Posted on Techdirt - 29 June 2016 @ 8:40am
Sudhir Yadav appears to be a bundle of contradictions. He claims to be a "right to information" activist, yet he's now trying to stomp out encryption. He argues that he's addicted to WhatsApp, but he wants the Indian Supreme Court to ban it. He's filed a "public interest" lawsuit with the Supreme Court arguing that (1) he's addicted to WhatsApp because of its recently implemented end-to-end encryption and (2) that it should be banned because bad people might use it to, you know, plans raves and stuff:
Yadav claimed that he has only filed the petition because recently introduced WhatsApp encryption makes it impossible for the government to intercept and read messages exchanged between “suspicious people”.
“I know WhatsApp is a great app and I spend hours on it but this is about you and me,” he said. “If we know that information on drugs and rave parties is going through WhatsApp and the government can’t decrypt these messages, then it’s harmful to the country.”
And, yes, he also tossed in the "fear! terrorists!" argument as well, because of course. And it's not just WhatsApp. He also wants a variety of other messaging platforms, such as Telegram, Hike and Viber, banned for using encryption (even though the implementations on many of those platforms is questionable). Of course, we don't need to go through all the reasons why this is dumb. Strong encryption is much more likely to help protect
the private information of the general populace from people looking to do bad things with it than it is to help terrorists in their planning. Could terrorists use it? Yes, just as terrorists can use other neutral, but important technologies for bad purposes. But we don't go and ban them entirely just because they can be misused.
Meanwhile, Yadav is making this out like he's being selfless in being willing to give up his WhatsApp:
“I love WhatsApp but I will have to find an alternative if it’s banned," he said. "I don’t know if there is an app that good but I will keep looking.”
And what happens if SC decides that his petition doesn’t have enough merit? Yadav said that he will simply go back to using WhatsApp.
“I can’t do much if the SC thinks it’s not harmful for the nation’s interest. It’s not a personal issue, it’s a national issue so my usage won’t be affected.”
It's a national issue for you to try to undermine the safety and data protection of hundreds of millions of people? Really?
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Posted on Techdirt - 29 June 2016 @ 6:19am
Yesterday, Karl covered Hillary Clinton's newly released platform on technology & innovation as it related to broadband policy and encryption. Today I wanted to look through what it said on another set of key issues to folks around Techdirt: copyright and patent policy. And, as with Karl's post yesterday, there appear to be some things that sound good, but are so vague and devoid of actual nuance as to be laughable. I get it: this is the political platform of someone running for President, and thus it's going to be worded in a vague and noncommital way on these issues, because these aren't issues that lead people to decide whether or not to vote for someone as President.
On the good-sounding side, there are promises about dealing with the orphan works problem and the patent troll problem. But they're weighted down with language that is quite vague and could mean almost anything, including lots of bad policy proposals.
Effective Copyright Policy: The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system. It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding.
Now, just the fact that a Presidential campaign mentions that there's a problem with copyright law blocking access to content is somewhat revolutionary, so kudos to whoever got that into the plan. But the weird "while protecting the innovation incentives in the system" trailing line could mean anything
and is designed to be just vague enough for anyone to read anything into it. What are the "innovation incentives in the system" right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it's long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment.
The fact that the orphan works problem gets called out is exciting, but even then the solution isn't clear. The only real
solution to the orphan works problem is to go back to a system of formalities, requiring registration to get a copyright. Then place stuff that isn't registered and where there's no way to contact the copyright holder in the public domain
. Boom. Problem solved. But it seems unlikely that that's where Clinton is going with this.
In the more detailed fact sheet
, the expansion of these ideas is basically just the same thing as the condensed version but with way more words:
Effective Copyright Policy: Copyrights encourage creativity and incentivize innovators to invest knowledge, time, and money into the generation of myriad forms of content. However, the copyright system has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age. Hillary believes the federal government should modernize the copyright system by unlocking—and facilitating access to—orphan works that languished unutilized, benefiting neither their creators nor the public. She will also promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. She will seek to develop technological infrastructure to support digitization, search, and repositories of such content, to facilitate its discoverability and use. And she will encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the U.S. and abroad.
Open licensing is good. Removing barriers to effective licensing is also good. But there's no plan here. People have talked about these things for ages and never gotten anywhere because entrenched interests don't want this kind of thing to happen at all.
Also, there's a weird call out to SOPA -- but not
in the copyright section. Rather, she mentions it in the net neutrality section because whatever, no one cares:
She also maintains her opposition to policies that unnecessarily restrict the free flow of data online –such as the high profile fight over the Stop Online Piracy Act (SOPA).
The language choices here appear to have been workshopped by a committee of hundreds. What the hell does this mean? Does it mean that she would oppose the fight over SOPA? Or SOPA itself? Because it's pretty clear that she's implying that she would oppose things like SOPA (which, again, had nothing to do with net neutrality). But she also was a SOPA supporter
-- at least until it was politically inconvenient. During the height of the SOPA battle, she sent a letter
insisting (contrary to the statement in her new platform) that there was "no contradiction" between supporting the free flow of information and enforcing strict copyright laws:
"There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the internet."
So if she believes that, then SOPA wouldn't have restricted the free flow of data. Of course, once the public tide turned against SOPA -- guess what -- so did Hillary
, suddenly making it out to have been an important fight for internet freedom, even though she denied that very point just months earlier:
“The United States wants the Internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the Internet itself from plans that would undermine its fundamental characteristics.”
In other words, like a standard politician, we've got vague promises and flip flops -- along with ignoring previous positions when convenient.
As for patents, for the short version, we've got:
Improve the Patent System to Reward Innovators: Hillary will enact targeted reforms to the patent system to reduce excessive patent litigation and strengthen the capacity of the Patent and Trademark Office, so that we continue to reward innovators.
Again, vague language that can be taken in many different ways (again, obviously on purpose). The good: highlighting the problem of "excessive patent litigation" is definitely a good sign and is basically an acknowledgement of the problems with the patent system -- mainly patent trolling, but that should include excessive litigation by operating companies as well. But again, that's immediately weighed down by what follows, which could mean basically anything
. Strengthening the capacity of the PTO... for what? To reject bad patents? That would be good. To grant more patents? That might be bad. And the whole "so that we continue to reward innovators." What does that mean? If you believe that the patent system itself rewards innovators, then that would mean encouraging more patenting. If you believe that the patent system is stifling innovators, then that should mean ending bad patents that are used to hinder innovation. Which is it? Who the hell knows. And I doubt Clinton herself has any real understanding of the issues here either.
The longer version makes it clear she's supporting some of the current anti-patent troll legislation, which is a good thing:
The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest.
Those are good things. But then we've got the expanded explanation of strengthening the PTO and again it's a giant "huh?"
Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund—ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.
Of course, this is somewhat contradictory with the stuff raised earlier. Fee retention is one of those ideas that perhaps makes sense, but skews the incentives in dangerous ways, possibly pushing the PTO to encourage more patent applications and patents in order to get more fees. Similarly, "faster review" historically has meant lots more crappy patents getting approved -- leading to more patent trolling over bogus patents.
So, basically, she's promising points to the two key sides of the patent debate, without noting how the two plans are in conflict with each other if she's looking to solve real problems.
Again, none of this is a surprise. This kind of wishy washy political language where none of it really means anything is par for the course for just about any major politician, and Clinton has historically made this kind of noncommittal hand-wavy bullshit an artform all her own. She's not looking to solve real problems. She's looking to convince you that she's actually heard of the pet problem you're focused on and she has a vague plan to "solve it." Never mind the details or the fact that the plan conflicts with other parts of her plan.
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Posted on Techdirt - 28 June 2016 @ 2:08pm
We've mentioned and linked to the wonderful SCOTUSblog many times in the past, and have even mentioned its annual running of the trolls, in which the site's Twitter account responds sarcastically to people who think that it is the Supreme Court's twitter account, rather than a blog of some journalists and lawyers covering the court. Part of the confusion comes from the fact that the Supreme Court doesn't have its own Twitter feed, combined with Twitter's eagerness to suggest alternate accounts when people are assuming SCOTUS must have a Twitter feed. But, really, a big part of the problem is people tweeting inane things at SCOTUSblog without realizing it's not SCOTUS.
This year, however, the running of the trolls event went weird... because Twitter briefly deleted the entire SCOTUSblog Twitter account, perhaps thinking that the snarky responses showed the account had been hacked. Yes, it appears that even Twitter the company may have believed that the SCOTUSblog Twitter account was actually supposed to be SCOTUS itself.
Today we had our annual running of the trolls — wherein we respond to people who direct mostly hateful and sometimes cute things to our @SCOTUSblog account, thinking it is the official Twitter account of the Supreme Court. We’ve done this for several Terms without incident. But this Term, Twitter — probably through some automated system — decided that our account had been hacked. So it kicked us out of our account — thinking we were the hackers — and then blocked all the tweets, so they have disappeared.
Eventually Twitter realized its mistake and reinstated the account -- but once again we see the problems when social media sites try to "police" the content on those sites. They are often not in a position to know what is and what is not an appropriate tweet, or if an account has been hacked. And yet, so many people still seem to think that the platforms themselves have some sort of god-like knowledge powers that allow them to magically kill "bad" accounts while leaving good accounts untouched.
Either way, with the account back in good standing, for now, here's just a taste of its trolling. Go to @SCOTUSblog
for more. It's too bad the trolling got interrupted though:
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Posted on Techdirt - 28 June 2016 @ 11:45am
We've noted in the last month or so a series of court rulings in California all seem to be chipping away at Section 230. And now we've got another one. As we noted last month, revenge porn extortion creep Kevin Bollaert had appealed his 18-year sentence and that appeal raised some key issues about Section 230. As we noted, it seemed clear that the State of California was misrepresenting a bunch of things in dangerous ways.
Unfortunately, the appeals court has now sided with the state, and that means we've got more chipping away at Section 230. No one disagrees that Bollaert was a creep. He was getting naked pictures of people posted to his site, along with the person's info, and then had set up a separate site (which pretended to be independent) where people could pay to take those pages down. But there are questions about whether or not Bollaert could be held liable for actions of his users in posting content. Section 230 of the Communications Decency Act (CDA 230) is pretty damn clear that he should not be held liable -- but the court has twisted itself in a knot to find otherwise, basically arguing that Bollaert is, in part, responsible for the creation of the content. This is going to set a bad precedent for internet platforms in California and elsewhere.
The court, not surprisingly, relies heavily on the infamous Roommates.com ruling that also said that site didn't qualify for Section 230 immunity, because it asked "illegal" questions (about housing preferences), and since the site itself had asked those questions, it was liable for creating that "illegal" content. That's different than what happened with Bollaert's UGotPosted site, but the court works hard to insist the two are close enough:
Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran, Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.
I can predict that this paragraph is likely to show up in a bunch of other cases. People are going to insist that lots of other platforms that include any form of structure will now be liable if any of the content based on that structure violates the law. That, again, goes directly against the clearly stated purpose of CDA 230. And it's likely to create something of a mess for internet platforms that regularly rely on 230.
The really crazy thing here is that earlier in the ruling, the court noted that it didn't even need
to answer the Section 230 question because they already had enough info to support charges of action "with the intent to defraud." But then it answered the CDA 230 issue anyway, and did so badly. No one's going to feel sorry for Bollaert, who is a complete creep. But the wider precedent of this ruling is going to be dangerous and will likely show up in lots and lots of lawsuits against internet platforms going forward.
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Posted on Techdirt - 28 June 2016 @ 10:39am
Back in May, we noted that large cities around the country were rushing to put in place anti-Airbnb laws designed to protect large hotel companies. In that post, we noted that many of the bills almost certainly violated Section 230 of the CDA by making the platform provider, Airbnb, liable for users failing to "register" with the city. Section 230, again, says that a platform cannot be held liable for the actions (or inactions) of its users. San Francisco was the first city to get this kind of legislation pushed through. And while the city's legislators insisted that Section 230 didn't apply, they're now going to have to test that theory in court. Airbnb has asked a court for a preliminary injunction blocking the law, based mainly on Section 230, but also mentioning the Stored Communications Act and tossing in a First Amendment argument just in case.
As designed and drafted by the Board of Supervisors, the Ordinance directly conflicts with,
and is preempted by, Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (the
“CDA”). According to its own sponsors, the law holds “hosting platforms accountable for the
hundreds of units (rented by) unscrupulous individuals” posting listings on their websites, and holds
“Airbnb Accountable for Listing Illegal Short Term Rentals.” Declaration of Jonathan H. Blavin
(“Blavin Decl.”)... As such, the Ordinance unquestionably
treats online platforms like Airbnb as the publisher or speaker of third-party content and is
completely preempted by the CDA. In addition, the law violates the Stored Communications Act,
18 U.S.C. §§ 2701 et seq. (the “SCA”), by requiring disclosure to the City of customer information
without any legal process, and the First Amendment as an impermissible content-based regulation.
As Airbnb points out, the city even recognized that the bill probably runs afoul of Section 230, but signed it into law anyway:
The City was not blind to the fact that the Ordinance might run afoul of the CDA and other
laws. Following its passage, the Mayor’s office said that the “mayor remains concerned that this
law will not withstand a near-certain legal challenge and will in practice do nothing to aid the city’s
registration and enforcement of our short-term rental laws.” ... The City
Attorney’s Office acknowledged that the Ordinance could raise “issues under the Communications
Decency Act” but claimed that it had been drafted “in a way that minimizes” those issues by
regulating “business activities” instead of “content.” ... Despite the City’s
best efforts to tiptoe around the CDA through such semantic devices, the problem for the City is
that the substance of what the Ordinance seeks to do violates the CDA. No amount of creative
drafting can change that reality.
The Stored Communications Act argument involves the requirements of Airbnb to turn over information on its users. The SCA is a part of ECPA, the Electronic Communications Privacy Act, that is supposed to protect the privacy of electronic communications (though, it's in deep need of an update). Here, Airbnb points out that the city ordering it to release customer information almost certainly violates the SCA.
The verification provisions of the Ordinance separately are barred by the SCA. In a futile
effort to sidestep the CDA, the Ordinance requires Hosting Platforms to verify listings by disclosing
to the City host names and addresses “prior to posting” a listing—and without a subpoena.... But in this failed endeavor to avoid Section
230, the Ordinance runs smack into the SCA, which bars state laws that compel online services like
Airbnb to release customer information to governmental entities without legal process.
The First Amendment argument is basically a backstop in case the CDA and SCA arguments fail, and then there's a Constitutional argument to appeal. If the court deals with the case on CDA and SCA grounds, it probably will avoid the First Amendment question altogether. But, the basis is that regulating types of advertisements on Airbnb's platform is a form of a content-based restriction on speech. And there is a strong argument that in restricting the content on the platform, rather than merely punishing the people who post their content to Airbnb, that the law violates the First Amendment. There are exceptions but, generally speaking, the First Amendment doesn't like any law that blocks out speech entirely, even if it's commercial speech.
The Ordinance also violates Hosting Platforms’ First Amendment rights. The prohibition on
the publication of certain rental advertisements—i.e., those listings without verified registration
numbers—is a content-based speech restriction subject to “heightened judicial scrutiny” under the
First Amendment.... The City cannot meet its
burden of demonstrating that this speech restriction directly advances a substantial state interest and
does so in a narrowly tailored way. Even assuming the Ordinance actually advances a substantial
state interest (which is questionable), it places a far greater burden on speech than is necessary to
achieve that end. The “normal method of deterring unlawful conduct” is to punish the conduct,
rather than prohibit speech or advertising regarding it.... The City cannot show that the obvious alternative of enforcing its existing laws against third-party residents who rent properties in violation of the law, rather than against Hosting
Platforms, would be ineffective or inadequate. Just the opposite: it is clear the City could enforce
its laws directly against hosts who violate them—as it already has begun to do with increasing
effectiveness and success—rather than indirectly against Hosting Platforms that publish listings.
Further, the law is unconstitutionally overbroad as it punishes platforms for publishing any listing
without complying with its “verification” procedures—including those listings that may be lawful.
Whatever you think of Airbnb (and people seem to get more emotional about it than seems reasonable...), this lawsuit could become quite important in making sure that Section 230 remains strong in protecting internet services providing useful services to individuals. In the past month or so, we've seen a number of questionable Section 230 rulings (especially in California) that have started to chip away at this law. However, I don't see how any of those rulings directly apply to this case. The most direct comparison is probably the Model Mayhem case
but, in that case, the court was clear that it allowed the California law requiring the platform to "warn" users to stand in part because it did not require the platform "to remove any user content or otherwise affect how it publishes or monitors such content." That's clearly not
the case with this Airbnb law.
Either way, this is a case worth following, and hopefully one where the courts don't lop off another chunk of Section 230's protections (or, for that matter, the SCA's privacy protections).
Separately, there's a very, very bizarre NY Times article about this, falsely claiming that Airbnb is suing over a law it helped pass
. That's just wrong. It's really bad reporting. Airbnb is clearly suing over the new language voted in by the SF Board of Supervisors earlier this month, and not the broader law that passed a few years ago.
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Posted on Techdirt - 28 June 2016 @ 8:27am
American folk hero Woody Guthrie famously put the following anti-copyright notices on one of his records once:
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do
And yet, his most famous song, "This Land," keeps coming up in copyright disputes. Over a decade ago, we wrote about how the organizations claiming to hold the copyright on that song went after
the company JibJab, which had made a clear parody
of the song during the 2004 Presidential election. In that case, once the EFF got involved, the case was settled
out of court. But as EFF noted back in 2004, part of the reason for the settlement was pretty clear evidence that "This Land" was absolutely in the public domain:
Fact #1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music (just performing it is not enough to trigger the clock).
Fact #2: A search of Copyright Office records shows that the copyright wasn't registered until 1956, and Ludlow filed for a renewal in 1984.
Fact #3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for "This Land Is Your Land" in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, DC. For those who are not able to visit the Woody Guthrie Manuscript Collection at the American Folklife Archives, we've posted a copy of the document.
This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow's attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain.
Not much more had come of this until a few weeks ago when some musicians in the band Satorii decided to take the claimed copyright holders to court
, asking for declaratory judgment that the song is in the public domain -- while also asking that license fees paid in the past get returned. The two defendants? The Richmond Organization and Ludlow Music. If those names sound familiar, they're the same two organizations at the receiving end of a very similar case over the song "We Shall Overcome."
The filing in this case
repeats the arguments that EFF made 12 years ago almost verbatim.
Guthrie published the Song in 1945 with a proper copyright notice, which created
a federal copyright in the Song. The copyright to the 1945 publication was not renewed. As a
result, the copyright expired after 28 years, and the Song fell into the public domain in 1973.
Despite Guthrie’s 1945 publication of the Song, Defendant Ludlow purportedly
copyrighted the Song in 1956. Based on that 1956 copyright, Defendant Ludlow has wrongfully
and unlawfully insisted it owns the copyright to This Land, together with the exclusive right to
control the Song’s reproduction, distribution, and public performances pursuant to federal
For example, on July 23, 2004, Defendant Ludlow’s counsel wrote to counsel for
Jib Jab Media, Inc. (“Jib Jab”), regarding Jib Jab’s use of the Song. In that letter, Defendant
Ludlow’s counsel asserted that “Ludlow is the exclusive copyright owner of the classic folk song
‘This Land is Your Land’ written by the well-known folk artist Woody Guthrie.” The letter also
asserted that Jib Jab’s use of the Song’s melody and “the well-known lyrics ‘This land is your
land, this land is my land’ and ‘From California to the New York Island’” infringed Ludlow’s
Irrefutable documentary evidence shows that Defendants own no valid copyright
related to This Land. The popular verses of the Song were first published in 1945, and the
copyright in those verses ended no later than 1973 (if not earlier). Defendants never owned a
valid copyright to the Song’s pre-existing melody.
The filing includes a copy of the 1945 publication of a version of the song:
The filing notes that the melody pre-existed "This Land" and was used in a variety of earlier songs, and thus he has no copyright in the melody -- even though Ludlow claimed (falsely) in its 1956 copyright registration that Guthrie wrote the music (it also failed to note that the song had been published multiple times earlier). Amusingly, of course, in noting the lyrics to "This Land," it's noted that part of one version of the song mocks the idea of private property:
Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing –
This land was made for you and me.
The case makes a pretty strong argument for the song being in the public domain. It seems like there's now this trend of forecefully declaring works in the public domain after years of having someone claim ownership over them. While it's good to finally see some of this stuff officially enter the public domain, it's rather ridiculous that we're all left fighting for a public domain.
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Posted on Techdirt - 28 June 2016 @ 3:20am
It's a good thing to think about the technology of the future. Especially if you're politicians and the future may have a big impact. Considering how frequently we see politicians ignore future technological change, it might be encouraging that the EU Parliament is at least considering what happens when our new robot overlords enslave us. Except that the report that the EU Parliament has come out with... is ridiculous. Most of the headlines are focusing on the ideas raised around making robots "electronic persons" for the purposes of paying social security or taxes, but the part that gets me is the plan to give them access to copyright as well.
Notes that there are no legal provisions that specifically apply to robotics, but that
existing legal regimes and doctrines can be readily applied to robotics while some
aspects appear to need specific consideration; calls on the Commission to come forward
with a balanced approach to intellectual property rights when applied to hardware and
software standards, and codes that protect innovation and at the same time foster
innovation; calls on the Commission to elaborate criteria for an ‘own intellectual
creation’ for copyrightable works produced by computers or robots;
The resolution calls on the Commission to come forward with a balanced approach to intellectual property rights when applied to hardware and software standards and codes that protect innovation and at the same time foster innovation. Moreover, the elaboration of criteria for "own intellectual creation" for copyrightable works produced by computers or robots is demanded.
The current insufficient legal framework on data protection and ownership is of great concern due to the (expected massive) flow of data arising from the use of robotics and AI.
This is both maddening and pointless. As we've already discussed with regards to the monkey selfie
, it's pretty standard under copyright that it only applies to work created by persons
, and not animals or machines. That matters quite a bit. In fact, just a few weeks ago I was in a conference session talking about questions about copyright and artificial intelligence, and a point that I made to people there was that the output of an AI is (currently) not subject to copyright
and that's a good thing
. Yet here we have the EU already proposing adding copyright to the output of AI without bothering to even consider if the concept makes sense or not.
It does not.
Again, the purpose of copyright is to create incentives for creation that benefits the public. It's not as if a robot or an AI is going to say that it won't create something new unless it gets copyright. You can just program it to create. That's the idea. The fact that politicians are already seriously looking at creating special copyright for patents and AI seems like more of the same old thinking of "everything needs copyright protection."
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Posted on Techdirt - 27 June 2016 @ 11:23pm
As we've discussed, some surveillance/law enforcement hawks have tried to rush through a law to expand the power of national security letters (NSLs) to paper over the long standing abuse of NSLs, by saying that they can use those documents (which have basically no oversight and don't require a warrant) to collect a ton of private info, including email info and web browsing histories. The rushed vote on this -- stupidly citing the Orlando attacks, despite the fact it would have done nothing to stop that -- failed but just barely. Basically, if Senator Dianne Feinstein were able to attend the vote, it likely would have passed. The support for it was one vote shy, and then Sen. Mitch McConnell changed his vote for procedural reasons to be able to bring it back for a quick follow up vote.
Now, as Congress rushes towards that vote, Senator Ron Wyden stepped up today to use his power as a Senator to put a hold on the entire Intelligence Authorization bill. He gave a short floor speech explaining his reasons.
I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact. I strongly supported the passage of that provision, which I first proposed in 2013. By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities.
The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans. If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual. Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.
It is worth noting that President George W. Bush’s administration reached the same conclusion. In November 2008, the Justice Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types of records, and this list did not include electronic communication transaction records. The FBI has unfortunately not adhered to this guidance, and has at times continued to issue National Security Letters for electronic communications records. A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper. Broadening the National Security Letter law to include electronic communication transaction records would be a significant expansion of the FBI’s statutory authority.
And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of abuse and misuse. These problems have been extensively documented in reports by the Justice Department Inspector General from 2007, 2008, 2010 and 2014. As one of these reports noted, “the FBI [has] used NSLs in violation of applicable statutes, Attorney General guidelines, and internal FBI policies.” No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight. In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly.
Of course, to some extent, this is little more than show. It's pretty clear that McConnell has the votes to get this passed, which is why Wyden has now taken the dramatic step of putting a hold on the bill. But the 60 votes here are usually what is necessary to break a hold (which remains a widely used, but informal, Senate rule). So in the end this won't mean much, but we've been here before again and again and again. And by now it should be clear: When Ron Wyden says that the government is abusing laws to spy on Americans, he's not lying
. We shouldn't then paper over that abuse and give the FBI or the NSA or anyone else greater powers to spy on Americans. Because they use that power and they don't tend to use it wisely and judiciously.
Can anyone explain, seriously, why the emergency powers that allow the FBI to do the search in an emergency and then get the warrant after are somehow too problematic? Or why the FBI can't go and get a warrant at all? It's a petty quick process for them these days. This whole effort seems designed solely to wipe out what little oversight there is of the FBI and its use of national security letters.
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Posted on Techdirt - 27 June 2016 @ 3:32pm
A month ago, folks in Austin Texas voted against a proposition that Uber and Lyft supported, concerning a number of new rules that would be put on ride hailing operations. Given that, both companies immediately shut down operations in Austin -- a city with over a million residents and only 900 cabs. In response, people are so desperate for rides that they're seriously trying to recreate the Lyft/Uber experience by using a Facebook group where people can post their location, negotiate a fee, and have someone pick them up (something that seems a lot more dangerous than typical Uber/Lyft).
DUI (driving under the influence) arrests have gone up by 7.5% compared to the previous year.
This does not mean that Uber/Lyft leaving is absolutely the cause, as there may be lots of other factors. But the anecdotal evidence certainly suggests it's having an impact. From the Vocative story linked above:
“The first Friday and Saturday after Uber was gone, we were joking that it was like the zombie apocalypse of drunk people,” Cooper said.
People were so desperate for rides, she said, that she’d pull up to a corner and pedestrians would offer to hop in her car as soon as they spotted her old Uber and Lyft emblems in the windshield. “They don’t even know who I am,” she chuckled in amazement.
Even more troubling than the late-night pedestrian concern is Austin’s rampant drunk driving problem—last year the city had more than 5,800 DWI arrests, according to police data. Back in December the city’s Police Chief Art Acevedo expressed concern for how an Uberless Austin would affect the road safety. “If we take away the (ride-hailing firms) here and in other cities, it definitely will impact DWI,” he said. “There’s no doubt about it.”
No matter what you think of Lyft or Uber, it's pretty clear that they're very, very useful services for lots of people -- and that includes drunk people who no one should want behind the wheel themselves. Putting in place regulations to limit those services seems to be backfiring, and hopefully it doesn't lead to loss of life either through drunk driving or less safe drivers making use of the informal Facebook groups.
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Posted on Techdirt - 27 June 2016 @ 12:46pm
As you probably heard in the news, last week, Presidential candidate/reality TV star Donald Trump took a bit of a detour from the campaign trail last week to fly to Scotland to open his new golf course. That the timing of the trip coincided with the Brexit referendum for the UK to exit the EU was just the wacky icing on the bizarre global political cake we're all now eating (bad metaphor apology). As you also probably heard, Trump talked about how wonderful the Brexit stuff was, and how much the people in Scotland must be thrilled, apparently missing the fact that Scotland, somewhat overwhelmingly, voted to stay in the EU. And because this is Scotland, and Scotland is awesome, folks there took to Twitter for a series of increasingly funny insults:
There are a bunch more at the Quartz link, but a pretty good one came from @MetalOllie
, also known as Hamfisted Bun Vendor, who is English, rather than Scottish, but got into the spirit quite well:
As I write this, it has over 6,000 retweets and over 7,000 likes. Not bad. Based on all of this, Jay Lender, a writer/director for SpongeBob SquarePants, Phineas and Ferb... and also his own movie, They're Watching
, created an image in the style of Shepard Fairey's famous (and legally disputed
) Obama Hope poster.
After some discussion
Jay and MetalOllie teamed up to put the image on t-shirts
at CafePress. I have no idea if anyone was actually buying
it, but earlier today Lender announced that CafePress had shut down the page for trademark infringement
. Whose trademark? Frito-Lay's
, the makers of Cheetos, of course!
It's not at all clear if Frito-Lay made this request or if it's just CafePress worrying about future Frito-Lay concerns. Lender asked CafePress for clarification, and all they sent back was a link to Frito Lay's corporate contact page, telling him to contact Frito Lay to ask for authorization, implying that Cafe Press made this decision on its own. But, really, there appears to be a ton of other merchandise
hosted at CafePress that mentions Cheetos in some form or another, so if the company is suddenly concerned about trademark threats from Frito-Lay, it seems to be targeting rather selectively.
Lender pushed back on CafePress's decision to take down the store, and received some rather ridiculous "suggestions" for replacement terms:
If you can't read that, it says:
The use of "Cheeto" infringes on Frito Lays trademark. If would be different if you used "cheese puff" or "cheese-snack"-faced in your design.
You may forward your notice of authorization from Frito Lay, giving you permission to use "Cheeto" or "Cheetos" in connection with the sale of commercial merchandise to us via email....
Yes. Really. Nothing like having CafePress ruining your jokes for you with its bizarre interpretation of trademark law.
As we've discussed many times in the past, CafePress is frequently
targeted by bogus
takedowns concerning political speech
and the company doesn't exactly have the best record
in dealing with such takedowns. But this seems just blatantly ridiculous on so many levels.
Either way, to argue that this is trademark infringing is crazy. No one is confusing the t-shirt or the image above as coming from Frito-Lay. I don't care how much of a moron in a hurry you might be, there's no consumer confusion here. For CafePress to declare absolutely that the use of Cheeto as an adjective here (not even as a noun!) is infringing on Frito-Lay's trademark is just... wrong. Second, this is pretty clearly protected political speech -- whether or not you agree with it or even think it's funny. Yes, CafePress has a right as a private company to refuse to host any shirts it dislikes, but at the very least it should come out and say that's why it's shutting down the shirt, rather than hiding behind a bogus "trademark" claim from Frito-Lay.
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Posted on Techdirt - 27 June 2016 @ 10:34am
They've been pressured to do this for a while, but according to a Reuters report over the weekend, both Google and Facebook have started using some of their automation tools to start automatically removing "extremist" content. Both are apparently using modifications to their copyright takedown technology:
The technology was originally developed to identify and remove copyright-protected content on video sites. It looks for "hashes," a type of unique digital fingerprint that internet companies automatically assign to specific videos, allowing all content with matching fingerprints to be removed rapidly.
In other words, the companies aren't (yet) using these tools to automatically determine what's "extremist" and block it, but rather they're just keeping it from being posted. Of course, we're all quite familiar with how badly this can fail in the copyright context, and it's quite likely the same thing may happen in this context as well. Remember, in the past, under pressure from a US Senator, YouTube took down a Syrian watchdog's channel
, confusing its documentation of atrocities
with extremist content. And, hell, the same day that this was reported, a reporter on Twitter noted that her own Facebook account was suspended
because she posted a picture of a friend of hers who had been killed in Syria.
And that's a big part of the issue here: context totally matters. One person's extremist content may be quite informative/useful in other contexts.
Yes, I know that there's a big push for "countering violent extremism" online these days. And the government, in particular, has been putting lots of pressure on the big tech companies to "do something." But I'm curious what anyone thinks this is actually doing. The people who want to see these videos will still see these videos. It still seems like a fairly exaggerated threat to think that someone just watching some YouTube videos will suddenly decide that's why they're going to join ISIS. And, if that is the case, it seems like a much better response is counterspeech -- put up other videos that rebut the claims in the "extremist" videos, rather than blocking them across the board. Of course, if they're being matched via ContentID, even someone offering commentary on a video to debunk claims may suddenly find out that their videos are being taken down as well. I can't see how that's at all helpful.
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Posted on Techdirt - 27 June 2016 @ 9:35am
MPAA boss Chris Dodd has apparently decided to take the fairly insane stance that what's good for the public is clearly bad for Hollywood. That's the only conclusion that can come from the news that he's actively campaigning against the EU ending geoblocking rules:
In a keynote address at the CineEurope convention this week, MPAA Chairman and CEO Chris Dodd described the unblocking goals as a threat to the movie industry. Encouraging participants to reach out to their representatives, Dodd described the concerns as “real, very real.”
“While the stated goals of these proposals are laudable – offering greater choice to European consumers and strengthening cultural diversity – in reality, these ideas could actually cause great harm to Europe’s film industries and its consumers,” Dodd said.
Opening up more markets and more users, while having less overall friction will be bad for the film industry? Only if it's run by complete idiots who don't know how to take advantage of a larger market. But, I guess that's the MPAA way!
Of course, it's not hard to understand what Dodd is really talking about. For years, Hollywood has been able to squeeze extra money out of a convoluted and corrupt manner of territorial licensing -- a system that may have made sense in a pre-modern world, but which hasn't made any sense at all in decades. But because the Hollywood studios abuse that system for profit, often making it impossible for people to see the content they want to see (and are willing to pay for), it doesn't want to change that system.
But, because it's Hollywood, they have a mythical fairy tale to try to make it all make sense:
“The European Union is made up of 28 different nations with different cultures, different languages, and different tastes. Forcing every film to be marketed and released the same way everywhere, at the same time, is a recipe for failure,” Dodd said.
“The ability of filmmakers and distributors to market and release their films where, how, and when they think best gives them the greatest chance to succeed,” he added.
Of course, this is the EU where (at least while the EU lasts... as may now suddenly be in doubt...) people are able to travel freely across borders. Which means that the country you live in may not be the country you grew up in, nor match the same cultural sensibilities. And, these days, it's entirely possible to market films through the internet to find their intended audiences. The idea that by getting rid of geoblocking you suddenly change any of the above points makes no sense. The films that are targeted in one geography can still be proactively marketed in those geographies -- it's just that they will also
be available to people from those regions who now live elsewhere (again, making it accessible to a wider
But, again, this is the MPAA that is so focused on locking things down and limiting consumers, it still doesn't realize that treating its customers badly is why the MPAA is so hated.
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Posted on Techdirt - 27 June 2016 @ 8:28am
Back at the end of May the Copyright Office put out a Notice of Proposed Rulemaking (NPRM) concerning some changes to the DMCA agent registration process. As we've noted for years, technically to be covered by the important DMCA safe harbors you first have to register with the Copyright Office (and we've repeatedly recommended that you do so, if you have any kind of site, even a personal one, where people may post potentially infringing material). Not registering won't automatically make you liable, but it can make the legal process a lot more problematic for you if someone posts infringing material on your website. Most people who commented on this new NPRM were pleasantly surprised to see that the key part of the proposal was reducing the fee for registering an agent from $105 (or more) down to just $6. The Copyright Office says it can do this thanks to the much easier efficiency of electronic filing. That's great.
But hidden in the details is something not great at all. First spotted by the ever eagle-eyed Eric Goldman, part of this proposal was actually reviving a very bad proposal from 2011 to also force sites to renew their DMCA agent every 3 years. This is dumb for so many reasons -- and Eric, along with the EFF, told the Copyright Office this back when the proposal first came out -- and... the Copyright Office never responded (though it still says it's coming...). And here's the really nasty bit: the Copyright Office insists that any comments being made over this NPRM can only be about the change in the fee, and not the serial renewals, even though it also notes (in a footnote, of course) that this new lower fee is dependent on it becoming a recurring fee thanks to the renewals.
On top of that, it seems clear that those of us who have already paid lots of money to register will still have our registrations thrown out, and we'll have to start paying recurring fees. That seems doubly ridiculous. We've already paid quite a lot, and I don't see how the Copyright Office should be able to throw out our existing agent claim, nor why we should suddenly have to remember to go back and renew our registration every three years. Remember, this is the same Copyright Office that seems to have no interest at all in making copyright holders renew their registrations, as such a thing would be too burdensome.
Given all that, Eric, again with the EFF, and a bunch of others (including us at Techdirt!) filed comments with the Copyright Office on Friday, complaining about this new rule, which will almost certainly burden many legitimate sites, causing them to lose their DMCA safe harbors simply by failing to re-register an agent in a timely manner.
We believe that once a service provider has made a valid designation, the designation should
remain effective in the Copyright Office indefinitely, for at least three reasons: (1) 17 U.S.C.
§512(c)1 already has too many conditions; (2) §512’s formalities already inhibit small service
providers from enjoying the safe harbor; and (3) §512 already deprives service providers of
protection if they do not accurately maintain their designations. For these reasons, we oppose
any proposal to disqualify a service provider from the safe harbor for failing to maintain its agent
registration with the Copyright Office, whether because the service provider failed to pay the
appropriate renewal fee, failed to re-register an existing valid registration, or failed to take any
other future action after a valid registration has been made.
If the hidden consequence of the Copyright Office’s proposed lower agent registration fees is a
higher risk that an unsuspecting provider will lose §512’s safe harbor protections because it
failed to renew, then the real cost of the new system is far too high. Therefore, we request that
the Copyright Office offer a cost-effective option letting providers make only a single one-time
registration to remain permanently effective.
The letter goes on to point out that in order to qualify for the DMCA's safe harbors, a site already needs to satisfy 12 different conditions, which is already too burdensome. And this renewal process would make it even worse, if only because a site that simply forgets to register may face massive liability:
The new condition would have significant consequences: an otherwise-protected service
provider could, if found liable for copyright infringement under the substantive liability
standards, be exposed to a massive—and potentially business-ending—damage award that could
reach millions (or even billions) of dollars for forgetting to renew or maintain the agent
designation on time.
The letter also reminds the Copyright Office about its own views on why re-registration "formalities" is a bad idea for copyright registrations:
“[T]he renewal provision of the
current law is a highly technical and rigid formality, and it often results in the unfair and
unintended loss of copyright protection.”
The same concerns exist here, including the concern for conditions not present in other national
More generally, the history of the Copyright Act clearly demonstrates that if Congress wanted to
put an agent renewal condition into the law, it knew how to do so. The Copyright Office’s
authority to make regulations for receiving DMCA agents’ designations does not include
authority to add additional conditions to §512(c) itself, and the Copyright Office has not
identified any legislative grant that provides it with such authority.
Frankly, it's ridiculous that you need to register with the Copyright Office to receive the safe harbors in the first place, but if that's the case, there's simply no reason that they should suddenly add in this demand to re-register every few years.
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Posted on Techdirt - 27 June 2016 @ 3:23am
Late last week, a proposal from the Department of Homeland Security was published in the Federal Register concerning forms tourists need to fill out upon entering the US. Specifically, DHS proposed adding the following to Form I-94W, which is the Nonimmigrant Visa Waiver Arrival/Departure Record:
“Please enter information associated with your online presence—Provider/Platform—Social media identifier.”
Why? Well, it's pretty much exactly as you guessed:
It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.
In other words, if you're following ISIS accounts on Twitter, DHS might not let you into the US. And sure, it's voluntary, but it looks like some in Congress are already
saying that this sort of thing ought to be mandatory
. Of course, for the vast majority of people, their social media profiles are going to be pretty boring for your average Customs and Border Patrol agent, but do we really think it's a good use of their time to be trolling through their Facebook and Twitter feeds or Instagram and Pinterest images?
Overall, this seems like a typical kneejerk response to various concerns about letting people with ill-intent into the country. Eventually, someone travelling here on a tourist visa will do something horrendous, and people will look at who was friends with that person on Twitter or Facebook and freak out. But the idea that the government should be asking travelers for their social media info feels fairly intrusive. What people say on social media or who they're connected with seems likely to be a pretty poor indicator of whether or not they're coming to the US to blow stuff up.
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Posted on Techdirt - 24 June 2016 @ 3:41pm
Want some unsurprising news? Apparently a three year gag order has just lapsed, allowing Ladar Levison, the founder and former operator of Lavabit, the secure email service Ed Snowden famously used, to finally say that yes, the feds asked him to turn over his encryption key in order to access Ed Snowden's emails.
Lavabit founder Ladar Levison can finally confirm that Edward Snowden was the target of the 2013 investigation, which led to the shutdown of the Lavabit email service. The original case concerned law enforcement’s authority to compel the disclosure of an SSL/TLS private key, which belonged to Lavabit, and was used to protect the communications of all 410,000 customers, when only one of those customers was the subject of a criminal investigation. After three years, and five separate attempts, the federal judge overseeing the case has granted Mr. Levison permission to speak freely about investigation. The recently delivered court decision unseals the vast majority of the court filings, and releases Mr. Levison from the gag order, which has limited his ability to discuss the proceedings until now.
Mr. Levison has consistently relied on the First Amendment in his court filings, which sought to remove the gag orders entered against him. He argued that such orders are an unconstitutional restraint against speech, and an afront to the democratic process. He plans to use his newfound freedom to discuss the case during a planned presentation on Compelled Decryption at DEF CON 24 in Las Vegas, NV.
Of course, the fact that the feds were after Snowden isn't exactly news. First off, it's what everyone assumed
the second the site shut itself down. But, more importantly, earlier this year, a redaction failure
revealed it directly:
Still, it's good that the gag order has finally been lifted, and it's great that Levison is now going to talk about these issues more widely. He also notes plans to create a legal defense foundation to help with similar cases:
In order to continue the fight, Mr. Levison is forming the Lavabit Legal Defense Foundation (or “LavaLegal”), a non-profit organization founded to, among other things, protect service providers from becoming complicit in unconstitutional activities, and fight secret attempts aimed circumventing digital privacy or impinging upon the right of those involved to speak of the experience. The foundation will be funded by donations from people and organizations all over the world that want to help protect digital privacy and bolster our collective defense against government overreach.
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Posted on Techdirt - 24 June 2016 @ 2:08pm
Remember this image?
That's the meme that was (and still is) passed around on social media (rather gently) mocking Turkish President Recep Tayyip Erdogan
for looking kinda like Gollum from the Lord of the Rings
trilogy. Or, not even Gollum, but his nicer alter ego, Smeagol. Last we wrote about this, a Turkish court was assembling an expert panel to determine if that image is insulting
to Erdogan. Since then, of course, we've learned just how insanely thin-skinned Erdogan is, having filed an average of over 100 actions
against people for insulting him per month (how does he get any actual work done?).
The Gollum case, however, is partially done, with one person accused of passing around the meme, Rifat Cetin, given a 1 year jail sentence
, but having it suspended for five years -- meaning if he breaks no other laws in the next five years, he won't have to go to jail. He does
, however, lose custody of his kids, which seems pretty damn harsh for sending around a simple (and not very insulting) internet meme. And this is actually a different case
than the one we discussed earlier -- it's just that there were multiple lawsuits over the same image.
Cetin is going to appeal, not on the basis of "WTF, I don't even..." which should be the standard here, but on the technicality that Erdogan was actually Prime Minister at the time the image was posted, rather than President -- and the law is only against insulting the President.
Either way, all this has done, of course, is get more people to post and share that image over and over and over again. You'd think that "growing a thicker skin" might be a better overall strategy. But, then again, I'm not the President of Turkey, so what do I know?
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Posted on Techdirt - 24 June 2016 @ 12:45pm
See the update at the end
Almost two years ago, we excitedly wrote about the announcement behind Let's Encrypt, a free certificate authority that was focused on dramatically lowering the hurdles towards protecting much more of the internet with HTTPS encrypted connections. It took a while to launch, but it finally did and people have been gobbling up those certificates at a rapid rate and getting more and more of the web encrypted. This is a good thing.
Unfortunately, it appears the old guard of certificate authorities doesn't like this very much. Comodo, which has provided certificates for quite some time (and, in fact, is where Techdirt's certificate comes from) has apparently, somewhat ridiculously, been trying to trademark versions of "Let's Encrypt." The most troubling one is the one on purely "Let's Encrypt," but the other two (Comodo Let's Encrypt and Let's Encrypt with Comodo) are equally problematic -- especially since (as Comodo admits directly) it's never used that phrase in offering its existing certificates.
This seems like a clear situation where Comodo is seeking to confuse the market -- and thus the clear case where trademark law actually makes some sense. As we've said basically forever, trademark is quite different than copyrights and patents, in that it was really designed as a consumer protection law, to keep consumers from being tricked into buying something that they believe is from a different entity. Trademarks are widely and frequently abused, but there are times where the original intent of consumer protection makes sense, and this seems like one of them. What's incredible is that when Let's Encrypt reached out to Comodo about this, the company refused to abandon the attempt to trademark these names.
Since March of 2016 we have repeatedly asked Comodo to abandon their “Let’s Encrypt” applications, directly and through our attorneys, but they have refused to do so. We are clearly the first and senior user of “Let’s Encrypt” in relation to Internet security, including SSL/TLS certificates – both in terms of length of use and in terms of the widespread public association of that brand with our organization.
If necessary, we will vigorously defend the Let’s Encrypt brand we’ve worked so hard to build. That said, our organization has limited resources and a protracted dispute with Comodo regarding its improper registration of our trademarks would significantly and unnecessarily distract both organizations from the core mission they should share: creating a more secure and privacy-respecting Web. We urge Comodo to do the right thing and abandon its “Let’s Encrypt” trademark applications so we can focus all of our energy on improving the Web.
At the very least, this kind of stupid stunt has me reconsidering if we should ever use Comodo's certificates on our site going forward. We've been a happy Comodo customer for many years, but I hate supporting bullies. Update
: And... of course, after this goes public, Comodo suddenly backs down
. Of course that doesn't explain why it refused to do so when asked months ago.
34 Comments | Leave a Comment..
Posted on Techdirt - 24 June 2016 @ 11:41am
Oh boy. A few weeks back, we wrote about the absolutely ridiculous story in which the four children of Frank Zappa appear to be fighting over the Zappa name. The story is somewhat complex and involved and is actually somewhat more nuanced than the unfortunately-all-too-typical "heirs of famous artist fight over splitting up the proceeds of that artist's legacy." In that original article, we noted that the dispute seemed to focus on two specific claims: first that the Zappa Family Trust (run by Ahmet and Diva, but to which all four children are beneficiaries) had a trademark on the tour name "Zappa Plays Zappa," under which Dweezil Zappa had toured for years. After some fairly public back and forth online, it became clear that there was an underlying dispute that had simmered for years here: Frank's wife Gail, who had controlled the ZFT, had trademarked Zappa Plays Zappa and charged Dweezil to use it, but had (according to Dweezil) then reneged on an agreement to share the proceeds from merchandise sales. Ahmet insisted that he'd allow Dweezil to continue to use the name for just $1, but it didn't seem that there was any interest in clearing up the older dispute about merch sales, or to allow Dweezil to get some of the proceeds from ongoing merch sales.
The trademark claim seemed... at least possible, though there were arguments for either side, including a fairly strong one that Dweezil had every right to use that name without needing to license it. But the really ridiculous claim was that the family trust could stop Dweezil from playing Frank Zappa's songs. The ZFT had a convoluted -- and simply wrong -- interpretation of copyright law, to argue that Section 115 of the Copyright Act doesn't apply to Frank Zappa's music, because it's part of a "dramatic work." This is basically a nonstarter and would almost certainly be laughed out of court if it ever got there. Such a theory would basically upend decades upon decades of rather settled law concerning the ability to perform cover songs.
But, now it appears that the Zappa Family Trust also has some ridiculously nutty trademark theories as well. That's because to avoid the trademark issue, Dweezil originally changed the tour name to "Dweezil Zappa Plays Frank Zappa." Not nearly as catchy, as everyone agrees, but functional. Apparently, Ahmet and the ZFT lawyers sent a laughably wrong cease and desist letter to Dweezil claiming that merely using the name Zappa was trademark infringement:
This week, a lawyer for the trust informed Dweezil’s lawyer that the name Dweezil Zappa Plays Frank Zappa infringed on the trust’s trademarks of the terms “Zappa” and “Frank Zappa.”
This is just wrong. In the response from Dweezil's lawyers, they pointed out that this was nominative fair use: "the use of 'Frank Zappa' merely serves to accurately describe the nature of the show and is in no way misleading or defamatory." Since no one's published the full letters -- just snippets -- I don't know why they mention defamation in there, but that's a whole different legal minefield.
Either way, to avoid having to deal with that threat, Dweezil has changed the name of the tour yet again
so that it's now: 50 Years of Frank: Dweezil Zappa Plays Whatever the F@%k He Wants – The Cease and Desist Tour. Really.
Dweezil also notes that "Yes there will be CEASE AND DESIST 2016 tour shirts" on the tour (along with additional merchandise unrelated to the Zappa Family Trust). I will say that as a legal nerd, I really, really want a Dweezil Zappa t-shirt that says "cease and desist" if anyone happens to be going to one of the shows
(unfortunately, the tour isn't coming anywhere near me, though it is playing the town I grew up in -- but I doubt I can convince my parents to go). If anyone is going to one of the shows and feels like hooking me up with a t-shirt, contact me please
In the end, this whole thing, like so many intellectual property debates, seems almost entirely pointless. Intellectual property just becomes something that people fight over because they can
, and it makes it difficult for people to step back and take a look at the bigger picture to recognize just how stupid the whole thing looks. It's hard to think of any sane or logical reason why Dweezil shouldn't be able to go out on tour as Zappa Plays Zappa. The idea that trademark should get involved in any of this would only make sense in the most ridiculous of trademark scenarios -- one where greed seems to be leading over basic common sense.
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Posted on Techdirt - 24 June 2016 @ 10:47am
We've been covering the still going lawsuit by CBS and Paramount against Axanar Productions for making a crowdfunded fan film that they claim is infringing because it's looking pretty good. Things got a little weird last month when the producer of the latest Star Trek film, JJ Abrams, and its director, Justin Lin, basically leaked a bit of news saying that after they had gone to Paramount, the studio was going to end the lawsuit. At the time, Paramount said that it was in "settlement discussions" and that it was "also working on a set of fan film guidelines."
We pointed out that we were concerned about what those guidelines might entail, and worried that they would undermine fair use. In the meantime, as settlement talks continued, the case moved forward. I'm still a little surprised that the two sides didn't ask the court for more time to continue settlement talks, as that's not that uncommon, and it's something that a judge often is willing to grant if it looks like the two sides in a dispute can come to an agreement. But, without that, the case has continued to move forward with ongoing filings from each side.
In the meantime, however, the StarTrek.com website, run by CBS and Paramount, has now posted those "fan film guidelines" and they are absolutely ridiculous. The Axanar team sums it up nicely by saying that:
The CBS "Guidelines" for Fan Films basically make it impossible for fan films to continue as they have.
The first item, for example, completely rules out Axanar's plan for a feature length fan film:
The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.
And there's another one that's clearly targeted at Axanar:
The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.
I don't quite see how or where that fits into fair use's rules...
Another one clearly targeted at Axanar -- which raised over a million dollars in Kickstarter
CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.
That seems rather limiting.
Some of the other terms are more reasonable, but it seems clear that these guidelines are pretty specifically designed to cut off an Axanar style fan film, and seem to be trying to cut off a lot more than fair use almost certainly allows. While for the sake of the folks working on Axanar, I still hope that this settles amicably, it might be a lot nicer to have Axanar be able to win a fair use claim in court over this.
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Posted on Techdirt - 23 June 2016 @ 3:39pm
Back in April, we noted that California Assemblymember Mark Stone was pushing some legislation to basically push California governments to copyright and trademark everything they could. This was a bad kneejerk response to the admittedly ridiculous situation in Yosemite, where the concessions vendor had trademarked various park names and then tried to hold them ransom. Of course, the proper response is to make sure that kind of thing can't be covered by trademark or copyright law, not push state government entities to lock up things under intellectual property laws.
Despite widespread criticism, the plan moved forward with only modest tweaks earlier this month. Thankfully, with the help of EFF pushing lots of people to speak out against the bill, it appears that the California legislature has basically dropped the proposal entirely. The amended bill looks very, very different. See all that red text? That's what's been removed:
That's basically all the bad stuff. What remains is basically a requirement that state agencies "consider" the intellectual property rights at issue when they're writing contracts -- which as EFF notes -- should more effectively deal with Yosemite-like situations, without the massive overkill of giving California government agencies copyrights and trademarks in everything.
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