dept

This isn't a huge surprise, but unfortunately, today -- after a mostly ridiculous "debate" on the House floor full of claptrap and bullshit about how important copyright is to "protecting jobs" (despite this bill having nothing to do with any of that) -- the House voted 378 to 48 to approve a bill that makes the head of the Copyright Office, the Copyright Register, a Presidential appointment rather than an appointment by the Library of Congress, as it's been throughout the entire history of the Copyright Office. As we pointed out just yesterday, Congress appears to be rushing this through for no clear reason. It held no hearings on the issue (other than the fact that the current Librarian of Congress, Carla Hayden, was getting ready to appoint her own Copyright Register).

Again, every reason given by supporters of this bill doesn't hold up to any scrutiny. They claimed, falsely, that copyright creates 5 million jobs (one Rep -- Tony Cardenas -- even claimed that the Copyright Register "oversees" those jobs). But this is not true. They claimed that the Copyright Office needs to be modernized -- which is true. But Carla Hayden has already commenced a massive modernization project, which this bill will stop dead in its tracks. They claimed that this would provide "greater oversight" over how the Copyright Office is run, but that's not even remotely true. The bill actually takes away the oversight from the Librarian of Congress... and gives it to no one other than the President, who isn't likely to be paying much attention to what's happening at the Copyright Office.

This bill serves no purpose other than to take power away from the Librarian of Congress and give it to powerful lobbyists who will have a major say in who runs the Copyright Office. The bill will now move to the Senate where it is also likely to get an easy approval, and no doubt the President will sign the bill (which gives him more power, even if he's shown little sign of actually appointing people to the nearly 500 open positions which this will add to). It's a bad bill, and it's a gift to Hollywood, even as it will harm the actual content creators who will have to wait even longer for the office to actually be modernized.

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Posted on Techdirt - 26 April 2017 @ 4:08pm

For World 'Intellectual Property' Day, A Reading From Thomas Macaulay

from the check-it-out dept

As we mentioned recently, today is "World Intellectual Property Day," an event put together by the World Intellectual Property Organization (WIPO) to promote ever greater protectionism and mercantilism in favor of copyright holders and patent holders, while ignoring any impact on the public of those things. It's a fairly disgusting distortion of the claimed intent of intellectual property, which is often promoted for the claimed benefits it brings to the public, but extreme supporters, such as WIPO, are never willing to actually weigh out the pros and cons of copyrights and patents, and how over-protection and over-enforcement can cause serious problems for the public, innovators and creators.

I wasn't sure if I was going to write anything specifically about World IP Day, but Brandon Butler, the Director of Information Policy at the UVA Library put up an excellent suggestion on Twitter, that we should use "World IP Day" to re-read what Lord Thomas Macauley said in the UK Parliament back in 1841 when they were discussing copyright term expansion. We've pointed to it and quoted from it at length many times over the years, but even now, 176 years later, it still remains one of the best statements on how over-monopolizing ideas creates real harms. It's a part of the lesson that supporters of copyright and patents either ignore or wish to hide. So we will post it here in its entirety (after all, it's in the public domain):

Thomas Babington Macaulay
First Speech to the House of Commons on Copyright

February 5, 1841

It is painful to me to take a course which may possibly be misunderstood or misrepresented as unfriendly to the interests of literature and literary men. It is painful to me, I will add, to oppose my honorable and learned friend on a question which he has taken up from the purest motives, and which he regards with a parental interest. These feelings have hitherto kept me silent when the law of copyright has been under discussion. But as I am, on full consideration, satisfied that the measure before us will, if adopted, inflict grievous injury on the public, without conferring any compensating advantage on men of letters, I think it my duty to avow that opinion and to defend it.

The first thing to be done. Sir, is to settle on what principles the question is to be argued. Are we free to legislate for the public good, or are we not? Is this a question of expediency, or is it a question of right? Many of those who have written and petitioned against the existing state of things treat the question as one of right. The law of nature, according to them, gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination. The legislature has indeed the power to take away this property, just as it has the power to pass an act of attainder for cutting off an innocent man’s head without a trial. But, as such an act of attainder would be legal murder, so would an act invading the right of an author to his copy be, according to these gentlemen, legal robbery.

Now, Sir, if this be so, let justice be done, cost what it may. I am not prepared, like my honorable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that his theory soars far beyond the reach of my faculties. It is not necessary to go, on the present occasion, into a metaphysical inquiry about the origin of the right of property; and certainly nothing but the strongest necessity would lead me to discuss a subject so likely to be distasteful to the House. I agree, I own, with Paley in thinking that property is the creature of the law, and that the law which creates property can be defended only on this ground, that it is a law beneficial to mankind. But it is unnecessary to debate that point. For, even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor. . . . Surely, Sir, even those who hold that there is a natural right of property must admit that rules prescribing the manner in which the effects of deceased persons shall be distributed are purely arbitrary, and originate altogether in the will of the legislature. If so. Sir, there is no controversy between my honorable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author copyright during his natural life; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any assailant. The only point in issue between us is, how long after an author’s death the state shall recognize a copyright in his representatives and assigns; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good.

We may now, therefore, I think, descend from these high regions, where we are in danger of being lost in the clouds, to firm ground and clear light. Let us look at this question like legislators, and after fairly balancing conveniences and inconveniences, pronounce between the existing law of copyright, and the law now proposed to us. The question of copyright. Sir, like most questions of civil prudence, is neither black nor white, but gray. The system of copyright has great advantages and great disadvantages; and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded. The charge which I bring against my honorable and learned friend’s bill is this, that it leaves the advantages nearly what they are at present, and increases the disadvantages at least fourfold.

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated: and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalize themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labor. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favor of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those in­con­ve­ni­ences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honorable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.

If, as my honorable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather, why should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth’s reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe. Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Now, I will not affirm that the existing law is perfect, that it exactly hits the point at which the monopoly ought to cease; but this I confidently say, that the existing law is very much nearer that point than the law proposed by my honorable and learned friend. For consider this; the evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. A monopoly of sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a monopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible. We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may reasonably hope that we shall ourselves enjoy. But an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. It is very probable that in the course of some generations land in the unexplored and unmapped heart of the Australasian continent will be very valuable. But there is none of us who would lay down five pounds for a whole province in the heart of the Australasian continent. We know, that neither we, nor anybody for whom we care, will ever receive a farthing of rent from such a province. And a man is very little moved by the thought that in the year 2000 or 2100, somebody who claims through him will employ more shepherds than Prince Esterhazy, and will have the finest house and gallery of pictures at Victoria or Sydney. Now, this is the sort of boon which my honorable and learned friend holds out to authors. Considered as a boon to them, it is a mere nullity; but considered as an impost on the public, it is no nullity, but a very serious and pernicious reality.

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honorable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty. Why, Sir, what is the additional amount of taxation which would have been levied on the public for Dr. Johnson’s works alone, if my honorable and learned friend’s bill had been the law of the land? I have not data sufficient to form an opinion. But I am confident that the taxation on his dictionary alone would have amounted to many thousands of pounds. In reckoning the whole additional sum which the holders of his copyrights would have taken out of the pockets of the public during the last half century at twenty thousand pounds, I feel satisfied that I very greatly underrate it. Now, I again say that I think it but fair that we should pay twenty thousand pounds in consideration of twenty thousand pounds’ worth of pleasure and encouragement received by Dr. Johnson. But I think it very hard that we should pay twenty thousand pounds for what he would not have valued at five shillings.

But this is not all. I think it right, Sir, to call the attention of the House to an evil, which is perhaps more to be apprehended when an author’s copyright remains in the hands of his family, than when it is transferred to booksellers. I seriously fear that, if such a measure as this should be adopted, many valuable works will be either totally suppressed or grievously mutilated. I can prove that this danger is not chimerical; and I am quite certain that, if the danger be real, the safeguards which my honorable and learned friend has devised are altogether nugatory. That the danger is not chimerical may easily be shown. Most of us, I am sure, have known persons who, very erroneously as I think, but from the best motives, would not choose to reprint Fielding’s novels or Gibbon’s “History of the Decline and Fall of the Roman Empire.” Some gentlemen may perhaps be of opinion that it would be as well if “Tom Jones” and Gibbon’s “History” were never reprinted. I will not, then, dwell on these or similar cases. I will take cases respecting which it is not likely that there will be any difference of opinion here; cases, too, in which the danger of which I now speak is not matter of supposition, but matter of fact.

Take Richardson’s novels. Whatever I may, on the present occasion, think of my honorable and learned friend’s judgment as a legislator, I must always respect his judgment as a critic. He will, I am sure, say that Richardson’s novels are among the most valuable, among the most original, works in our language. No writings have done more to raise the fame of English genius in foreign countries. No writings are more deeply pathetic. No writings, those of Shakespeare excepted, show more profound knowledge of the human heart. . . . Sir, it is my firm belief, that if the law had been what my honorable and learned friend proposes to make it, they would have been suppressed.

I remember Richardson’s grandson well; he was a clergyman in the city of London; he was a most upright and excellent man; but he had conceived a strong prejudice against works of fiction. He thought all novel-reading not only frivolous but sinful. He said,—this I state on the authority of one of his clerical brethren who is now a bishop,—he said that he had never thought it right to read one of his grandfather’s books. Suppose, Sir, that the law had been what my honorable and learned friend would make it. Suppose that the copyright of Richardson’s novels had descended, as might well have been the case, to this gentleman. I firmly believe that he would have thought it sinful to give them a wide circulation. I firmly believe that he would not for a hundred thousand pounds have deliberately done what he thought sinful. He would not have reprinted them.

And what protection does my honorable and learned friend give to the public in such a case? Why, Sir, what he proposes is this: if a book is not reprinted during five years, any person who wishes to reprint it may give notice in the London Gazette: the advertisement must be repeated three times: a year must elapse; and then, if the proprietor of the copyright does not put forth a new edition, he loses his exclusive privilege. Now, what protection is this to the public? What is a new edition? Does the law define the number of copies that make an edition? Does it limit the price of a copy? Are twelve copies on large paper, charged at thirty guineas each, an edition? It has been usual, when monopolies have been granted, to prescribe numbers and to limit prices. But I do not find that my honorable and learned friend proposes to do so in the present case. And, without some such provision, the security which he offers is manifestly illusory. It is my conviction that, under such a system as that which he recommends to us, a copy of “Clarissa” would have been as rare as an Aldus or a Caxton.

I will give another instance. One of the most instructive, interesting, and delightful books in our language is Boswell’s “Life of Johnson.’’ Now it is well known that Boswell’s eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the “Life of Johnson’’ mentioned. Suppose that the law had been what my honorable and learned friend wishes to make it. Suppose that the copyright of Boswells “Life of Johnson” had belonged, as it well might, during sixty years, to Boswell’s eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden’s “Britannia.”

... Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd Acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue Acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers.

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as “Robinson Crusoe” or the “Pilgrim’s Progress” shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

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Posted on Techdirt - 25 April 2017 @ 1:22pm

Why Is Congress In Such A Rush To Strip The Library Of Congress Of Oversight Powers On The Copyright Office?

from the what's-the-hurry? dept

In the past few weeks, we've written a few times about this weird urgency among some in Congress to rush through a pretty major change to Copyright Office oversight. I wrote a deep dive piece over at The Verge discussing the issues at play, but Congress is pushing a bill to stop the new Librarian of Congress, Carla Hayden, from appointing a new head of the Copyright Office. Instead, the Congressional plan is to make the position a political appointee, nominated by the President, and approved by Congress. In that Verge piece, we explained why it was a major change, and scratched our heads at the fact that there appears to be no reason for pushing for this change other than (1) the legacy copyright industries know that their lobbying power will mean that the appointment will be to their liking and (2) they fear who Hayden might appoint. But, what's really odd is how quickly Congress is trying to push this through. As if the matter is incredibly urgent. There have been no hearings on the matter. There's been no public discussion on the pros and cons of such a move. Just a mad dash by a bunch of people in Congress to make this change official before Hayden can appoint someone.

Rep. Zoe Lofgren -- who appears to be one of the few people in Congress questioning why this is happening -- has put out a statement highlighting why this move is so problematic. A key point: if there is such a rush to make the change, how does it make sense to put this appointment power in the hands of a President who has left hundreds of federal jobs completely empty without any nominations at all?

... this legislation will harm and delay much-needed modernization efforts by making the Register a Presidentially appointed position. Currently, there is a backlog of 495 Appointee positions that have not even been nominated. This not only will delay effective administration of the Copyright Office, but also puts the efficiency gains made by the Library at risk. Under current modernization plans, the Library believes it can speed up the modernization plan by almost two years and save significant amounts of money. Those plans depend on an active Register of Copyright who is compliant and accountable to the Librarian. The long delay created by this bill in needing Senate confirmation of a Register will only harm these efforts.

In other words, the arguments for "urgency" because the Copyright Register position is currently vacant are undermining their own argument. Considering the nearly 500 federal government positions that have no nominees yet, who actually thinks that Trump will quickly get around to nominating a new Copyright Register, let alone having that person confirmed by the Senate? The current Librarian of Congress, Carla Hayden, on the other hand, has been reviewing candidates for months now and is likely close to having someone in place.

Similarly, as noted above, if (as is the typical line) this move is necessary to "modernize the Copyright Office," this plan does the exact opposite of that. Hayden has already put forth a plan to modernize the Copyright Office (and has experience modernizing a massive library system). But if the Copyright Office boss has to be nominated by a President who doesn't seem to feel like nominating anyone, and then approved by the Senate, the modernization plan will almost certainly be delayed. So why are supporters of this bill in such a rush if it's going to undermine and delay the key reason they give for supporting this bill: the modernization of the Copyright Office? It's almost as if that's not the real reason.

Separately, Lofgren points out that it's crazy to provide less oversight to the Copyright Office right after it's been revealed that one reason why Hayden likely fired the the previous Copyright Register was because of incredible mismanagement by the previous Register, that included a modernization program that was budgeted for less than $2 million, but ended up spending nearly $12 million before being dumped with nothing to show for it (as we first revealed here on Techdirt).

Removing Dr. Hayden’s ability to appoint the Register of Copyrights means she will be unable to hold employees accountable, and it creates uncertainty and ambiguity in the chain of command between the Librarian and Register of Copyrights.

The previous Register of Copyrights was removed after a Library of Congress Inspector General report found the Copyright Office not only wasted six years and nearly $12 million but hid this information from Congress, falsified information in reports to the Library, and submitted fake budget numbers for annual appropriations requests.

Dr. Hayden took appropriate steps to remove the Register responsible for this mismanagement. This bill would prevent Dr. Hayden from removing or ensuring accountability in any future Register by making the Register answerable only to the President -- a fundamental change in the relationship between Librarian and Register.

Finally, Lofgren notes that it certainly is at least notable and unfortunate that this move to rush through this change certainly appears to be an attempt by Congress to undermine the authority of the first female and first African American Librarian of Congress.

Finally, the bill is a clear affront to the first female Librarian of Congress. Dr. Carla Hayden is not only one of the most highly qualified Librarians ever to serve, but has also worked aggressively and in good faith to pull the Library and Copyright office into the 21st century. I find it deeply disturbing that for the first time in history, a female and a person of color is the Librarian of Congress, and for the first time in history, Congress would take away her power in order to give it to Donald Trump. While this does not point to motive, it is a distressing fact nevertheless.

This bill is a vote of ‘no confidence’ in a Librarian who is aggressively pulling the Library and Copyright Office into the 21st century and, by all evidence, justifiably reassigned an ineffective and negligent Register. It will only serve to delay Copyright Office modernization, harm the public, harm content creators, increase tension between the Library and Copyright Office, and harm Copyright Office employees.

Indeed. There are certainly arguments to be made for changing things up, but no one pushing for this bill seems to be able to answer why this needs to be changed so quickly, when such a change clearly undermines their own stated reasons for supporting the bill. From that, the most logical conclusion is that they are pushing for the change because they are worried about who Hayden is likely to appoint, rather than because of any principled argument.

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Posted on Techdirt - 25 April 2017 @ 10:46am

That Story About Uber Tracking People After They Deleted The App? Yeah, That's Not Really Accurate

from the let's-try-this-again dept

Have you heard the story about how Uber was tracking ex-users even after they had deleted the app from their phone? You'd have to be living under a rock to have missed it. It came from a fascinating NY Times profile of Uber's CEO/founder Travis Kalanick and is the opening anecdote, and then it started spreading like wildfire across social media.

Travis Kalanick, the chief executive of Uber, visited Apple’s headquarters in early 2015 to meet with Timothy D. Cook, who runs the iPhone maker. It was a session that Mr. Kalanick was dreading.

For months, Mr. Kalanick had pulled a fast one on Apple by directing his employees to help camouflage the ride-hailing app from Apple’s engineers. The reason? So Apple would not find out that Uber had been secretly identifying and tagging iPhones even after its app had been deleted and the devices erased — a fraud detection maneuver that violated Apple’s privacy guidelines.

But Apple was onto the deception, and when Mr. Kalanick arrived at the midafternoon meeting sporting his favorite pair of bright red sneakers and hot-pink socks, Mr. Cook was prepared. “So, I’ve heard you’ve been breaking some of our rules,” Mr. Cook said in his calm, Southern tone. Stop the trickery, Mr. Cook then demanded, or Uber’s app would be kicked out of Apple’s App Store.

This has created lots and lots of headlines all over the place, claiming that Apple kept tracking ex-Uber users after they'd deleted the app. And some even whining that Apple "let" Uber get away with this with no more than a verbal scolding. The most egregious of these is Andrew Orlowski, over at the Register, who has never found a story about a tech company he couldn't totally misreport to make the company look worse. Here, he claims: Uber cloaked its spying and all it got from Apple was a slap on the wrist. Others just claimed that Uber was "tracking users even after they deleted the app."

Except, if you actually read what the NY Times said it notes that what the company was doing was an anti-fraud detection. Did it break Apple's rules and go too far? Yes, absolutely. Was it bad? Probably. Was it tracking users who deleted the app? No, not at all. Again, there are plenty of legitimate reasons to dislike Uber or to dislike its business practices or its management. But that's no excuse to oversell a story that already looks bad. Uber clearly broke the rules and used a fairly sketchy maneuver to track phones to prevent fraud -- but that's not the same as tracking users who deleted the app. Wired has a pretty clear summary of what actually happened:

Fingerprinting, in and of itself, has plenty of non-invasive uses. Uber, for example, deployed it to help prevent fraud. Being able to identify when a device reinstalls a particular app helps developers spot phones that are, say, bouncing around the black market. In Uber’s case, fingerprinting kept drivers, especially those in China, from gaming a promotion that rewarded them for maximizing ride volume. The company discovered that some drivers were buying stolen phones, creating dummy Uber accounts, and using those phones to call for rides.

When someone uninstalls an app that uses fingerprinting, it leaves behind a small piece of code that can be used as an identifier if the app is ever reinstalled on the device. For the iOS App Store, Apple originally permitted developers to keep track of their users over time using a broad Unique Device Identifier (UDID). Beginning with iOS 5, though, Apple scaled this back, because of the potential privacy implications of giving developers permission to individually ID users even after their app had been uninstalled. Instead, Apple turned to more limited mechanisms, like advertising IDs and vendor IDs. These still give developers the ability to do fraud defense, but with less leeway for potential privacy abuse.

Uber took it one step further, which is to say, one step too far, using application program interfaces designed to access data like an iPhone’s device registry and Apple-assigned serial number.

Again: this is not excusing what Uber did. It clearly broke Apple's rules, and using this kind of fingerprinting can have some problematic consequences for privacy. And, yes, because everything Uber does seems to come included with some secondary component that makes even reasonable actions look bad, the company geofenced Apple's headquarters to try to try to hide the fact that it was doing this. That seems like a pretty blatant admission that the company knew it was breaking Apple's rules. It just doesn't mean that the company was tracking you after you deleted its app.

I certainly understand that there's a long list of actions by Uber that make people not trust the company. And that's completely valid. But if you're going to attack the company, it should be for the bad actions that the company actually did, rather than the exaggerated and misleading descriptions that start spreading across social media.

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Posted on Techdirt - 25 April 2017 @ 9:14am

Senate ID Cards Use A Photo Of A Chip Rather Than An Actual Smart Chip

from the security-by-stupidity dept

Our government isn't exactly known for its security chops, but in a letter sent recently from Senator Ron Wyden to two of his colleagues who head the Committee on Rules & Administration, it's noted that (incredibly), the ID cards used by Senate Staffers only appear to have a smart chip in them. Instead of the real thing, some genius just decided to put a photo of a smart chip on each card, rather than an actual smart chip. This isn't security by obscurity, it's... bad security through cheap Photoshopping. From our Senate.

Moreover, in contrast to the executive branch's widespread adoption of PIV cards with a smart chip, most Senate staff ID cards have a photo of a chip printed on them, rather than a real chip. Given the significant investment by the executive branch in smart chip based two-factor authentication, we should strongly consider issuing our staff real chip-based ID cards and then using those chips as a second factor.

We asked the Senate if there was any way we could get a (heavily redacted, obviously) image of a Senate ID with the "photo" smart chip but (not at all surprisingly) that request was rejected. So, instead, we've got this artist's rendering of what something like it might look like, more or less.

Most of the letter (as the last sentence suggests), is about how the Senate barely uses two factor authentication, which is also kind of stunning. These days, two factor authentication is the absolute basic level necessary for anything that you want to keep moderately secure. That the Senate isn't doing this (and that it's faking smart chips) is preposterous. It's great that Senator Wyden is calling out the Senate IT staff for this very basic failing. I don't know for sure, but a lot about this letter makes me suspect that one Chris Soghoian is behind discovering the lack of a real smart chip and highlighting the lack of true two factor authentication (it's possible it's someone else, but it feels like a very Chris Soghoian thing to notice and call out...).

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Posted on Techdirt - 24 April 2017 @ 9:32am

Stop It. Trump's Lawyers Did Not Say That Protestors Have No First Amendment Right To Dissent

from the yes,-well,-about-that dept

If you're wondering why people who support Donald Trump can repeatedly claim that various mainstream publications traffic in "fake news," look no further than the ongoing news coverage of a lawsuit that was filed against his campaign by three protestors. Yes, we know that reporting on legal issues by mainstream publications is bad, but the reporting on this particular case is so bad that over and over and over again it directly states, or at least implies, things that are simply not true. Over and over and over again, the press has taken fairly mundane and expected aspects of this lawsuit and taken them out of context, misreported them and generally suggested they meant things they absolutely did not. And, of course, every time, the reporting has made the President look bad. It should be quite clear by now that I'm not a fan of the President, who I think may be the least qualified person in office ever, but this particular case is a perfect case study in the kind of biased bad reporting, which will cling to anything to attack the President.

So if you've heard reporting recently about how a Trump supporter was suing the President for inspiring him to violence against a protestor, or how a judge said Trump incited violence at a rally, or how Trump's lawyers claimed there's no right to protest the President at rallies or that the President is claiming that protestors violated his First Amendment rights, then you've been had. None of those are accurate depictions of what's happening. And, amazingly, these all refer to the same exact case. A case where the press can't help themselves but to report everything in misleading ways.

Let's take a step back and explain the details. It's actually an ongoing and fairly interesting lawsuit against President Trump, which we haven't yet covered. Last year, three people who had attended a Trump rally with the intent of protesting sued Trump and his campaign, saying that the then-candidate for President had incited violence against them by telling the crowd to "get 'em out of here" when protestors interrupted his speech (and also saying "in the old days, which isn't so long ago, when we were less politically correct, that kinda stuff wouldn't have happened. Today we have to be so nice, so nice. We always have to be so nice"). Notably, he also said, "Don't hurt 'em. If I say 'go get em,' I get in trouble with the press, the most dishonest human beings in the world."

Now this has some potentially interesting First Amendment issues buried in the case. And it would be nice if someone were actually reporting on those. The complaint itself accuses Trump and his campaign of assault and battery, and tries to get around the clear First Amendment issue (all Trump did was speak) by arguing incitement. As you hopefully know by now there are a very small number of very, very, very limited exceptions to the First Amendment. And those exceptions are extremely narrowly defined, such that they often do not mean what you might think they mean colloquially. In this case, the key hook the plaintiffs are aiming for is that Trump was inciting imminent lawless action (the assault and battery). There are a number of cases on this topic, but without going way deep into the First Amendment weeds, the key one is Brandenberg v. Ohio, in which the Supreme Court said you couldn't punish more abstract advocacy of violence, but rather the speech had to be "advocacy... directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Do Trump's comments at his rallies reach this standard? I don't know. It's generally a pretty tough hill to climb, and if I had to make a prediction in the case, I'd bet that the speech in this case doesn't reach the bar to make it exempt from the First Amendment. And there are a number of reasons that a court may never actually decide this anyway. But, suffice it to say, it's pretty rare for the vast majority of speech to meet the qualifications to meet this test, and people who think that someone saying something mean or racist or obnoxious is not protected by the First Amendment are... generally speaking, going to be wrong.

So, back to the reporting in this particular case. Ken "Popehat" White has already done two explainers on why the first two examples of bad reporting above were wrong, so I'll give you the shortened version on those. The judge in the case did not say that Trump incited violence. Instead, Trump and his campaign filed for a motion to dismiss, which is a pretty standard first move in lots of cases. Quick lesson in civil procedure from a non-lawyer: when you file for what's known as a 12(b)(6) motion to dismiss, you're basically saying "even if all the facts in the complaint are absolutely accurate, there's still not enough there to meet the bar to bring a claim here." That is, this is what you do before you even bother disputing the facts. You tell the court "it doesn't matter whether the complaint is accurate, because even if accurate, that's not enough to state a claim." Or, as Ken explains:

A federal motion to dismiss under Rule 12(b)(6) might be described as saying "so what if I did" — the court takes facts stated in the complaint is true and determines whether they are legally sufficient to support a claim. A judge doesn't take conclusions at face value, but must accept facts in the complaint as true. Think of the distinction like this: if my complaint just says "Patrick defrauded me," the judge doesn't have to take it as true, and can find it insufficient. But if my complaint states the underlying facts — "Patrick offered to sell me a horse, and I gave him $10 for the horse, and when he delivered it, it was a pony," the court must accept it as true and determine whether that's fraud. The Supreme Court has complicated the issue a bit by saying that the allegations must be plausible, but that only means that the complaint must contain factual content that supports necessary inferences supporting the claim. So, for instance, if I said "Patrick conspired to hide a pony in my room, I know because Patrick hates me, and yesterday I found a pony in my room" might not be plausible, because it does not plead any facts supporting my accusation that Patrick is responsible for the pony. But "Patrick told associates to 'introduce Ken to my little friend Benny The Hoof,' and the next day I found a pony in my room," that's factual pleading that is plausible.

A judge turning down a motion to dismiss -- as happened in this case -- is not saying that the allegations in the lawsuit are true. The judge is just saying that the facts in the complaint by the plaintiff meet the bar that if they are true satisfy the elements of the claims in the complaint. So, in this case, the judge found that the protestors' complaint met the bar that if (and this "if" matters) everything in the complaint is taken as true, then there's enough there that Trump's statements might not be protected by the First Amendment, and thus he did incite imminent violence. But, again, this is just based solely on the complaint itself, before any sort of defense has been put forth that either raises issues about the facts claimed, or presents mitigating defenses and the like. The judge didn't say that Trump incited violence -- he just said that the complaint itself met the burden that the case could move forward to see if Trump incited violence.

On the second story, concerning one of the Trump supporters who is accused of attacking the plaintiffs in the case, that individual, Alvin Bamberger, is not suing Trump claiming that Trump made him do it, but rather his answer to the initial complaint basically says, "if I'm found liable, you should actually blame Trump for making me do it." Again, to Ken's analysis:

Bamberger's cross-claim is utterly mundane — a legal way of saying "it's not my fault, it's my codefendant's fault, and he should pay." It's extremely misleading to portray it as if Bamberger independently sued Trump for damages for Trump. He's not asking Trump to pay him, he's asking Trump to pay if and only if Bamberger gets hit with a judgment. He's not even asking Trump to pay his attorney fees, which would have been a more aggressive (but probably not legally supportable) argument. But you wouldn't know any of that by reading the coverage.

On to the most recent claims that came out Friday, first reported by Kenneth Vogel in Politico, that Trump's lawyers are claiming there's "no right" to protest at his rallies or which the Independent claims is Trump saying that protestors violated Trump's First Amendment rights -- those are very, very bad misreadings of what's actually being said. You can (and should) read the filing in question here (or below).

Now, as you recall from the (mis)reporting above, the judge in the district court rejected Trump's 12(b)(6) motion to dismiss, and Trump and his campaign are looking to appeal that at this point in the process (rather than waiting until the district court case goes further -- a so-called interlocutory appeal). In most cases, you can't appeal at this stage, but sometimes a court will recognize that an issue is important enough that it will effectively stop the proceedings and allow a key question in the case to move "upstairs" to an appeals court. What the filing is doing is asking the court to let that happen here: to "certify" specific questions to be sent up to the appeals court and also put the district court case on hold while that appeals process plays out. Basically, Trump's lawyer wants to get that ruling on the motion to dismiss reviewed as quickly as possible before the case moves forward in lower court. This doesn't happen that often, but it does sometimes occur in First Amendment cases, under the reasoning that if the speech turns out to be protected the burden on the speaker is at least somewhat minimized (that is, it's better to settle these issues now rather than drag a speaker -- regardless of whether or not that speaker is the President of the United States -- through the next stage of court proceedings). Specifically, Trump and his campaign want the appeals court to review these two questions:

(1) Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for “inciting a riot”
(2) Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.

Interesting enough First Amendment questions, certainly. In the filing asking the court to certify these questions, Trump's lawyers make a few different points, basically to make it clear that these are important First Amendment issues that deserve being looked at by the appeals court now, before the lower case continues. But a key one that they are making is that part of the First Amendment's "freedom of association," a campaign has the right to exclude those who disagree with the campaign. Specifically, there are cases out there that make it clear that if you're holding a political rally, you have a First Amendment right to exclude those who disagree with you because of your own freedom of association under the First Amendment. The key case here is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. Trump's argument here is simply that based on this pretty well accepted view of the law, his campaign, at a private event, has the right to stop protestors from speaking and escort them out of the venue. That's... nothing special. It's kinda standard and widely accepted law. Notably, Trump's own filing makes it clear (contrary to what you would think from Politico's blaring headline) that the protestors certainly have their own First Amendment right to dissent against the President -- but they don't have the right to insert themselves into his political rally. It's really pretty straightforward:

At the threshold, the forum for this speech was a political campaign rally. Like any other private assembly to achieve ideological goals, political campaigns have a core First Amendment right to associate for the purpose of expressing a particular message, which necessarily includes the right to “exclu[de] . . . views [that] [a]re at odds with positions [the campaign] espouse[s].” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 580 (1995). Accordingly, when a campaign has “decided to exclude a message it d[oes] not like” from a campaign rally, “that is enough to invoke [the campaign’s] right as a private speaker to shape its expression” by excluding or expelling demonstrators who express contrary viewpoints. Id. at 574. Of course, protestors have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose. Indeed, forcing the “private organizers” of a political rally to accept everyone “who wish[es] to join in with some expressive demonstration of their own” would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”

Of course, this is being spun. Lots and lots of people are picking up Politico's headline and pretending that Trump's lawyers are arguing that protestors have no right to dissent. But that's not what is being argued at all. He's saying -- as a pretty damn accurate recounting of very settled law -- that since they were putting on a private event, they have every right to exclude those with different viewpoints seeking to disrupt the event under his own rights of free association.

But, because some are so eager to slam Trump and position him as a wannabe dictator stamping out free speech (which he may well be -- but that's not what's happening here in this case), they're grabbing part of that argument, entirely out of context, and devoid of any understanding of settled law in the matter, and spinning it. And, amazingly, this is even happening with people who should know better, such as Harvard Law professor and constitutional scholar Laurence Tribe. I have tremendous respect for Tribe and his knowledge of the Constitution, but in the last few months, it seems his hatred of Trump is interfering with his more traditional ability to actually look at the issues carefully. Tribe tweeted the following and then pinned the tweet:

If you can't read that (or if Tribe comes to his senses and deletes the tweet), it's responding to another similar article and says "That's a novel view of the 1st Amendment. And by 'novel,' I mean totally wrong as a matter of text, history, precedent, and principle." Except, it's Tribe who's wrong. And, yes, I know that some will quickly run to our comments and note that Tribe is one of the world's most respected constitutional scholars, and I'm not even a lawyer. And, you're correct. But seriously, go and read the actual filing, not the hype around it, and then check the sources. Go read the Hurley decision. What Trump's lawyers are arguing is fairly standard and established law. It's not anything crazy, and for folks like Tribe to argue that it's "totally wrong as a matter of text, history, precedent, and principle" makes me wonder if Tribe actually read the filings in the case, or simply jumped to some conclusions from the headlines or articles.

Again, it should be quite clear by now that I'm no fan of Donald Trump as President. I think his grasp on a variety of issues is atrocious (including free speech -- an issue I've written about many times). But critics of the President don't do anyone any favors in exaggerating a fairly standard legal argument, based on sound legal principles, by taking those filings out of context and putting giant misleading headlines on them. Indeed, all it really serves to do is to validate the claims by Trump supporters of the press being biased against the President and engaging in "fake news."

Update: And of course, in the time that I was getting this story together, Ken White also wrote about it and his analysis is (of course) good as well.

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Posted on Techdirt - 24 April 2017 @ 6:27am

UK Crime Agency's Latest Moral Panic: Kids Modding Videogames May Be A Gateway To Becoming Criminal Hackers

from the and-reporters-lap-it-up dept

Well, it looks like we may have our latest moral panic to deal with. The UK's National Crime Agency is warning that kids modding video games may be a gateway to becoming criminal hackers:

Gaming websites could be spawning a new breed of cybercriminals, according to new research which claims that young people are being indoctrinated into hacking crimes via free and easily-accessible internet pages.

Websites and forums which provide cheat codes and modifications for video games are making it increasingly easy for young people to develop criminal skills and become involved in hacking chat rooms, a report by the U.K.'s National Crime Agency (NCA) has said.

And, of course, the press is lapping it up without any skepticism or criticism. The link above is to CNBC which just assumes the conclusions of the report must be accurate. Then there's the BBC that also parrots the report without question. At least that one admits that this report was based on "a small number of interviews" conducted by the NCA, but then jumps in full bore with the moral panic:

At the heart of the NCA's report is a simple but worrying conclusion: the internet is creating a new kind of criminal.

Young people who in the real world wouldn't dream of committing a crime are, in their online world, stealing other people's data, vandalising websites, taking down servers. Breaking the law, causing real damage to real victims.

Next thing you know, we're going to see advertisements and concerned local newscasts warning parents to watch out for their kids modding games or visiting cheat forums. The BBC's report goes full-on with the scaremongering:

This world can seem very seductive. Where you can make "friends" quickly and easily and you are praised for your skills, rather than being criticised for being a "nerd". But it is also a place where the vulnerable or naive can become criminals without quite realising what they are doing.

The bad news is that suspects are getting younger. Seventeen is the average age, according to the National Cyber Crime Unit, but some are as young as 12.

Of course, all of this ignores that the vast majority of people who mod games or use cheat codes don't go on to become criminal hackers.

In this age where having more people knowledgeable about computers and programming is important for future innovation, these kinds of scaremongering reports do a hell of a lot of damage. Lots of really smart techies got their programming chops started by messing around with video games. Having parents stop them from tinkering because of this overblown report of how it's a "gateway" to crime could do a lot of damage.

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Posted on Techdirt - 24 April 2017 @ 3:20am

Homeland Security's Inspector General Investigating Attempt To Unmask 'Rogue' Tweeter

from the so-much-to-investigate dept

As you probably recall, a few weeks ago Twitter sued Homeland Security after it received a summons from Customs & Border Patrol seeking to identify any information about the @ALT_uscis account. USCIS is the US Citizenship and Immigration Service, and the "alt" part is similar to many other such accounts purporting to be anonymous insiders in the government reporting on what's happening there (whether or not the operators of those accounts truly are inside those organizations is an open question). Anyway, the issue here is that such a use of Twitter would be protected by the First Amendment, and unless the account was revealing classified info, it's unlikely that there would be any legit means to investigate who was behind the account. And, because of that, it certainly appeared that Customs and Border Patrol decided to use illegitimate means to get the info. Specifically it sent a 19 USC 1509 summons, which is an investigative tool for determining the correct duties, fees or taxes on imported goods. As you can see, identifying a Twitter user does not seem to fit into what that law is for.

Having been called out on this in federal court (and, one hopes, having DOJ lawyers chew out DHS/CBP folks), the feds dropped the summons hours later and Twitter withdrew the lawsuit.

However, abusing the law to seek out information like that is a pretty major abuse, and is one that shouldn't just let everyone move on afterwards without some sort of accountability. Senator Ron Wyden asked Homeland Security's Inspector General if it was investigating this and, in a fairly straightforward and open letter, DHS IG, John Roth, lets Wyden know that an investigation is ongoing and even clarifies what they are investigating and why. The letter itself is pretty clear, so I'll just post a chunk of it here:

While we typically do not comment on open investigations, it has come to my attention that there may be some confusion about the scope of DHS OIG’s work relating to this matter. Specifically, we have been asked to clarify which, if any, of the following three issues we are investigating:

(1) Misconduct on the part of the owner of the @ALT_USCIS Twitter account, who CBP suspected was a DHS employee;
(2) CBP’s use of its summons authority in this particular case; and
(3) Use of summons authority across the Department.

Regarding the first issue, we were asked by CBP to assist their efforts to determine whether the tweets at issue disclosed any classified information. To that end, we helped CBP pull the content of @ALT_USCIS’s tweets off the internet and cross-reference that content against data in DHS systems to determine whether the information was classified. We have concluded that no classified information was released via the @ALT_USCIS Twitter account.

I’d like to make clear that DHS OIG has not played any role in attempting to identify the owner of the @ALT_USCIS Twitter account, and only learned of the issuance of the March 14, 2017 summons when it was reported in the media. Our investigation protocol includes controls for situations in which First Amendment activity is implicated, and we strive to ensure that our work does not have a chilling effect on individuals’ free speech rights. I can confirm that DHS OIG is not investigating, and will not investigate, any alleged misconduct on the part of the @ALT_USCIS account owner relating to his or her use of the Twitter account.

Regarding the remaining two issues, I can confirm that DHS OIG is investigating whether the investigation conducted by CBP’s Office of Professional Responsibility relating to the @ALT_USCIS Twitter account was improper in any way, including whether CBP abused its authority in issuing the March 14, 2017 summons to Twitter. DHS OIG is also reviewing potential broader misuse of summons authority at the Department and/or its components.

That's pretty clear and makes sense. They looked and found no classified info being revealed, they've been careful to not seek any other way of identifying the owner of the account, or to do anything that might chill speech, and they are actively investigating if CBP abused its authority (beyond just this one case). I look forward to find out the results of that investigation.

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Posted on Techdirt - 21 April 2017 @ 2:38pm

Tech Companies Continue To Tell Courts To Reject Trump Travel Exec Order

from the speaking-up dept

Earlier this week we noted that 162 tech companies (including us) had signed an amicus brief for the appeal in the 4th Circuit (in Virginia) arguing that President Trump's travel ban executive order was unlawful. The same group of companies (plus one more -- as it looks like Pandora was added to the latest) have filed basically the same amicus brief in the appeal in the 9th Circuit (which is the appeal of the decision in Hawaii that a smaller group had filed an amicus brief on as well). As with last time, people are going to come up with all sorts of conspiracy theories over this, but the fact is this is an issue that matters to many, many people who work at these companies, and the companies have committed to speaking out about it.

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Posted on Techdirt - 21 April 2017 @ 11:38am

How Garry Kasparov Learned To Stop Worrying & Love The Machines That Beat Him At His Job

from the and-others'-jobs-as-well dept

There's been an awful lot of talk these days about how the machines (and "AI") are coming to take all of our jobs. While I'm definitely of the opinion that the coming changes are likely to be quite disruptive, many of the doom and gloom scenarios are overblown, in that they focus solely on what may be going away, rather than what may be gained. If there's anyone out there who might be forgiven for worrying the most about computers "taking over," it would be Garry Kasparov, the famed chess champion who took on the Deep Blue chess playing computer and lost back in 1997. However, in a new (possibly paywalled) WSJ piece, Kasparov more or less explains how, even now as AI is moving into all sorts of fields previously thought safe from automation, he's come to embrace the possibilities, rather than fear the losses:

It is no secret that I hate losing, and I did not take [losing to Deep Blue] well. But losing to a computer wasn’t as harsh a blow to me as many at the time thought it was for humanity as a whole. The cover of Newsweek called the match “The Brain’s Last Stand.” Those six games in 1997 gave a dark cast to the narrative of “man versus machine” in the digital age, much as the legend of John Henry did for the era of steam and steel.

But it’s possible to draw a very different lesson from my encounter with Deep Blue. Twenty years later, after learning much more about the subject, I am convinced that we must stop seeing intelligent machines as our rivals. Disruptive as they may be, they are not a threat to humankind but a great boon, providing us with endless opportunities to extend our capabilities and improve our lives.

There's a lot more in the essay, but basically Kasparov recognizes that there's tremendous opportunity in looking at what smarter machines can actually do to help more and more people:

What a luxury to sit in a climate-controlled room with access to the sum of human knowledge on a device in your pocket and lament that we don’t work with our hands anymore! There are still plenty of places in the world where people work with their hands all day, and also live without clean water and modern medicine. They are literally dying from a lack of technology.

And, towards the end, he notes that while there may not be easy answers, there are plenty of opportunities. While many people today insist that since they cannot think of what the new jobs will be, there can't possibly be any, the reality is that just a few decades ago, you would probably not have been able to predict many of today's internet/tech related jobs. And Kasparov is optimistic that freeing us up from more menial jobs may open up much greater opportunities for people to put their minds to work:

Compare what a child can do with an iPad in a few minutes to the knowledge and time it took to do basic tasks with a PC just a decade ago. These advances in digital tools mean that less training and retraining are required for those whose jobs are taken by robots. It is a virtuous cycle, freeing us from routine work and empowering us to use new technology productively and creatively.

Machines that replace physical labor have allowed us to focus more on what makes us human: our minds. Intelligent machines will continue that process, taking over the more menial aspects of cognition and elevating our mental lives toward creativity, curiosity, beauty and joy. These are what truly make us human, not any particular activity or skill like swinging a hammer—or even playing chess.

I am sure that some will dismiss this as a retread of techno-utopianism, but I think it's important for people to be focusing on more broadly understanding these changes. That doesn't mean ignoring or downplaying the disruption for those whose lives it will certainly impact, but so much of the discussion has felt like people throwing up their arms helplessly. There will be opportunities for new types of work, but part of that is having more people thinking through these possibilities and building new companies and services that recognize this future. Even if you can't predict exactly what kinds of new jobs there will be (or even if you're convinced that no new jobs will be coming), it's at the very least a useful thought exercise to start thinking through some possibilities to better reflect where things are going, and Kasparov's essay is a good start.

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Posted on Techdirt - 20 April 2017 @ 3:13pm

The Weird Antitrust Questions Of A Google Chrome Ad Blocker

from the i-don't-envy-the-lawyers-here dept

So rumors have started flying that Google is about to build some ad blocker technology into Chrome, that would block ads that the company considers to be "unacceptable ads" -- as determined by the "Coalition for Better Ads." Of course, while a coalition for "better ads" sounds like a good thing, this Coalition for Better Ads has been criticized. It was put together by the biggest companies in the internet ad space, and many worry that it's just an attempt to whitewash over a lot of bad practices by declaring just the extremely egregious practices as "bad." Either way, the original report from the paywalled Wall Street Journal notes that the ad blocker might even block all ads on sites that run "bad" ads (i.e., not just the bad ads).

There have been all sorts of reactions to the news of a built-in Chrome ad blocker, but a lot of people are raising the antitrust questions. Obviously, Google is unlikely to consider its own ads to be the "bad ads." And thus, an official Google ad blocker -- especially one that allows its own ads through and is default on its very popular browser -- at least raises eyebrows about antitrust issues. There's a strong argument to be made (and I'm pretty sure that some ad firms would raise this with a court within a day or so of such an ad blocker being released) that this is an anti-competitive move to suppress competing ad firms.

But... then again, there's the fact that lots and lots of people (quite reasonably!) hate ads. And a system to block "bad" ads is a pretty clear consumer benefit (which I imagine would be Google's key defense). And, of course, Chrome (and other browsers) have had a form of ad blocker for ages already in that they block pop up/pop under ads. So it could be argued that this kind of thing is already done, and how different is this?

Of course, there might also be a more nuanced antitrust claim -- that this is an attempt to destroy the business of other ad blockers that are more aggressive in blocking ads -- including Google's ads. The argument there is that by offering a built-in ad blocker that handles the worst of the worst ads, users are less likely to install the optional more comprehensive ad blockers, thus protecting Google's ad business. That's one that Google may have a much tougher time with.

Still, it does seem... tricky, to think that by providing users with a better default experience, that might also mean antitrust problems. That, of course, is where things always get tricky around antitrust issues like this one. Improving life for consumers is good... but doing so in a way that leverages a dominant position that potentially harms other ad blockers... is almost certainly going to lead to a lot of lawyers making a lot of money. But it also puts Google in a difficult position if its goal really is to stop bad advertising (and I know some will insist that's not Google's goal at all -- but just assume that it is and figure out what can Google actually do here?). Just as in some of the search antitrust cases, where sites with bad content were pushed down the rankings and sued (and lost... but still impacted some antitrust investigations), it becomes tougher to actually take steps to improve the web browsing experience for users.

If I were in Google's shoes I'm not sure I'd go through the trouble of doing this, even if it would help in other ways. With so many folks gunning for the company these days, it seems like it's going to be costly in fending off antitrust challenges.

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Posted on Techdirt - 20 April 2017 @ 1:10pm

162 Tech Companies Tell Appeals Court That Trump's 2nd Travel Ban Is Illegal

from the speaking-up dept

As you'll recall, back in early February, over 100 tech companies signed onto an amicus brief, arguing that President Trump's initial plan to bar immigration from certain countries was unconstitutional and illegal. A month later, a smaller group of companies signed onto an amicus brief in the district court in Hawaii concerning the revised travel ban (and a few people noted that some of the companies that signed onto the first brief had not signed onto the second one -- wondering if that meant many companies weren't as worried about the revised ban. Except, yesterday an even larger group of tech companies (162 in total) signed onto a new amicus brief for the 4th Circuit court of appeals which is the next appeals court hearing a case on the revised travel ban. And, yes, we at the Copia Institute signed onto this one as well (we also signed onto the first two).

It seems likely that some companies just sat out the Hawaii case because it's in a district court, and amicus briefs aren't always as welcome in district courts, and some lawyers view them as wasteful at that stage. Amicus briefs tend to really only matter in appeals courts (or, of course, the Supreme Court). You can read the full brief here (or below), as it makes the case that even the revised ban doesn't solve the problems of the original ban. It's worth reading carefully. It's good to see all of these companies continue to stand up for what's right, especially when it would be easy to sit back, do nothing, and play nice with the new administration.

And, because I know that some people will insist that the only reason that tech companies have signed onto this is because it gets them cheap labor or some other such criticisms, I can assure you that in many cases, the participation in these amicus briefs is being driven by the employees at these companies, demanding that management stand up and speak out, rather than a top down decision. Many people feel strongly -- as I do -- that being a country that is welcoming to immigrants is an important part of being American. No one's arguing that there shouldn't be background checks and "vetting" and the like -- but the executive order goes way beyond that.

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Posted on Techdirt - 20 April 2017 @ 11:43am

Artist Sues Church For Moving His 9/11 Memorial Sculpture

from the this-again? dept

It's pretty rare for us to bring up the issue of "moral rights" over creative works in the US, and even rarer to directly reference VARA -- the Visual Artists Rights Act of 1990 -- and yet, here we are, twice in one week discussing VARA claims. Even more incredibly, both are about sculptures that were placed for free in parts of lower Manhattan, right off Wall St. The claim that's received lots of attention was the one over the Wall St. Bull and the fact that another statue was placed near the bull, which the artist claims changes his message, and thereby violates VARA. This other claim is from another sculptor, Steve Tobin, who is suing Trinity Church for moving his 9/11 memorial sculpture to Connecticut.

VARA, if you don't remember, was a bill passed in 1990, as a half-assed way to try to pretend that the US is in compliance with the Berne Convention -- the large (and almost entirely awful) international agreement on copyright and copyright related issues. Part of the Berne Convention requires that countries signing on recognize so-called "moral rights." For the most part, copyrights are considered economic, rather than moral rights, which is why they can be bought and sold. Moral rights, on the other hand, are a concept more popular in Europe, which argue beyond the economic rights, the creators of works have certain "moral" rights in what is done with those works. In order to pretend that the US fulfilled the Berne Convention requirements without actually introducing a full moral rights regime, Congress passed VARA in 1990, which gave fairly limited moral rights only to "visual" works like paintings and sculptures. The specific moral rights granted include the right to claim authorship in the work you created, and to prevent the destruction or mutilation of your work -- which is what we discussed in the case of the Wall St. Bull (even though VARA likely doesn't apply to the Bull).

So, now for the details of this case. The Art Newspaper (the link above), which first wrote about this story, did not post a link to the filing (side note: I never understand why journalists don't link to source material if they have access to it). You can read the whole thing here. But the quick summary, as explained in the link above, is this:

The sculpture The Trinity Root recalled a sycamore tree that stood in front of the 320-year-old church and bore the brunt of the debris from the collapse of the Twin Towers on 11 September, preserving the church from more extensive damage. Tobin convinced the rector of the church at the time to allow him to excavate the stump and roots of the tree so that he could create a bronze memorial. The artist was not paid by the church and covered the production costs himself—estimated at more than $1m according to the lawsuit filed in federal district court on Wednesday, 12 April—on the promise that the work would remain in the courtyard permanently.

The sculpture was installed in 2005, but a different rector decided it should be removed in 2015, without informing the artist, and relocated to a church-owned seminary in northwestern Connecticut. “The new rector, Dr William Lupfer, didn’t like it, thought it was ugly and took up too much real estate and wanted it gone,” said Kathleen Rogers, Tobin’s business manager. In the process of moving the three-tonne sculpture, some elements were damaged, the lawsuit says.

You can see a snapshot of the Trinity Root by Tony Fisher here (licensed under a CC-BY 2.0 license):

The Trinity Root - 9/11 Memorial

Large sections of the filing focus on the fact that in multiple press announcements and stories about the Trinity Root, the church mentioned that the sculpture would be a "permanent" installation (and in at least one case, Tobin himself put out a press release with the same claim, and the press release had the church's approval).

The lawsuit goes to great lengths to also note that this is Tobin's most famous work, that it's tied up with his reputation and that lots and lots of people come to visit it. Oh, and also he explains just how much effort was taken in creating, transporting and installing the sculpture (they even had to get the George Washington Bridge to close to allow him to transport the sculpture across it. In other words, this was no small undertaking. There's also a video of the creation, transportation and installation of the Trinity Root:

The complaint also reveals some of the discussions that Tobin had with Trinity Church after finding out that the new Rector didn't like the sculpture (or the crowds that came to see it). Tobin keeps telling the Church that the artwork is "site specific," and the church keeps asking him if he'd help them move it away at the church's expense. Also this: according to the lawsuit, as Tobin kept arguing with the church over moving the sculpture, they apparently went and did it anyway without telling him, and they continue to discuss over the phone with him his objections to moving it, without mentioning that they had already moved it.

One more twist in the contract between Tobin and the church is that Tobin agreed to one of those "you give us everything" clauses reading:

Under the heading "OWNERSHIP; COPYRIGHT" the Agreement further provided that "Tobin hereby transfers and assigns to Trinity by charitable donation all right, title and interest to the Sculpture and all materials related thereto (including but not limited to all sketches, photographs and audio-visual footage), including but not limited to the copyright therein, and any cause of action that Tobin may have with respect thereto, in perpetuity throughout the universe, for use in any manner and in any media now known and hereafter invented."

The question is whether this would count as a waiver of moral rights under VARA. You can't assign your moral rights to another party, but you can waive them. But a waiver, under VARA, has to be written and it has to specify the "uses of that work to which the waiver applies." Tobin's lawyers have a point that the above doesn't seem to be a waiver (and, Trinity Church might want to talk to whatever lawyer drew up that agreement...).

Finally, it's revealed that in moving the sculpture from Manhattan to Connecticut, the statue was damaged in a few places, which gives Tobin more of a claim under VARA for "mutilation" of his work.

So what does this all mean... At a glance, it seems like Tobin has a much more credible claim under VARA than the guy who created the bull, but it still seems... nutty. The idea that the church can never move a statue in its courtyard just seems wrong. And, at the very least, this case is another example of why we should let the Copyright Office know that expanding moral rights is a really bad idea. Remember, the Copyright Office is currently studying the question of expanding moral rights, and the comment reply period is still open (until May 15th).

In the end, while the damaging of the statue perhaps adds at least some greater credibility to the VARA claim -- even though it wasn't designed to be a mutilation, just an accident while moving -- the fact that an artist can claim (even after giving up all rights and title to the piece) that because the piece has some connection to a site, the owners can no longer move it, would be really, really dangerous. Yes, there's a stronger argument here as to why this one location is directly tied to this piece of artwork (and many other artists would have trouble showing the same level of connection), any time you argue that artwork is so connected to its siting that moving it would violate the law... something seems to have gone wrong. I can certainly understand why the artist is upset, but as we noted with the bull, artists give up quite a lot of control when they let art out into the world and, as in this case, hand ownership over to a third party.

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Posted on Techdirt - 19 April 2017 @ 11:50am

Actual Lawyer Thinks That Criminalizing Showing Murder On Facebook Will Prevent Murders On Facebook

from the where-did-you-get-your-law-degree? dept

Earlier this week, we wrote about the silly take at Wired, more or less suggesting that it was somehow Facebook's issue that a troubled individual took a video of himself randomly killing an elderly man and then uploaded the video to Facebook. Unfortunately, others have had similar takes, including the New Yorker's Steve Coll, whose piece is mostly balanced and admits that it's basically impossible for Facebook to prevent this thing... but then at the end ignores all that and says, effectively, "Well, Facebook's big so it has no excuse not to do something."

That is a fair and restrained assessment, but Facebook cannot expect to plead growing pains or a lack of resources for much longer. At the end of last year, the corporation reported holding almost thirty billion dollars in cash and marketable securities; its annual profit exceeded ten billion dollars for the first time. Facebook can afford to slow down and take on more of the risks associated with curating content—the risks of not doing so being increasingly glaring. Its engineers might, in addition to their habitual writing of improved algorithms, consider the durable oath of a profession that has long wrestled with the kinds of ethical quandaries that arise from innovating in the pursuit of the greater good: first, do no harm.

That's one of those things that sounds good to someone who hasn't thought through the actual consequences of what they're saying. When you argue that Facebook should "slow down" and "take on more risks associated with curating content," you're arguing that Facebook should censor more content. Think of how that plays out in reality. Because we know already: every time Facebook takes down "good" content, the same media folks start bitching and screaming about how Facebook is so bad at moderating content. Remember Facebook blocking Napalm Girl? While Coll didn't address that issue himself, just months ago, he raved about the importance of Napalm Girl and how adults need to see this kind of thing to "pause and reflect upon the costs of war." But, apparently having them confront murder is a step too far.

But... that is not the worst take on this whole thing. So far, that award goes to Danny Cevallos, a legal analyst for CNN and apparently a real practicing criminal defense attorney. His argument is not to blame Facebook... but to criminalize posting murder videos to Facebook. It's not often that you see a criminal defense attorney arguing for more crimes, but here we are.

To be fair to Cevallos, he's not the first to come up with an idea this dumb. As online video became more popular, and as stories emerged of people (often young kids) filming themselves doing stupid things online, various grandstanding politicians have often argued that filming crimes should be illegal, arguing (often without any evidence) that the only reason these people were doing stupid/illegal things was because of the draw of being able to film them and post them online. This reached a fever pitch a few years ago when a legislator in South Carolina picked up on an exaggerated moral panic about the idea of the "knockout game" -- in which people filmed themselves punching unsuspecting people -- and wanted to pass a law saying that it was illegal to film a crime.

That's more or less where Cevallos goes, though he'd limit it to just murder videos:

Use the law to deter this sort of depraved predator. We can criminalize the criminal's act of broadcasting his crime.

In for a bit, Cevallos digs in deep:

When it gets into the realm of a horrendous crime like the recent shooting, what is to be done? As heretical as it is for a criminal defense attorney like myself to say, deterrence could help. More criminal legislation: enhancements, penalties, mandatory minimums.

And how the crime and its victims are legally framed is key. Whether it's murder or simple assault, acts of violence that are also posted online create additional victims in the audience: the public at large. Broadcasts of intentional violence intimidate a civilian population, just as terrorism does.

What?!? Now he's comparing broadcasting a murder tape as terrorism? Who exactly is intimidated? Will it horrify people? Yes, absolutely. But that's not illegal, nor should it be.

Also, there's this. How the hell is this actually a deterrence? What kind of person will say "Well, I was going to shoot that guy and broadcast it on Facebook, but since broadcasting it is illegal, I guess I won't." Really. Who? If you're going to murder someone, you've already kinda committed to breaking basically the most serious law we have. Somehow, I doubt that the additional charge of "Oh, and he put it on Facebook," is going to change the incentives much.

And, then, of course, Cevallos starts digging deeper with a really terrible First Amendment analysis (especially for a media company like CNN to publish). All it's missing is the explicit use of the bullshit "fire in a crowded theater" trope.

The challenge here is that criminalizing Facebook broadcasts of one's crimes does potentially infringe upon one's freedom of speech about those crimes. The US Supreme Court held that the original Son of Sam law ran afoul of the First Amendment, because the suppression of speech was not narrowly tailored enough.

However, the First Amendment has plenty of limits, and today, almost all the states and the federal government have laws prohibiting those criminals who plan to profit from their crimes from doing so. The ability to profit still shouldn't be constitutionally-protected.

Pretty simple rule of thumb: your First Amendment analysis is bad and you should feel bad if it's basically limited to "Well, there are exceptions to the First Amendment, so surely the exception I want should be fine." Hell, it's near the top of Popehat's famous "censorship tropes" in discussions of free speech.

But Cevallos isn't done. After already carving out a new exception to the First Amendment, he then also argues that posting your own murder video maybe would fit under the very limited and extraordinarily narrow "obscenity" exception to the First Amendment:

It's a tougher question whether "killing videos" could be additionally penalized as obscenity. This is because the term "obscenity" generally applies to depictions of sexual acts. The Supreme Court has held that violence alone is not obscenity.

On the other hand, obscenity may extend to deviant acts that are not sexual, and images of extreme cruelty alone could possibly be obscene, as evidenced by a case involving videos of animal cruelty. Indeed, "animal crush videos" — which are every bit as horrific as they sound — may be outlawed, even if sexual activity is not depicted.

Again, the legal analysis is... lacking any substance whatsoever. It's basically "Well, animal crush videos can be outlawed, so sure, murders on Facebook too."

Criminalizing the broadcast of crimes like Robert Godwin's shooting death is doable. It won't prevent these attacks, but it will deter them.

It will deter them... based on what evidence exactly? Just in your head?

Finally after all that nonsense, Cavallos points out just about the only accurate thing, and hilariously calls it "perverse": the fact that what these videos do is provide all the evidence law enforcement needs to prosecute individuals for the crimes they're committing on video:

The perverse upside is that social media creates a treasure trove of evidence: the criminals of social media may harm the society that views them, but they often assist the authorities in prosecuting them.

Yeah, that's not "perverse." That's why the rest of your article makes no sense. The video is evidence of a crime. Layering on another, much lesser crime just for posting the video doesn't deter crime. It deters people making it easier to catch, arrest and convict themselves of committing crimes. CNN needs better legal analysts.

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Posted on Techdirt - 19 April 2017 @ 9:27am

Why Is The Hotel Industry More Focused On Harming Airbnb Than Improving Their Own Product?

from the innovate-and-compete,-guys dept

It's no secret that the hotel industry hates competition from Airbnb. Hell, politicians have even admitted to crafting anti-Airbnb policies to keep hotels from being disrupted. But, now, the NY Times has got its hands on a specific plan from the hotel industry to basically hamper Airbnb and burden it with legal and policy challenges (I should note, by way of some sort of disclosure, that I'm typing this while sitting at a desk at an Airbnb apartment in Washington DC -- and, similarly, that it's much nicer and significantly cheaper than comparable hotels, but I digress...).

Last year, Airbnb underwent a rough regulatory patch.

The short-term rental company became a Federal Trade Commission target last summer after three senators asked for an investigation into how companies like Airbnb affect soaring housing costs. In October, Gov. Andrew M. Cuomo of New York signed a bill imposing steep fines on Airbnb hosts who break local housing rules.

The two actions appeared unrelated. But one group quietly took credit for both: the hotel industry.

Years back, we wrote about writer Andy Kessler's concept of political entrepreneurs v. market entrepreneurs, which (loosely defined) were those who basically used policy making to lock up markets for themselves and restrict competitors as opposed to entrepreneurs who innovated and created more value in the market by serving customers. In more traditional economics, it's rent seeking v. market innovation and growth. Most people recognize how rent seeking is bad: it's using the levers of regulations and politics to limit competition and innovation, in order to extract a greater share of the revenue/profits (since there's less competition, if any) while similarly limiting innovation and economic growth that improve people's lives.

And the hotel industry seems like a prime example of this right now.

Both were partly the result of a previously unreported plan that the hotel association started in early 2016 to thwart Airbnb. The plan was laid out in two separate documents that the organization presented to its board in November and January. In the documents, which The New York Times obtained, the group sketched out the progress it had already made against Airbnb, and described how it planned to rein in the start-up in the future.

The plan was a “multipronged, national campaign approach at the local, state and federal level,” according to the minutes of the association’s November board meeting.

The NY Times report has many more details, but all of it is basically summed up as "annoy Airbnb and limit their ability to grow as much as possible." There doesn't appear to be anything in there about "providing a better experience to our customers so they might prefer us to Airbnb." There doesn't seem to be anything in there about "better competing with Airbnb." Nope, it's entirely about trying to undermine Airbnb. I've noted in the past (and in this post!) that I've used Airbnb a bunch, and have found it almost universally better than hotels. The experience is more unique, but also just... better overall. And I've spoken with many Airbnb hosts. It's true that some are running "businesses" renting out multiple units on Airbnb, but isn't opening up more people for running successful small businesses a good thing?

And, yes, I know lots of people like to claim that Airbnb is driving up rent -- even if the data doesn't currently support that claim. But even if true (and, again, it's the hotel lobby that has mostly been pushing this narrative, though plenty of well meaning folks have picked up on it), that's an issue to deal with in other ways (such as increasing housing stock, rather than limiting it with other regulations) rather than shutting down a useful business that opens up new opportunities, and can also increase tourism and local business.

Again, it's perhaps no surprise that the hotel industry has been fighting Airbnb, but with the NYTimes getting its hands on the actual strategy documents from the hotel industry, that industry has made it clear that it's seeking to shut down and limit competition, rather than innovate themselves.

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