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Posted on Techdirt - 1 May 2015 @ 7:39pm

Patent Reform Bill A Good Step, But Still Falls Way Short Of Fixing A Broken System

from the it's-a-start dept

As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done.

That's all good. The bill is a good start. But, unfortunately, it's not nearly enough. It does target some of the symptoms of the problems of the patent system, but does little to fix the underlying causes. The bill targets the worst of the worst: the patent trolls who thrive on shaking down companies. Specifically, the bill aims to do a few key things:

  1. Fee shifting on ridiculous lawsuits: It would allow for attorneys' fees to be awarded if the patent holder was not "objectively reasonable" in filing the lawsuit. The Supreme Court has already made it easier for courts to award attorneys' fees, but this would slide the scale over a bit in a helpful way. This certainly increases the risk for patent trolls who have no real case.
  2. Limiting discovery: Defending a patent lawsuit is crazy expensive. We often hear stories of it costing like a million dollars just to get to trial. And one big expense is "discovery," in which the patent holder gets to ask for all sorts of information from the company its suing -- emails, plans, source code, etc. This process is super expensive and there's not much you can do about it. It often starts pretty quickly after a lawsuit is filed as well. This new bill would put limits on early discovery, allowing those sued to seek motions to dismiss the case altogether or to transfer venues. That could decrease the early cost, taking away some of the pressure on defendants to just settle, and giving them more ability to fight back against bogus claims.
  3. Limits vague demand letters: The patent troll's weapon of choice is often to send totally vague demand letters, insisting companies infringe without telling them how. It also makes it easier for the FTC to go after those who send such bogus threat letters.
  4. Protecting some end users: We've highlighted plenty of cases where patent holders sue those who make devices or software, and then sue a variety of end-users as well. This bill, in a fairly limited way, would put those kinds of lawsuits on hold until the manufacturer can fight the infringement in court. But this only counts if the troll also has sued the manufacturer. So it's a bit limited.
  5. Transparency: The bill would make it harder for trolls to hide behind shell companies. This is a fairly big deal, as many patent trolls have a series of shell companies, and often you have no idea who really owns the patent. The bill will also require actual lawsuits to be a lot more clear in terms of what they're actually suing over and why the defendant infringes (and what it infringes).
These are all good things, but it's unlikely to truly be enough. Missing, unfortunately, is the expansion of a program that would allow the patent office to do a faster review of crappy patents, known as the covered business method (CBM) process. This is too bad -- as this was an idea that Schumer had been a strong champion for, but which Microsoft and IBM pushed back very hard on, as they HATE the idea that the USPTO might start invalidating their crappy patents with a quick review.

Yet, as Schumer knows well, this CBM tool has proven tremendously effective in dumping a bunch of crappy financial services patents. Hell, just this week, DataTreasury, a massive trolling operation that has received over $350 million in settlements had its key patents invalidated via a CBM review. It's too bad that program couldn't have been expanded. Blame Microsoft and IBM.

But there are a lot of other problems that the new bill doesn't touch at all. Yes, it may shut down the worst of the worst in trolling, but will still allow plenty of bad situations to flourish. Bad patents will still get through and be used to hinder innovation. The new bill does absolutely nothing to address the situation with independent invention either, and that's a major problem in the patent space.

Either way, even with this incremental fix, it's likely we'll see a bunch of ridiculous claims that the above changes in patent law will somehow harm inventors, though, I can't see how that's true. As long as you're transparent and upfront with how the infringement happens, and don't file "objectively unreasonable" lawsuits, it seems like patents are still a powerful tool to demand money from companies.

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Posted on Techdirt - 1 May 2015 @ 2:35pm

USTR Releases Its Annual Special 301 'Naughty' List Of Countries; EFF Responds With 'Special 404' List

from the who's-naughty,-who's-nice dept

We've written plenty about the ridiculousness of the USTR's Special 301 list that comes out every year at this time, naming what countries are "naughty" on intellectual property issues. The list is based on no objective measurements, but rather on submissions from lobbyists for the big legacy players with an interest in expanding copyright, patent and trademark laws. The USTR then basically takes those submissions, moves around some words, and puts out this "official" list of naughty countries. US diplomats in the various countries then go around threatening those countries if they don't "do something" (which generally means passing more draconian laws that will help these giant US companies, often at the expense of the public). A few countries -- Canada in particular -- has made it publicly known that it does not accept the whole Special 301 list as legitimate, and rejects its findings. Other countries, however, which have less ability to stand up to the US, like Spain, will often scramble to try to pass new laws to "stay on the good side" of the US. Still, pretty much everyone recognizes that the entire process is a joke. As I've pointed out many times, at a conference, I once saw the US Register of Copyrights openly mock the Special 301 list. Unfortunately, this is a joke that is no longer funny. That's because so many countries are legitimately scared about being on the list, and pass laws to get themselves off the list, with little or no concern for the actual impact on the public, free speech or innovation.

Anyway, it's that time of the year again, and the USTR has released the latest list. It is more of the same in almost every way. It tries to shame the same "big guys" as always: China, Russia and India. And it celebrates "progress" from countries that have promoted out and out censorship. For example, it praises Italy:

On December 12, 2013, the Communications Regulatory Authority (AGCOM) in Italy adopted regulations to combat copyright piracy over the Internet. The regulations, which entered into force on March 31, 2014, provide notice-and-takedown procedures that incorporate due process safeguards and establish a mechanism for addressing large-scale piracy. Italy’s subsequent implementation of the regulations has been positive, resulting in successful enforcement actions against several websites that offered infringing content. These websites have ceased operations in Italy, removed infringing content, or initiated cooperation with copyright holders. The adoption and effective ongoing enforcement of these regulations is a significant achievement, which the United States continues to welcome.
This is misleading at best and insulting at worst. We wrote about those Italian "regulations," which actually gave power to regulators to flat out censor websites with no due process at all. It's not clear how the USTR considers those appropriate "due process safeguards" when the same rules in the US would clearly be prior restraint violations of the First Amendment. In fact, in operation, we've seen Italy order tons of websites blocked on the say so of a single individual, and websites blocked entirely, even after they had removed any infringing material, and with no clear due process in place at all.

Is the US really trying to argue that copyright enforcement is more important than Freedom of Expression? Because that's the message that's being sent. Meanwhile, as we wrote about a few months ago, consumer groups are challenging the legality of this system. Will the US condemn Italy for actually recognizing how dangerous this rule is?

Along those lines, the EFF has jumped in to offer a counter list, the amusingly named Special 404 list of stories that were missing from the Special 301 list of the USTR. As the EFF notes:
On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what’s missing from Special 301 and give some balance to the USTR’s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide.

EFF’s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR’s report is fundamentally defective.
While the Special 404 list does not include Italy, it does provide examples from other countries. For example, it highlights a story we covered last year of a Colombian student facing four years in prison for uploading an academic article to Scribd. And the reason he's facing such jail time was a terrible copyright law rushed through to appease an angry US government.
Gomez is a Masters student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his career, the biggest obstacle he has faced has been accessing academic resources on global research databases. One day a couple of years ago, he came across a paper that was especially useful to his fieldwork. He later shared the research online on the website Scribd. The author of the paper then pressed charges against Gomez for the “violation of [his] economic and related rights.” Now the Colombian government is criminally prosecuting Gomez, and he could be sentenced to prison for up to eight years and face crippling monetary fines. Gomez is currently awaiting trial.


There are two primary causes of these egregious penalties. The demands of the copyright industries in the Colombia-U.S. free trade agreement led to extreme enforcement language in the deal, which then led Colombia to enact new, harsher criminal sanctions over "unauthorized" sharing and uses of copyrighted works. Additionally, Colombia does not have a flexible fair use system like the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and is narrowly tailored to some specific situations that are not at all applicable to the digital age. While the Special 301 Report pressures Colombia to toughen its copyright regime, the current system is already inflexible and has a detrimental effect on researchers like Gomez.
And yet, amazingly, the USTR's Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research). A couple of years ago, we noted that CCIA had asked the USTR to put Germany on the Special 301 list for attacking fair use. After all, if the point of the list is to highlight those who are abusing US intellectual property laws, shouldn't it work for those who abuse them against free expression and innovation as well? The USTR basically ignored this request, once again cementing the fact that it doesn't seem to care one bit about issues like civil liberties or human rights, focusing solely on intellectual property maximalism.

The Special 301 list remains a joke -- but unfortunately, it's a joke that many countries feel they need to take seriously. Hopefully, the EFF's responsive Special 404 list will provide some more perspective, and help some countries push back on the idea that just because some lobbyists put their name on a list, it doesn't really mean they should have to change their laws.

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Posted on Techdirt - 1 May 2015 @ 1:13pm

California Assembly Moves Forward With Idiotic Plan To Make All Bitcoin Startups Apply For A License

from the this-won't-end-well dept

Back in March, we wrote about a really bad bill that had been proposed in California by Assemblymember Matt Dababneh, called AB 1326. As we noted, it would basically destroy the ability of new startups in the Bitcoin space to build their businesses in California. Specifically, it would require any startup in the broadly defined "business of virtual currency" to first need to get licensed by "the Commissioner of Business Oversight" and then comply with a long list of other regulations -- including regular audits by the Department of Business Oversight. Well, unless you're a big bank or financial institution. Then you can carry on and experiment with Bitcoin all you want.

In short, the bill would reverse decades of how Silicon Valley has lead the world in innovation -- by switching from a world of rapid innovation and permissionless innovation, to one in which any startup even contemplating doing anything with Bitcoin would have to go plead their case to clueless regulators in Sacramento. It's hard to see how anyone could possibly think this is a good idea for innovation or the California economy. And yet... the assembly's committee on banking and finance has now voted the bill out of committee, sending it on to the appropriations committee and then on to the floor of the legislature.

Of course, perhaps it's not so surprising that the committee on "banking and finance" would approve this bill -- considering it gives a free pass to big banks and financial services companies while hindering startups, entrepreneurs and innovators. However, any of the many startups in California that are doing some amazing and interesting things with Bitcoin should speak up now, because California is about to tell them to move out of the state entirely.

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Posted on Techdirt - 1 May 2015 @ 8:17am

Fair Use At Risk When Private Companies Get To Make The Decision For Us

from the fair-use-in-the-age-of-the-cloud dept

We talk a lot about how fair use is under attack these days, and I've discussed in the past my concerns about freedom of expression when we always have a company (or a few companies) standing in the middle of our decisions on whether or not we can speak. NiemanLabs has a great example of where this becomes problematic in a story about how SoundCloud will not even consider fair use in making decisions about whether or not to take down content, and how that's harming journalism:

Here’s a wakeup call to audio creators everywhere: SoundCloud does not recognize your fair use rights under U.S. copyright law. If your content contains any copyrighted material to which you haven’t secured the rights — even if you have a valid fair use claim — SoundCloud may take it down at any time.

That’s exactly what happened to a former student of mine, and his experience should serve as a warning to the growing number of news organizations (including several that I work with) that use SoundCloud to host podcasts and other audio content.

Journalism as we know it could not exist without fair use, so it’s possible SoundCloud may not be a viable tool for the field. Imagine trying to do a story about the “Blurred Lines” lawsuit without playing copyrighted clips from the songs involved.

The article goes on to discuss an interesting journalism project that used a very brief clip of copyrighted music in a way that almost certainly was fair use. SoundCloud took it down. When pressed on this, the company eventually admitted that it refuses to take fair use into account, in part because fair use is only in the US:
We understand that US copyright law includes a doctrine of fair use. However, these rules are limited, difficult to apply outside of a court of law, and in any event do not necessarily apply outside of the United States. As SoundCloud is a global platform, we expect all of our creators to respect copyright law, and the rights of copyright owners, on a global basis.
As the writer of the article, Adam Ragusea, points out, this should be a major concern for any journalists using Soundcloud. And that includes us at Techdirt -- as we use SoundCloud to host our podcast. But the fact that the company might not even allow us to make use of our fair use rights -- the same rights that the Supreme Court has said are essential for protecting the First Amendment -- is a major concern, and one that has me thinking we should be looking for other platforms.

But, even then, we would most likely face the exact same situation. Any other platform will be under pressure from any sort of DMCA notice system as well. And while they could stand up for their users, many don't want to take on the liability risk. And thus, we run a serious risk of losing a key component of free expression.

And, honestly, the problem is only partially the companies like SoundCloud. The entire legal system is designed to make this sort of response the only real choice they have. With fair use being only truly available in a few countries, it's difficult to operate a global platform. This is why if we're going to put copyright into international trade agreements fair use needs to be included, otherwise we risk losing it back here in the US as well. But when you combine that situation with copyright law in which statutory damages are insane, and where the DMCA requires you to shoot first and ask questions later, it is way too easy for companies like SoundCloud to just throw up their hands and say this isn't worth dealing with.

Even companies that do try to take fair use into account -- like YouTube -- all too frequently fail to do a good job of considering fair use, leading to perfectly legitimate content disappearing, with no real recourse for the creators. This is why, beyond fair use, it seems like we need much stronger safe harbors for intermediaries like SoundCloud. It works with Section 230 of the CDA, in which the rule is pretty ironclad: the service provider should never be seen as legally liable for the content its users create. For fair use to thrive, copyright law requires a similarly ironclad safe harbor. This doesn't -- as some will inevitably claim -- mean that there is no recourse over infringement. There absolutely is. The copyright holder still has every right to target the actual end user, and that person can then stand up for their own fair use rights, which is only proper.

But under the current system, end users don't even have the chance to stand up for their own fair use/free speech rights, because third-party platforms like SoundCloud get to make the final decision for them -- and with all of the liability incentives stacked against them, free speech doesn't have a chance.

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Posted on Techdirt - 30 April 2015 @ 10:54am

Law Enforcement's Cluelessness On Display In Congressional Hearing On Undermining Encryption

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

Yesterday, the House Oversight Committee held a hearing over this whole stupid kerfuffle about mobile encryption. If you don't recall, back in the fall, both Apple and Google said they would start encrypting data on mobile devices by default, leading to an immediate freakout by law enforcement types, launching a near exact replica of the cryptowars of the 1990s.

While many who lived through the first round had hoped this would die a quick death, every week or so, we see someone else in law enforcement demonizing encryption, without seeming to recognize how ridiculous they sound. There was quite a bit of that in the hearing yesterday, which you can sit and watch in its entirety if you'd like:

Thankfully, there were folks like cryptographer Matt Blaze and cybersecurity policy expert Kevin Bankston on hand to make it clear how ridiculous all of this is -- but it didn't stop law enforcement from making their usual claims. The most ridiculous, without a doubt, was Daniel Conley, the District Attorney from Suffolk County, Massachusetts, whose opening remarks were so ridiculous that it's tough to read them without loudly guffawing. It's full of the usual "but bad guys -- terrorists, kidnappers, child porn people -- use this" arguments, along with the usual "law enforcement needs access" stuff. And he blames Apple and Google for using a "hypothetical" situation as reason to encrypt:
Apple and Google are using an unreasonable, hypothetical narrative of government intrusion as the rationale for the new encryption software, ignoring altogether the facts as I’ve just explained them. And taking it to a dangerous extreme in these new operating systems, they’ve made legitimate evidence stored on handheld devices inaccessible to anyone, even with a warrant issued by an impartial judge. For over 200 years, American jurisprudence has refined the balancing test that weighs the individual’s rights against those of society, and with one fell swoop Apple and Google has upended it. They have created spaces not merely beyond the reach of law enforcement agencies, but beyond the reach of our courts and our laws, and therefore our society.
The idea that anything in mobile encryption "upends" anything is ridiculous. First, we've had encryption tools for both computers and mobile devices for quite some time. Apple and Google making them more explicit hardly upends anything. Second, note the implicit (and totally incorrect) assumption that historically law enforcement has always had access to all your communications. That's not true. People have always been able to talk in person, or they've been able to communicate in code. Or destroy communications after making them. There have always been "spaces" that are "beyond the reach of law enforcement."

But to someone so blind as to be unaware of all of this, Conley thinks this is somehow "new":
I can think of no other example of a tool or technology that is specifically designed and allowed to exist completely beyond the legitimate reach of law enforcement, our courts, our Congress, and thus, the people. Not safe deposit boxes, not telephones, not automobiles, not homes. Even if the technology existed, would we allow architects to design buildings that would keep police and firefighters out under any and all circumstances? The inherent risk of such a thing is obvious so the answer is no. So too are the inherent risks of what Apple and Google have devised with these operating systems that will provide no means of access to anyone, anywhere, anytime, under any circumstance.
As Chris Soghoian pointed out, just because Conley can't think of any such technology, it doesn't mean it doesn't exist. Take the shredder for example. Or fire.

During the hearing, Conley continued to show just how far out of his depth he was. Rep. Blake Farenthold (right after quizzing the FBI on why it removed its recommendation on mobile encryption from its website -- using the screenshot and highlighting I made), asked the entire panel:
Is there anybody on the panel believes we can build a technically secure backdoor with a golden key -- raise your hand?
No one did -- neither DA Conley nor the FBI's Amy Hess:
But, just a few minutes later, Conley underscored his near absolute cluelessness by effectively arguing "if we can put a man on the moon, we can make backdoor encryption that doesn't put people at risk." Farenthold catalogs a variety of reasons why backdoor encryption is ridiculously stupid -- and even highlights how every other country is going to demand their own backdoors as well -- and asks if anyone on the panel has any solutions. Conley then raises his hand and volunteers the following bit of insanity:
I'm no expert. I'm probably the least technologically savvy guy in this room, maybe. But, there are a lot of great minds in the United States. I'm trying to figure out a way to balance the interests here. It's not an either/or situation. Dr. Blaze said he's a computer scientist. I'm sure he's brilliant. But, geeze, I hate to hear talk like 'that cannot be done.' I mean, think about if Jack Kennedy said 'we can't go to the moon. That cannot be done.' [smirks] He said something else. 'We're gonna get there in the next decade.' So I would say to the computer science community, let's get the best minds in the United States on this. We can balance the interests here.
No, really. Watch it here:
As Julian Sanchez notes, this response is "all the technical experts are wrong because AMERICA FUCK YEAH."

This is why it's kind of ridiculous that we continue to let technologically clueless people lead these debates. There are things that are difficult (getting to the moon) and things that are impossible (arguing we only let "good people" go to the moon.) There are reasons for that. This isn't about technologists not working hard enough on this problem. This is a fundamental reality in that creating backdoors weakens the infrastructure absolutely. That's a fact. Not a condition of poor engineering practices.

And, really, this idea of "getting the best minds" in the computer science community to work on this, I say please don't. That's like asking the best minds in increasing food production to stop all their work and spend months trying to research how to make it rain apples from clouds in the sky. It's not just counterproductive and impossible, but it takes away from the very real and important work they are doing on a daily basis, including protecting us from people who actually are trying to do us harm. That a law enforcement official is actively asking for computer scientists and cybersecurity experts to stop focusing on protecting people and, instead, to help undermine the safety of the public, is quite incredible. How does someone like Conley stay in his job while publicly advocating for putting the American people in more danger like that?

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Posted on Techdirt - 30 April 2015 @ 8:16am

Tom Friedman: If We Don't Sign The TPP Agreement, The World Will Be Overtaken By ISIS, Anarchy And China

from the who-said-what-now? dept

Famed NY Times columnist Tom Friedman is pretty widely mocked for his ridiculous platitudes that are designed to sound smart (or, more directly, to make readers think that Tom Friedman is smarter than you). But, outside of corporate boardrooms and elite politicians, it seems plenty of people recognize that Friedman's musings don't make much sense. There's even a Thomas Friedman OpEd Generator that does a pretty good job, showing how formulaic his articles are.

The key element in a Tom Friedman piece is to take some basic, simplified conventional wisdom, and try to gussy it up so that it sounds really profound. Often, this means ignoring all of the nuances and complexity behind the simple idea. A decade ago, he turned this into a whole book, The World is Flat, about globalization and how it was changing the world. He wasn't wrong, but his insights weren't particularly insightful or useful. Furthermore, he's so wedded to his thesis, that he still fails to realize that he was focused on a very exaggerated view of things, without understanding all of the related forces and consequences of what he was selling.

Given the premise of that book (and he's apparently working on a followup), it's little surprise that he's now stepped up to defend the TPP in his NY Times column space. Of course, he's going to do that, because he has a kneejerk reaction to defend "free trade deals" based on his book -- and he doesn't even seem to recognize that the TPP isn't really about free trade, other than at the margins. At least his colleague, Paul Krugman, seemed to immediately recognize that the TPP couldn't possibly help much on trade (because most trade barriers are already gone), and after talking to lots of folks realized that the TPP was likely dangerous.

Friedman, on the other hand, insists it's necessary, because without it... ISIS wins. Or something like that. Honestly, it's hard to parse out what he's actually saying because the broad meaningless platitudes just take over:

Because these deals are not just about who sets the rules. They’re about whether we’ll have a rule-based world at all. We’re at a very plastic moment in global affairs — much like after World War II. China is trying to unilaterally rewrite the rules. Russia is trying to unilaterally break the rules and parts of both the Arab world and Africa have lost all their rules and are disintegrating into states of nature. The globe is increasingly dividing between the World of Order and the World of Disorder.

When you look at it from Europe — I’ve been in Germany and Britain the past week — you see a situation developing to the south of here that is terrifying. It is not only a refugee crisis. It’s a civilizational meltdown: Libya, Yemen, Syria and Iraq — the core of the Arab world — have all collapsed into tribal and sectarian civil wars, amplified by water crises and other environmental stresses.
From there, he wanders through random musings about the collapse of civilization in the Middle East that has absolutely nothing whatsoever to do with a trade agreement concerning countries in the Pacific Rim. Then he magically brings it back around to the TPP by arguing "something something New World Order World of Order."
What does all this have to do with trade deals? With rising disorder in the Middle East and Africa — and with China and Russia trying to tug the world their way — there has never been a more important time for the coalition of free-market democracies and democratizing states that are the core of the World of Order to come together and establish the best rules for global integration for the 21st century, including appropriate trade, labor and environmental standards. These agreements would both strengthen and more closely integrate the market-based, rule-of-law-based democratic and democratizing nations that form the backbone of the World of Order.
What's amusing is that just paragraphs above, Friedman talks about the importance of "bottom-up communities" -- and yet here he seems to be saying that the big countries have to do the exact opposite and create top down order. And what kind of "order" is this? As far as I now, Tom Friedman doesn't have access to the text of the TPP because President Obama refuses to make it public.

So, as far as I can summarize, Friedman's argument is that "The Middle East is turning to anarchy, so the rest of the world needs to create strict authoritarian rules." Why? Because if we don't, China will. Because....
As Obama told his liberal critics Friday: If we abandon this effort to expand trade on our terms, “China, the 800-pound gorilla in Asia will create its own set of rules,” signing bilateral trade agreements one by one across Asia “that advantage Chinese companies and Chinese workers and ... reduce our access ... in the fastest-growing, most dynamic economic part of the world.” But if we get the Pacific trade deal done, “China is going to have to adapt to this set of trade rules that we’ve established.” If we fail to do that, he added, 20 years from now we’ll “look back and regret it.”
So, wait, now it won't be ISIS and anarchy we need to be afraid of, but China and its own rules? This entire piece makes no sense at all.

Meanwhile, actual experts in trade, like Simon Lester at Cato (who obviously is also a big supporter of free trade, but actually understands these issues), note that the whole "if we don't make the rules, China will" argument makes no sense in the real world.

And here we see yet another reason why the negotiators have made sure to keep the TPP a secret. This way, people who only vaguely think they know what "trade agreements" are about can project whatever they want on to them. And thus, magically, a "trade agreement" concerning countries in the Pacific Rim that the public can't see magically saves the world from an ISIS takeover and Chinese-made rules that aren't likely to actually show up.

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Posted on Techdirt - 29 April 2015 @ 11:45am

MPAA Gets Court To Block Popcorn Time Websites In UK, Despite Judge Admitting The Sites Don't Actually Infringe

from the we-seem-to-have-a-problem-here dept

We've written in the past about the UK going a bit nuts in ordering ISPs to block sites over potential copyright infringement, often using questionable logic and little concern for the unintended consequences of out and out censorship. Now it's reached a new, somewhat ridiculous level, in which a court has sided with various Hollywood studios in ordering a bunch of websites be blocked for merely distributing versions of the Popcorn Time software, even as the judge admits the studios' argument doesn't make much sense, since the sites themselves don't offer any infringing material, and no infringement flows through the sites themselves.

The court clearly recognizes that a site distributing Popcorn Time is quite different from torrent sites or streaming sites:

So the operators of both BitTorrent sites and streaming website sites have been held to infringe copyright by communication to the public even though the infringing copy of the copyright work itself does not come directly from those websites but because the sites contain catalogued and indexed connections to the sources of those copies. The website operators are held to have intervened in a highly material way to make the copyright works available to a new audience and to infringe.

The difference with the Popcorn Time system is that now it is the application itself running on the user's computer which presents to the user catalogued and indexed connections to the sources of the copies. If a PTAS site is purely the source from which the Popcorn Time application software is downloaded and the application itself, once operational on the user's computer, never connects back to the PTAS site then can the reasoning employed in the earlier cases apply? I do not believe it can. I cannot see how the operator of the PTAS website commits an act of communicating copyright works to the public. The PTAS site simply does not communicate any copyright works to anybody. There is no transmission (or retransmission) of the copyright work at all. What the PTAS site makes available is a tool. The tool is the Popcorn Time application. From the point of view of the user, the PTAS site is not the place at which they encounter a catalogue or index of content. It is the Popcorn Time application, when running on the user's computer, that provides catalogued and indexed connections to the sources of infringing copies of the claimants' copyright works. The operators of the PTAS sites are facilitating the making available of the content by providing this tool but that is a different matter. In my judgment the scope of the act of communication to the public cannot be stretched as far as to cover the operation of a site which simply makes the Popcorn Time application itself available for download.

Accordingly I am not satisfied that the operators of the PTAS websites Popcorn Time IO, Flixtor, and Movie Panda are committing an act of communication copyright works.
So, don't order them blocked, right? Not so fast...
The issue I have to decide is whether the suppliers of the Popcorn Time applications are jointly liable with the operators of the host websites. In my judgment they are. The Popcorn Time application is the key means which procures and induces the user to access the host website and therefore causes the infringing communications to occur. The suppliers of Popcorn Time plainly know and intend that to be the case. They provide the software and provide the information to keep the indexes up to date. I find that the suppliers of Popcorn Time have a common design with the operators of the host websites to secure the communication to the public of the claimants' protected works, thereby infringing copyright.

Although I am not satisfied in relation to communication to the public or authorisation by the operators of the Popcorn Time websites, I am satisfied that the operators of these websites (both PTAS and SUI) are jointly liable for the infringements committed by the operators of the host websites.
I understand the logic. The judge is arguing that these tools are mainly used for infringement, and thus that alone should make them somehow responsible and thus they can be blocked. But, that is one slippery slope if you follow that logic all the way down. Under that logic, the VCR should never have been allowed. In the early days -- before Hollywood figured out how to make use of them to the studios' advantage -- most VCR usage was not for authorized content. Ditto for many other innovations as well. Yet, rather than outlawing them, we allowed them to develop, and the industry eventually figured out how to use them properly.

Thanks to this kind of ruling, that will never happen with Popcorn Time (in the UK at least), and that seems pretty dangerous. It's yet another case of Hollywood shutting down what it fears, rather than learning to embrace it and give users what they want.

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Posted on Techdirt - 29 April 2015 @ 10:45am

Comic Artists Claim Copyright On Metallic Suits And The Three Point Landing

from the idea-v-expression dept

Oh boy. Another day, another copyright case in which plaintiffs don't seem to understand the basic concept of the idea v. expression dichotomy in copyright law. Once again: you cannot copyright an idea. You can only copyright a particular expression of your idea. And, yes, the line between the two has sometimes been blurred, but it doesn't change the basics. Marc Randazza now alerts us to a nutty case in which two comic artist brothers -- who at least for a time were employed by Marvel Comics -- are now suing Marvel comics for supposedly infringing on the brothers' copyright on... superheroes in armored suits and the three point landing. I'm not joking. The brothers, Ben and Ray Lai, created a comic book series called Radix in 2001, and started a company, Horizon Comics, which holds the copyright on Radix. At some later date, the brothers went to work for Marvel. They now claim that they invented both the idea of a superhero wearing body armor and the (now cliché'd) three point landing action -- and that's proof that Marvel infringed on their copyright:

It was not until after the Lai brothers' submitted their work in Radix to Marvel that Marvel began depicting Iron Man wearing the Suits. The Suits are substantially similar to the armor depicted in the Radix Materials years earlier. Neither the Lai brothers nor Plaintiff authorized any of the Defendants to exploit the Radix Materials in these or any other ways.

The depiction of Iron Man in the Iron Man Materials infringes Plaintiff’s rights in its copyrighted Radix Materials.

For example, Defendants' poster promoting Iron Man 3 (“Poster”) is a copy of a promotional piece of art for the Radix comic. An image of the Poster, alongside promotional art from Radix created years earlier, is attached as Exhibit B. The Iron Man character, including the Suit, as depicted in the Poster is the same or substantially similar to the character as he appears throughout the Iron Man Materials.
Here's "Exhibit B" in case you were wondering:
Marc Randazza -- with whom I often disagree with on copyright issues -- notes just how ridiculous this is and points out that the claims here make no sense:
Neither mechanized body armor nor the three-point landing are new to the comic world. For armor, characters of note may include Master Chief from Halo, Batman, Transformers, and perhaps the Pacific Rim comic release that coincided with the movie in 2013. Horizon seeking to profiteer here would mean that they could, I suppose, seek redress against DC for Superman’s occasional adaptation of the pose, or other places in the Anime realm including characters from Kuogane Pukapuka Tai and Naruto (which has been around since 1997). Although one may think to consider that three-point landings of note include Black Widow and Spiderman, both Marvel characters begs the question does Marvel favor the three-point stance, and did this fancy come about after Lais’ involvement?

Either way, the three-point stance and the armored wardrobe cannot so simply be claimed by the Lai brothers. We should reflect on this as an example of how not to use our lawyering super powers to crush the comic realm into copyright compliance. Copyright indeed should, though it doesn't always, cover creative and novel characters in comics, books, and movies, though we must draw the line at common tropes used to further artistic invention.

The Three Point Landing is such a cliché at this point that I hardly think it could be deemed copyrightable. See, e.g., Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999) (holding that plaintiff failed to establish substantial similarity between two films portraying detectives investigating murder in small town. The court reasoned "scenes a faire, 'sequences of events which necessarily follow from a common theme,' are not protectable.")
And for further support, he posts this little video highlighting the cliché that has become the "three point landing"
We have to get past this stupid concept that every possible idea is "ownable" and that using common clichés and tropes requires payment (or even direct acknowledgement for merely homage). That's not how culture has ever worked and to pretend that's how copyright law is supposed to work only leads to problems.

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Posted on Techdirt - 29 April 2015 @ 8:09am

Can You Sue For Copyright Infringement Before It's Actually Happened?

from the pre-crime dept

A few months ago, we wrote about a lawsuit filed by a boxing promoter that sued UStream for not taking down streams of a boxing match fast enough. The promoter claims that because it warned UStream ahead of time to block these streams, it should have been faster about deleting them. That case is still ongoing and headed to trial, but in another story of boxing and streaming, we now have an attempt at creating a legal violation of pre-crime copyright infringement. It appears that HBO and Showtime have decided to pre-sue two sites that it claims are planning to stream the big Floyd Mayweather/Manny Pacquiao boxing match. If you've somehow been under a rock, this fight is getting a ton of publicity and is set to happen this weekend.

Yet, the two big broadcasting companies that will be showing the fight, Showtime and HBO, feel that they can sue ahead of time, according to the lawsuit [pdf] -- which raises a ton of legal questions. And it seems that many of those questions could be answered with a basic "Uh, no, you can't do that."

First off: can they sue over a copyright on content that simply doesn't exist yet? HBO and Showtime say, no problem, that they'll have it eventually:

Plaintiffs intend to register the copyright in the Coverage, as joint authors, within three months after May 2, 2015.
But then there's the bigger question: can these websites be sued for breaking the law some time in the future? It seems to raise issues a la "pre-crime" and Minority Report. Yes, the sites make it pretty clear they're going to try to stream the fight, but what's the actual infringement before it happens? You can't sue over theoretical infringement. You have to show actual infringement. But HBO and Showtime seem to have made up a new form of copyright infringement: "anticipated infringement."
Defendants’ anticipated infringement will cause Plaintiffs severe and irreparable harm.
This leads to odd statements in the lawsuit about future events that simply haven't happened yet:
Plaintiffs are informed and believe and on that basis allege that Defendants will materially contribute to direct infringement of their rights in the Coverage by others, including without limitation third parties from whom Defendants acquire the infringing stream and third parties who use other websites to redistribute the infringing stream from Defendants’ websites.
Perhaps it doesn't matter in the grand scheme of things: on Saturday, the event will happen and these sites will or won't stream the boxing match. Maybe the lawsuit scares them off and they don't stream the match -- and then the lawsuit can be easily dismissed. Or, if they do, HBO and Showtime amend the complaint to move the future tense to the past tense and all is good. Assuming HBO and Showtime believe this is the case, then the lawsuit serves as something of a possible deterrent to the sites, showing that HBO and Showtime are so serious about potentially suing them, that they already have. Still, it seems somewhat questionable to sue over infringement that everyone readily admits has not yet happened in any way, shape or form.

And, don't get me started on the question of whether or not merely embedding a stream hosted somewhere else should be seen as direct infringement, but that's a discussion for another day...

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Posted on Techdirt - 29 April 2015 @ 6:07am

UK Green Party Speculates On Idea To Shorten Copyright To 14 Years... Leading To Mass Freakout

from the copyright-term-insanity dept

Last week, the Green Party in the UK got a bunch of attention when someone noticed its "Policies for a Sustainable Society" had put in a clause advocating for lessening copyright terms down to 14 years (which you may note is the same as it was originally in the Statute of Anne -- as well as under the original US copyright law).

By itself, it's not a crazy idea and, in fact, it's one that's been advocated by a variety of people as a better way to benefit the public. And, indeed, when questioned about it, someone from the Green Party said that this was based on the research of Rufus Pollock, who had argued that 14 years was an optimal time period for copyright length (we wrote about this years ago, and Pollock actually recommends 15 years based on his research). In short, there are perfectly legitimate reasons to argue for a 14-year copyright term (hell, patents only last 20 years, and there's plenty of debate on how that's way too long as well). Furthermore, as we've discussed plenty of times, back when the US had terms of 28 years and then you could renew for another 28 years, the vast majority of copyright holders (outside of movie copyright holders), chose not to renew, suggesting that there was little benefit in copyright terms so long:
Either way, it appears that the whole thing was overblown. As Tom Chance (the former Green Party spokesperson for Intellectual Property) explained in great detail, those Policies for a Sustainable Society are decided democratically by members of the party, and are a more long-term vision, rather than short-term plans. And, more importantly, the actual plan was for it to be "life plus 14":
The vision then goes on to propose “generally shorter copyright terms, with a usual maximum of 14 years”. By this, we mean that rather than the current maximum of 70 years after the creator’s death, it should only be 14 years after their death. Unfortunately, as written, this appears a bit ambiguous and has caused confusion, so it needs clearing up!
Honestly, this doesn't make much sense either. If, as the Greens claimed, they were basing the plan on Rufus Pollock's research, then "life plus 14 years" doesn't fit at all. Frankly, some of this sounds like a cop-out by a Green Party that had no idea what it was advocating. That doesn't necessarily speak well of the Party.

Either way, a bunch of folks absolutely freaked out over the idea that the Greens might support such a shortening of copyright length, with laughable claims like "how are we supposed to earn a living?"
I don't know, but in most jobs, you don't get to keep earning money off the work you did a year ago, let alone 14 years ago.

Either way, as the chart above shows, it appears that the true economic life of most books was at least well short of 28 years. Perhaps there's a magic number between 14 and 28 (again, Pollock suggests it's 15), but it hardly seems like "life plus 14" is really going to create any real hardship for anyone other than the likes of Disney or other multinational corporations.

Alas, none of it really matters, as the confused position of the Green Party quickly resulted in the party backing down and admitting that it will now review its copyright policy. Going back to Tom Chance's post, he gives a reasonable discussion as to why excessive copyright terms are a bad idea, and also highlights that the nature of copyright in the UK and the US was always about benefiting the public, not providing a "natural right" for creators to earn a living.

This is something that all too frequently gets lost in the copyright debates. Copyright system supporters insist that copyright is like a form of welfare: a right to earn money. That's why you see these ridiculous and misleading campaigns lately about "fair compensation" for creators. But that's ridiculous. Many artists make no money at all because no one likes what they produced. Or not enough people. Copyright gives you one way to earn some money, but it was never supposed to be the only system by which creative people made money. The fact that some act as if it's a natural right, and some sort of welfare program that is required to "earn" them a "living" is a perversion of history, and it makes having honest rational discussions about the optimal setup of copyright nearly impossible.

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Posted on Techdirt - 28 April 2015 @ 3:58pm

DC Appeals Court Says Anti-SLAPP Laws Shouldn't Apply In Federal Courts

from the ruh-roh dept

We've discussed for quite some time the importance of anti-SLAPP laws, and how it's ridiculous that we don't have a federal anti-SLAPP law. Once again, anti-SLAPP laws are used to toss out bogus lawsuits that were clearly filed for the sake of silencing someone's speech (SLAPP stands for "Strategic Lawsuit Against Public Participation"). Right now only some states have them, and there are many variations in the various state laws, with some much better than others. Unfortunately, a new ruling in the DC Circuit appeals court may makestate anti-SLAPP laws much less effective. That's because it says, more or less, that state anti-SLAPP laws only apply to cases in state/local courts, and not those that are in federal court (such as any case between two parties in different states).

Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment. But the D.C. Anti-SLAPP Act nullifies that entitlement in certain cases. Under the D.C. Anti-SLAPP Act, the plaintiff is not able to get to trial just by meeting those Rules 12 and 56 standards. The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.
In other words, in the DC Circuit, this finding says that as long as the dispute is between two parties in different jurisdictions, the anti-SLAPP law is basically toothless. Its reasoning is that Federal Rules of Civil Procedure list out the processes under which a court can dismiss a claim before a trial, and it doesn't include the same process as the anti-SLAPP process. And thus, the Federal Rules effectively overrule any local anti-SLAPP law in federal court.

As Paul Levy notes in the link above, this finding goes against findings in the First, Fifth and Ninth Circuits and creates a circuit split that he hopes will be appealed to the Supreme Court (even though the appeals court eventually did dismiss the case on other grounds).

Either way, this really (once again) reinforces the absolute need for a strong federal anti-SLAPP law. Not only would it solve messes like this, but it would protect free speech rights across the country, rather than allowing some states to protect them, while others allow people to be silenced via bogus lawsuits.

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Posted on Techdirt - 28 April 2015 @ 8:20am

If You're Promoting Copyright Without Fair Use, You're Promoting Out And Out Censorship

from the let's-be-clear-on-this dept

A couple of weeks ago, we wrote about how the Sony email hack revealed the MPAA's true position on "fair use," which was that it was "extremely controversial," and the MPAA didn't want it included in various trade agreements. It was amazing to see some in our comments and on Twitter attack this concept, by arguing that "fair use" is really some sort of nutty code word for "piracy." Others, bizarrely, argued that pushing for fair use was some sort of "cultural imperialism" (as opposed to extending copyright and patent maximalism, which apparently has nothing to do with such cultural imperialism...).

Geoffrey Manne jumped in with a (only slightly) less ridiculous critique, trotting out the usual talking points of copyright maximalists on why we can't have fair use in trade agreements (even if we can and do have extending copyright terms, enhancing copyright penalties, intermediary liability, and a variety of other things included in those agreements). First, he goes with the whole "fair use is piracy" ridiculousness:

Including such language in TPA would require U.S. negotiators to demand that trading partners enact U.S.-style fair use language. But as ICLE discussed in a recent White Paper, if broad, U.S.-style fair use exceptions are infused into trade agreements they could actually increase piracy and discourage artistic creation and innovation — particularly in nations without a strong legal tradition implementing such provisions.
This, frankly, is hogwash. There is no indication in any manner whatsoever that having fair use discourages artistic creation and innovation. That's simply ridiculous on its face. After all, the US currently does have one of the most permissive fair use systems (although it's still way too limited), and it's difficult to find anyone arguing that they're not creating because of all that fair use breaking out. Instead, we're in the golden age of creative content, with more people creating more content than ever before. The idea that fair use would suddenly scare people away from making content is so laughable that it really takes away any credibility Manne might have on the issue.

Next, he argues that because of the TRIPs agreement, we already have fair use in our trade agreement, known as the "three step test." And, indeed, as we discussed back in 2012, the USTR, for the first time, did agree to include a reference to the "three step test" in the TPP. But (and this is the important part), the three step test is not about including fair use, or mandating or recommending fair use, rather it is entirely about limiting fair use. That's why the three step test opens with how members are limited in how they can implement fair use rights:
Members shall confine limitations or exceptions to exclusive rights to
  1. certain special cases, which
  2. do not conflict with a normal exploitation of the work and
  3. do not unreasonably prejudice the legitimate interests of the right holder.
That's not fair use by any stretch of the imagination. That's seeking to keep fair use to a minimum.

The next point is a really common one -- that was used to block fair use in the UK (and was also brought up in Australia when that country moved towards fair use last year) -- saying that because fair use in the US relies heavily on common law/case law, it's basically impossible to implement anywhere else. However, as Matt Schruers explains in a wonderful blog post over at the Disruptive Competition Project, that makes no sense at all:
Another argument that Manne offers against encouraging balanced copyright abroad is that civil law countries cannot interpret principles like Section 107-style fair use, which are informed by common law. Legal scholars may disagree (see n.25), pointing out that civil law countries are perfectly capable of, and often do consult prior case law, not for precedent, but for its interpretive value.

In fact, civil law countries have long wrestled successfully with open-ended principles in international agreements. For example, copyright’s idea/expression dichotomy is similarly developed by common law, and yet we’ve inserted that into the TRIPS Agreement and the WIPO Copyright Treaty, both of which have numerous civil law signatories. If inserting principles interpreted through common law into trade agreements would cause the international IP system to grind to a halt, it would have happened twenty years ago.
The condescension towards the idea that countries can't figure out their own ways to apply fair use is really ridiculous. The US figured it out, and other countries can as well, even if they're civil law countries.

Schruers, in his post, takes on another ridiculous attack on putting fair use in trade agreements, this one proffered by Justin Hughes, who has been instrumental in trying to convince the government not to include fair use in trade agreements. In that argument, Hughes says that if fair use supporters really believe it gives an advantage to innovation, then we shouldn't want to export it in a trade agreement, because it's giving us an advantage:
If one believes that the fair use doctrine has been a central element in the innovation environment that has made Silicon Valley wildly successful, why would we want to promote other countries adopting a policy that, by this account, is a competitive advantage?
But, uh, doesn't that strike at the rationale for any and every free trade deal? For people who believe in free trade, we should want to export the tools that lead to greater innovation because it makes the overall pie much larger. Hughes' argument is one against free trade, and he's bizarrely pushing it as a reason for why we should include this blatantly protectionist idea, by keeping it out of a supposed "free trade" agreement. The mind boggles.

But, really, what it all comes down to is this: the Supreme Court itself has repeatedly said that fair use is the "safety valve" that makes copyright law compatible with the First Amendment. Without it, copyright law would be illegal. Many of us, of course, believe that the valve is screwed way too tightly, and that it needs to be loosened, since free expression is regularly stymied by abusing current copyright law. But, either way, it should be clear that fair use is, without a doubt, a key element in any copyright regime. Without it, you have undermined free expression and enabled out and out censorship.

If the US is really trying to export its ideals in agreements like the TPP (and yes, the answer here may be that we are not), then it must include a mandate for fair use if it is going to include a mandate for copyright. The two have to go hand in hand, or you are advocating for out and out censorship.

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Posted on Techdirt - 28 April 2015 @ 4:17am

Judge Responds To Ross Ulbricht's Request For A New Trial: Ha Ha Ha Ha, No.

from the nice-try,-though dept

This is not a huge surprise, but the judge who oversaw Ross Ulbricht's trial for being the guy behind the original Silk Road wasted very little time in flat out rejecting his request for a new trial. To say that Judge Katherine Forrest is skeptical of his arguments would be an understatement. First, the straight up denial:

There is no basis in fact or law to grant the motion and it is DENIED.
And the basic idea behind the reasoning: overwhelming evidence that Ulbricht is guilty, according to the judge:
The evidence of Ulbricht’s guilt was, in all respects, overwhelming. It went unrebutted. This motion for a new trial urges that Ulbricht was prejudiced by that which he could not know in time, or at all. But the motion does not address how any additional evidence, investigation, or time would have raised even a remote (let alone reasonable) probability that the outcome of the trial would be any different.
It then proceeds to lay out the rather long list of evidence pointing a finger directly at Ulbricht to demonstrate just how little Ulbricht's side has going for his argument.

As for the three arguments made for a new trial, Judge Forrest finds none of them convincing. This included the fact that the Justice Department dumped a bunch of things on Team Ulbricht less than two weeks before the trial, including the investigation into two federal officers who were stealing money themselves from Ulbricht -- information that was revealed to Ulbricht's lawyers, but which they were barred from using at the trial, as the investigation was still ongoing at the time.
Despite the attention given to the Rogue Agents issue in defendant’s brief, this Court remains unclear (as it always was) as to how any information relating to that investigation is material or exculpatory vis-a-vis Ulbricht. Either the defense assumes the answer is so obvious that it need not explain, or its omission is purposeful. For purposes of the instant motion, this Court assumes that defendant believes he was deprived of information which would have revealed that (1) the Rogue Agents’ conduct may have tainted any evidence relating to the website (since they assumed identities on the site), (2) the Rogue Agents may provide a link to someone (including themselves) who may have taken over the DPR account and framed Ulbricht, and/or (3) the Rogue Agents may know the identity of the real DPR. There is no basis in the record—including in any of what defendant has cited regarding the Rogue Agents—which supports any one of these theories. These theories are based on no more than speculation and premised on erroneous assumptions as to the scope of discovery obligations and the meaning of exculpatory evidence.

To start, there is no basis for this Court to believe that any undisclosed materials relating to the Rogue Agents would have been remotely useful, let alone exculpatory, vis-à-vis Ulbricht. The Rogue Agents did not participate in the USAO-SDNY’s investigation of Silk Road that resulted in defendant’s arrest and indictment, and none of the evidence at defendant’s trial came from the USAOBaltimore investigation in which the Rogue Agents participated. That the Rogue Agents may have exceeded the scope of their authority in the USAO-Baltimore investigation does not, in any way, suggest that Ulbricht was not the Dread Pirate Roberts. As this Court explained in an earlier (sealed) ruling on this topic, the investigation of SA Force is, if anything, inculpatory as it suggests that Ulbricht, as DPR, was seeking to pay law enforcement for inside information to protect his illegal enterprise.

Moreover, even if defendant could point to a favorable piece of evidence from the investigation of the Rogue Agents, defendant has not constructed any argument that had he had earlier disclosure, the result of the trial may have been different. There is no reasonable probability of a different outcome here: the circumstances of defendant’s arrest, and the evidence found in his own possession at the time of the arrest, are in and of themselves overwhelming evidence of his guilt.
Ulbricht's other arguments fail, meaning it's likely that his lawyers will now move on to the appeals court to see if it has any more luck there, but it seems like a massive long shot.

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Posted on Techdirt - 27 April 2015 @ 9:11pm

San Franciscans: Please Join Carl Malamud's Campaign To Help Free Up Court Documents

from the join-now dept

For many years, we've discussed various Carl Malamud projects to help make government information and documents more widely available (especially ones that are locked up for no good reason). One particular target of his is PACER, the court's electronic document system that is ridiculously cumbersome to use and costs an insane amount to use for even pretty mundane tasks. Earlier this year, we wrote about his National Day of PACER Protest, designed to be held on May 1st (this Friday). At the time, we suggested everyone sign up for a new PACER account (because, as if to demonstrate how stupid the PACER system is, you have to wait for the system to snail mail you your username and password before you can start using your account) to download a few documents on May 1st (PACER waives your fees if you download less than $15 in fees per quarter).

However, as we noted, this was just part of a three-pronged approach to convincing the courts to free up the PACER system. Another part was reaching out to judges to exempt certain courts and certain documents from PACER's charges. As part of that, Malamud is trying to send judges some beautiful postcards, and he's asking for people to help him do so. Here are just two of the postcards:

If you're in San Francisco this Friday, May 1st, please try to make your way to the Internet Archive's headquarters at 300 Funston Avenue, where you can send a post card (or two, or six, or 60) to Chief Judge Sideny Thomas of the Ninth Circuit appeals court, asking him to free up access to PACER for several of the courts in the 9th circuit.
I am writing to you for help. If you are in San Francisco on Friday, May 1, from 8 AM to 5 PM, I'm hoping you can stop by the Internet Archive at 300 Funston Avenue.

May 1 is Law Day, and I'm asking people to come in and write a brief postcard about why you think that access to PACER is important. More specifically, you'll be writing a postcard to Chief Judge Thomas of the Ninth Circuit of the U.S. Court of Appeals in support of my request that the Court grant us free access to PACER for several courts in the Ninth Circuit. It would be a really big deal if the Court said yes, we're trying to show public support in a way the judges can relate to.
You can also go and send your postcard directly if you can't make it to the Internet Archive:
Clerk of the Court
Attn: Docket 15-80056
United States Courts of Appeals
James Browning Courthouse
95 7th Street
San Francisco, CA 94103
This is a worthwhile and fun project. If you're in San Francisco, please try to stop by. If you're not, please consider sending your own postcard.

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Posted on Techdirt - 27 April 2015 @ 7:59am

President Obama Demands Critics Tell Him What's Wrong With TPP; Of Course We Can't Do That Because He Won't Show Us The Agreement

from the most-transparent-administration-in-history dept

President Obama is apparently quite annoyed by the fact that his own party is basically pushing against his "big trade deals" (that are not really about trade). Senator Elizabeth Warren has been pretty aggressive in trashing the TPP agreement, highlighting the fact that the agreement is still secret (other than the bits leaked by Wikileaks). In response, President Obama came out swinging against the critics of TPP arguing that "they don't know what they're talking about."

He insists that it's unfair to compare TPP to NAFTA because they're different deals:

“You need to tell me what’s wrong with this trade agreement, not one that was passed 25 years ago.”
Well, Mr. President, I would love to do that, but I can't because you and your USTR haven't released the damn text. It takes an insane lack of self-awareness for the guy who once declared his administration "the most transparent in history" to demand people tell him what's wrong with his trade agreement, when that agreement is kept entirely secret.

Furthermore, multiple experts concerning things like the corporate sovereignty ISDS provisions and the intellectual property chapters have gone into great detail as to why the leaked versions have problems. They're not complaining about NAFTA. They're actually complaining about the latest drafts -- but the USTR won't acknowledge them because they're talking about leaked versions.

In fact, the only real complaints I've seen relating to NAFTA concern the fact that the government says one thing about these big agreements, but the reality is something different.

Of course, he attacks the fact that people are complaining about the secrecy as well, by arguing (misleadingly) that the deal is not at all secret:
“The one that gets on my nerves the most is the notion that this is a ‘secret’ deal,” Obama said. “Every single one of the critics who I hear saying, ‘this is a secret deal,’ or send out emails to their fundraising base saying they’re working to prevent this secret deal, can walk over today and read the text of the agreement. There’s nothing secret about it.”
I'm a critic. I can't walk over today and read the text of the agreement. Obviously, President Obama is only talking about elected members of Congress. But that's not what they're complaining about. They're complaining about the fact that the American public cannot see the text of the document or discuss the specifics of what's in there. And that's absolutely true.

And even the fact that members of Congress can actually see the document is tremendously misleading. Yes, members of Congress are allowed to walk over to the USTR and see a copy of the latest text. But they're not allowed to take any notes, make any copies or bring any of their staff members. In other words, they can only read the document and keep what they remember in their heads. And they can't have their staff members -- the folks who often really understand the details -- there to explain what's really going on.

And it all comes back to the point that Senator Warren has been making for a long time: that former USTR Ron Kirk has admitted that a big reason why they keep the document secret is that when they tried being more transparent in the past, the agreement failed. As Warren says, if being transparent with the American public means the agreement will fail, then the problem is with the agreement, not the public.
“When I keep on hearing people repeating this notion that it’s ‘secret,’ I gotta say, it’s dishonest,” Obama continued. “And it’s concerning when I see friends of mine resorting to these kinds of tactics.”
Here's a little test: can we see the current TPP documents today? No? Then it's secret. Claiming otherwise is what's dishonest.

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Posted on Techdirt - 27 April 2015 @ 5:47am

Dan Bull's 'Death To ACTA' Video Silenced After Claim From Rapper Who Used The Same Sample

from the wait,-what-now? dept

Back in 2010 we wrote about rapper Dan Bull's excellent "Death to ACTA" song and video, which is a parody of Jay-Z's "Death of Autotune." In 2011, we further wrote about the MP3 of that song (which Bull distributes willingly on file sharing platforms) being taken down from Mediafire due to a questionable takedown request. Now, years later (well after ACTA is pretty much long dead), Dan's discovered that his video on YouTube was just silenced due to copyright claims.

He wondered what it was about and discovered two claims on the video -- one being ridiculous, with the other being merely questionable.
The ridiculous one is the claim about Bigg Brass's song, "Death of Fake Rapperz". That one, like Dan's, uses the backing track from Jay-Z's "Death of Autotune." The actual track that Jay-Z sampled is "In the Space" by Janko Nilovic and Dave Sarkys. It's likely that Jay-Z licensed that track (though he's run into legal trouble at times for failing to license some tracks). If anyone would have a claim over Bull's track then, it would likely be those guys. Here, it appears that Bigg Brass is working with the big digital distributor, The Orchard, who didn't even bother to figure out that Bigg Brass was using a sample of his own and just went hog wild stupidly going after others' music. The Universal Music Group claim is slightly more reasonable, but only slightly. Again, the actual music is not Jay-Z's but Nilovic's and Sarkys' and they don't appear to be the ones complaining.

At the same time Jay-Z has been quite public about his support for artists remixing his tracks into other songs saying that he's "honored" when it's done. It may be that Jay-Z doesn't hold the copyright for DoA, but even so... it seems like a pretty weak claim to go after Dan Bull. And, of course, you can find a ton of other videos that use the same backing track for their own songs. Here's one. And another. And another. And another. And another. And another. And another. And another. And there are a lot more. I'm just getting tired of cutting and pasting.

And none of those other ones are silenced.

Just Dan's. It almost makes you wonder if Universal Music has... a political reason for trying to silence Dan's songs, such as the fact that it mocks an international agreement that the recording industry was highly supportive of. And they say copyright isn't used to censor free speech...

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Posted on Techdirt - 24 April 2015 @ 2:51pm

Trademark Examiner Not Swayed By Katy Perry's Attempt To Trademark The Left Shark

from the shake-it-off dept

We've written a few times about the so-called left shark, the internet meme that took off after one of singer Katy Perry's backup dancers (in a shark costume, naturally) looked a little "off" during her Super Bowl performance earlier this year. The internet went crazy and created all sorts of memes around "left shark." A guy named Fernando Sosa started selling 3d printed Left Shark figurines -- and then Perry's lawyers freaked out and basically claimed ownership to all things "left shark."

Thankfully, the guy selling those 3D printed left sharks, Fernando Sosa, was able to retain lawyer Chris Sprigman, who pointed out that there is no copyright in costume design. Soon after that, we noted a bizarre twist on the story, in that Perry's legal team made a quick effort to go and trademark left shark, while (amazingly) using one of Sosa's photos of his own 3D printed models as the photo they submitted showing what they were trademarking.

Either way, Perry's legal team has been working on a few different trademarks related to "left shark" but apparently trademark examiner David Collier has some concerns about Perry's trademarking attempt:

David Collier, the trademark examiner, isn't yet impressed by the attempt to register the design, which, he wrote, "identifies only a particular character; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services."

In other words, there's not enough evidence submitted yet that consumers look at "Left Shark" and think of a Katy Perry music performance.

The examiner also noted the differences between a photograph of Perry dancing with "Left Shark" and the drawing of "Left Shark" submitted as the design.

"Specifically, the [photograph] displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail," he wrote. "The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the shark's mouth appears without teeth; the shark also has oval eyes without eyelids."
Of course, we feel obliged to go back to a point that Sprigman made early on in these discussions: while Perry may have had something to do with creating Left Shark, she had basically nothing to do with the reasons why Left Shark became "Left Shark" rather than "random dancing character in a big show that everyone forgets soon after." As Sprigman noted:
No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn’t really about Katy Perry.
So if anyone deserves a trademark on it, it should be "the internet." Or we can just make this simple and not trademark it at all.

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Posted on Techdirt - 24 April 2015 @ 8:02am

Recording Industry's Latest Plan To Mess Up The Internet: Do Away With Safe Harbors

from the because-collateral-damages-is-foreign-to-you dept

For the most part, the recording industry has been rather quiet of late concerning copyright reform. With labels pulling funding from the RIAA and its international sister operations like the IFPI, the focus on copyright reform has been left mainly up to Hollywood and the MPAA. The recording industry has been much more focused on smaller issues like performance rights and other licensing issues. But, apparently, the recording industry hasn't yet truly given up on the idea of completely undermining key parts of the internet to get its wishes. According to the IFPI, its "top" goal for copyright reform is attacking the so-called "safe harbors" found in copyright law, like the DMCA's Section 512.

If you're unfamiliar with it, copyright's safe harbors are designed to make sure that the internet thrives, by avoiding frivolous litigation that would stifle free expression and innovation. Honestly, the safe harbors are a pretty simple concept: put the liability for infringement on the parties that actually infringe the content, rather than the internet services that they use. Think of it this way: you don't blame Ford for providing the getaway car in a bank robbery, and you don't blame AT&T for providing the phone service used to make a bomb threat. As such, it makes no sense to blame a hosting company because a blogger posted an infringing image.

IFPI's main target, not surprisingly, is YouTube. It makes a strained argument that the DMCA's safe harbor is costing the recording industry hundreds of millions of dollars -- and it does this by comparing apples to oranges.

Which results, the record industry argues, in what the IFPI calls a “value gap”. The trade group says: “An illustration of this can be seen in comparing the share of revenue derived by rights owners from services such as Spotify and Deezer, and those derived from certain content platforms like YouTube or Dailymotion. IFPI estimates music subscription services have 41 million paying global subscribers, plus more than 100 million active users in their ‘freemium’ tiers. This sector generated revenues to record companies of more than $1.6 billion in 2014″.

It goes on: “By contrast, YouTube alone claims more than one billion monthly unique users and is thought to be the world’s most popular access route to music. Yet total global revenues to record companies generated by certain content platforms including YouTube amounted to just $641 million in 2014, less than half the total amount paid to the industry by subscription services such as Spotify and Deezer”.
Note the implicit (and wrong) assumption, though: that YouTube and Dailymotion are the equivalent to Spotify/Deezer. Yet, much of the value in YouTube and Dailymotion is that they are platforms for anyone to upload any content, the vast majority of which is not music. But that point never seems to be considered by the IFPI at all. Instead, it wants to remove the safe harbors entirely from YouTube, by arguing that since the company is also providing services to help artists make money, it should lose its safe harbors:
Calling for action, IFPI chief Frances Moore said: “The value gap is a fundamental flaw in our industry’s landscape which sees digital platforms such as Dailymotion and YouTube taking advantage of exemptions from copyright laws that simply should not apply to them. Laws that were designed to exempt passive hosting companies from liability in the early days of the internet – so-called ‘safe harbours’ – should never be allowed to exempt active digital music services from having to fairly negotiate licences with rights holders”.

She added: “There should be clarification of the application of ‘safe harbours’ to make it explicit that services that distribute and monetise music should not benefit from them”.
But think about the obvious consequences to such a move (obvious to everyone but the recording industry, it seems). Removing the safe harbors from YouTube would have tremendous collateral damage, basically making the platforrm useless for all user generated content. It would effectively require Google to carefully pre-screen every video that goes up (beyond what it does now with ContentID -- which already, problematically at times, goes beyond what the law requires).

Furthermore, the message that Moore and IFPI are saying to the rest of the internet is don't help us monetize because the second you do, you should lose your safe harbor protections and immediately become liable for the actions of your users. How shortsighted can Moore possibly be? The recording industry's plan here is to basically tell the internet: don't build services that help us make money or we'll sue you. How is that possibly a smart strategy?

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Posted on Techdirt - 24 April 2015 @ 12:57am

If You Really Think TPP Is About 'Trade' Then Your Analysis Is Already Wrong

from the don't-fall-for-the-marketing. dept

George Mason University professor Bill Schneider recently had an interesting blog post over at Reuters in which he discusses how Hillary Clinton is in a tough spot concerning the TPP and TTIP agreements, in that much of the Democratic party is now vehemently against these "trade" deals, while historically, the Clintons have been for them. The piece argues that whichever side Hillary takes will create a problem for her presidential campaign. The politics in the piece may be right, but almost the entire thing is built on the assumption that the TPP agreement really is about "trade" and that such an agreement will lead to cheaper goods and such. Take this passage for example:

Trade is not an ideological issue. It’s a populist issue — the people versus the establishment. Ordinary Americans are suspicious of trade deals. Economists have a hard time understanding this, but most people see trade not as an economic issue but as a moral issue.

People think it’s wrong for them to benefit as consumers from lower prices for foreign-made goods if it throws Americans out of work. Will they purchase the foreign-made goods? Of course they will — as long as they’re cheaper. That’s rational economic behavior. They just don’t think they should be allowed to.
I don't think that's actually what people are thinking at all, but even if we run with it, it's based on the very faulty premise that these agreements have anything to do with free trade at all. As we've discussed in the past, they do not. They are quite clearly often about the opposite of free trade. In the past, we've strongly recommended Michael Goodwin's epic comic about TPP where he shows how it's really got little to do with free trade, and everything to do with the ability to move investment capital around:
Perhaps an even better explanation comes from Tim Lee over at Vox, who goes into the history of these agreements, noting that the "free trade" stuff has mostly already been taken care of, as there aren't that many meaningful tariffs/trade barriers left. Instead, trade agreements have become a sort of secret playground for big corporations to abuse the process and force favorable regulations to be put in place around the globe. He discusses the history and how organized labor, the copyright industries, the pharmaceutical industries and more now basically use trade agreements as a secretive, anti-democratic process to force through regulations they want.
As the opportunities for trade liberalization have dwindled, the nature of trade agreements has shifted. They're no longer just about removing barriers to trade. They've become a mechanism for setting global economic rules more generally.

This trend is alarming to Simon Lester, a free trader at the Cato Institute. "We've added in these new issues that I'm skeptical of," he says. "It's not clear what the benefits are, and they cause a lot of controversy."

And this system for setting global rules has some serious defects. We expect the laws that govern our economic lives will be made in a transparent, representative, and accountable fashion. The TPP negotiation process is none of these — it's secretive, it's dominated by powerful insiders, and it provides little opportunity for public input.
If you make the facile assumption that the TPP is actually about free trade, then you might be confused about all the hubbub about it. If you actually take the time to understand that much of what's in there has nothing to do with free trade and, in fact, may be the opposite of free trade, you realize why there's so much concern.

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Posted on Techdirt - 23 April 2015 @ 12:40pm

Senators Introduce Anti-Aaron's Law To Increase Jail Terms For 'Unauthorized Access' To Computers

from the someone-buy-these-senators-a-clue dept

Yesterday, we wrote about an important new bill, Aaron's Law, from Senators Ron Wyden and Rand Paul and Rep. Zoe Lofgren. It's a fix to many of the problematic aspects of the Computer Fraud and Abuse Act (CFAA). If you're unaware, the CFAA is supposed to be a law to be used against people doing malicious hacking, but the wording is so broad and problematic, it has been used against people for merely violating the terms of service on a website, or someone using a work computer for non-work-related items -- which could lead to excessively long jail terms. The reason Aaron's Law is named that is because of Aaron Swartz, the guy that Federal Prosecutors publicly announced was facing 30 years in jail under the CFAA because he downloaded too many academic journal articles from JSTOR -- despite the fact that he did so on the MIT campus where the campus had a site license that allowed anyone on their network to download all the JSTOR papers.

As we noted in our post, there are still some who are pushing in the other direction -- and they didn't waste much time. The very same day that Aaron's Law was introduced, Senators Mark Kirk and Kirsten Gillibrand introduced a competing law that appears to be a "We Should Have Threatened Aaron With More Years In Jail" Act. Okay, technically it's called the Data Breach Notification and Punishing Cyber Criminals Act -- and as I type this, no one seems willing to release the text. Both Senators have press releases out about the bill, but neither link to it, and Congress's website has a placeholder saying that it hasn't received the actual text yet either. Hopefully that will change soon.*

It's bizarre that they're lumping together data breach notifications and CFAA expansion in a single bill. These are two separate issues. And yet, from the press release quotes and the few small articles about these bills, it appears that everyone's focusing on the data breach notification stuff (which has its own problems) and thus we should be worried that the CFAA expansion could get included as something of a "throw in." The quotes, however, on this part of the bill are ridiculous. Here's Senator Kirk's press release:

This bipartisan legislation increases the maximum allowable fines and imprisonment for many of the most common cyber-crimes, including identity theft and theft of personal information. Current law does not sufficiently punish cyber criminals, and incidences like these recent devastating breaches of confidential information must be punished more aggressively. By modernizing these punishments, as many prosecutors have requested, we will better align punishments to the degree of harm that these crimes may inflict on victims.
And Senator Gillibrand's:
The bill raises the maximum allowable fines and imprisonment for many of the statutes which cyber criminals are charged: identity theft, conspiracy to commit access device fraud, obtaining information from a protected computer without authorization and computer hacking with intent to defraud.
It's the whole "obtaining information from a protected computer without authorization" that is a serious concern here, as that's part of what's been widely abused. Both Kirk and Gillibrand use a lot of populist rhetoric about protecting people from all these scary data breaches out there, but it demonstrates a serious ignorance of how widely the CFAA (with insanely large existing punishments) has been used repeatedly for activities no one legitimately thinks of as malicious hacking. Furthermore, it suggests a pretty serious cluelessness about the incentives and motivations of those who commit many of those breaches. Increasing the number of years they could spend in time from crazily high to insanely high isn't going to change a damn thing. And if these two Senators can't understand that, they shouldn't be touching the CFAA at all.

* As an aside, it's plainly ridiculous for anyone to announce a new bill without releasing the actual text. Even more ridiculous: in searching for the text of the actual bill on both Senators websites, I note that the very first item highlighted on Senator Gillibrand's website is "Transparency" where it says "Senator Gillibrand believes that more openness and transparency in government leads to more accountability and better results." Well, you know what might helps with that transparency? If you actually release the text of the bills you're introducing when you introduce them so that people can take a look at them.

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