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About Mike MasnickTechdirt Insider

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

He can be found on Twitter at http://www.twitter.com/mmasnick



Posted on Techdirt - 25 May 2018 @ 3:23am

ICE Trying To Deport Journalist For Reporting On Abusive ICE Behavior

from the thugs-in-uniforms dept

For many years (looong before this current administration), we've documented the problems with ICE, a government agency that has long been totally out of control, abusing its power and authority not just in dealing with immigration, but in literally seizing blogs, because Hollywood told them to do so. The organization has done nothing to improve its reputation over the years, and lately almost seems to relish in the free reign it has to act like complete thugs in uniform.

The latest story -- as with seizing blogs -- appears to have some serious First Amendment concerns, though there's no indication that ICE cares at all about that. In this story, ICE detained a journalist and is trying to have him deported because of that reporter's coverage of ICE activities. Freedom of the Press has the details, but the short version is that Manuel Duran, who fled El Salvador a decade ago over death threats there, has been living in the US and reporting for a few different Spanish language news organizations.

In April, he was reporting on immigration protests in Memphis when he was arrested. That, by itself, is problematic enough. All too often we've seen reporters being arrested for covering protests, despite multiple courts stating quite clearly that such arrests violate the First Amendment. Indeed, Duran's own case was dropped and the judge dismissed the case. However, ICE not only refused to let Duran out of jail, it transferred him to another ICE detention center, and are trying to deport him back to El Salvador.

Duran has been living in the United States for over a decade, since he fled from El Salvador after his life was threatened. His life is here, and this is his community. He has worked for Memphis publication Las Noticias for years, where he has done important reporting exposing ties between local police and ICE and covered immigration detention.

Duran’s attorneys say it is precisely this critical reporting that led law enforcement to target him. "The actions pursued by government officials in this case threaten core First Amendment freedoms that are essential to our democracy: the right to criticize and expose the actions of government officials, and the right of members of the press to write and publish about them," a legal filing by Duran’s attorneys states.

Duran wrote a statement from behind bars, which was read by his girlfriend at a press event in Memphis on April 16. “This episode in my life has not been easy, but I have taken it as an opportunity to learn first hand the drama and reality that our families are living when they are arrested by immigration and then deported,” it reads. “This is a cruel system that criminalizes people who pose no danger to this country.”

Once again, it appears that continuing to detain him is a clear attack on the First Amendment. Some will almost certainly argue that if he's undocumented, there's no excuse and he should be deported. But the fact that he was clearly targeted for his 1st Amendment protected activities should be a massive concern to everyone -- even those who agree with plans to deport undocumented people in America.

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Posted on Techdirt - 24 May 2018 @ 12:05pm

Court Says It's Unconstitutional For Trump To Block People On Twitter, But Doesn't Actually Order Him To Stop

from the does-the-President-care? dept

Just last month, we noted that a court in Kentucky had ruled that the Governor of that state was free to block critics on social media accounts, saying that while people are free to speak, the First Amendment does not mean that the Governor has to listen. As we noted at the time, that ruling did not bode well for a more high profile case that was filed by the Knight First Amendment Center at Columbia University against President Donald Trump under similar circumstances. However, as you may have heard, a federal court in New York has now ruled that Trump's blocking is unconstitutional.

This is, not surprisingly, getting lots of attention, but many people commenting on it are not fully understanding the actual issues in the lawsuit (shocking, I know, that people doing legal analysis on the internet might sometimes not get it right...). As we've noted plenty of times in the past, the First Amendment does not apply to private platforms, and nothing in this ruling means that Twitter is a "public forum" (as some nuttier lawyers are trying to argue in other cases). Instead, the ruling is specific that it is just the commentary in response to Donald Trump that has become a public forum.

Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account... Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets. While their control does not extend to the content of a retweet or reply when made -- “[n]o other Twitter user can alter the content of any retweet or reply, either before or after it is posted” and a user “cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts,” ... -- it nonetheless extends to controlling who has the power to retweet or reply in the first instance.

Got that? It's an important nuance. Basically, the court is saying that because the President and his assistant "control" the space in which discussion occurs following his Tweets, that makes it a "designated public forum" and then, because it's the President and he is (duh!) a powerful government official, and government actors are not allowed to stifle protected speech, blocking accounts violates the First Amendment rights of those blocked. First, the court notes that that space in response to Trump's tweets is governmental in nature:

The President and Scavino’s control over the @realDonaldTrump account is also governmental. The record establishes (1) that the @realDonaldTrump account is presented as being “registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” ... (2) “that the President’s tweets from @realDonaldTrump . . . are official records that must be preserved under the Presidential Records Act,” ... see 44 U.S.C. § 2202 (directing the retention of “Presidential records”; id. § 2201(2) (defining “Presidential records” as those created “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”); and (3) that the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy, ... -- all of which are squarely executive functions.... That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President. Accordingly, we conclude that the control that the President and Scavino exercise over the account and certain of its features is governmental in nature.

And thus, blocking is unconstitutional under the First Amendment because blocking people based on what they've said is a content-based restriction on speech:

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” ... and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” ... The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

The court further finds that using Twitter's mute feature, rather than block, would be Constitutional, because that doesn't implicate the others' right to speak in that public forum (though it does stop Trump from seeing those tweets).

Given these differing consequences of muting and blocking, we find unpersuasive defendants’ contention that a public official’s muting and blocking are equivalent, and equally constitutional, means of choosing not to engage with his constituents. Implicit in this argument is the assumption that a reply to a tweet is directed only at the user who sent the tweet being replied to. Were that so, defendants would be correct in that there is no difference between the inability to send a direct reply (as with blocking) and the inability to have that direct reply heard by the sender of the initial tweet being responded to (as with muting). But this assumption is not supported in the record: a reply is visible to others, ... and may itself be replied to by other users.... The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.

In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.

There is one odd bit that is not mentioned in most of the commentary on this ruling. And it's this: the court does not actually order Trump to stop blocking people. It just says that it's unconstitutional. Given the choice between giving the Knight Center injunctive relief (i.e., forcing the defendant to comply) and merely declaratory relief (i.e., telling the plaintiff they are correct), it chose the latter. It notes that there is some question of whether or not the courts can impose injunctive relief on a sitting President, and decides to side-step the question altogether.

While we find entirely unpersuasive the Government’s parade of horribles regarding the judicial interference in executive affairs presented by an injunction directing the President to comply with constitutional restrictions, we nonetheless recognize that “[a]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.”

It does note that it could award injunctive relief against the guy who helps manage the Twitter account, Dan Scavino, but chooses not to. In effect, the court says that by granting declaratory relief and merely saying that this activity violates the First Amendment, that should be enough to convince Scavino and Trump to stop blocking:

Accordingly, though we conclude that injunctive relief may be awarded in this case -- at minimum, against Scavino -- we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,”... (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time.

Given this particular administration, that seems like a mighty big assumption. The White House has, at the very least, already suggested it will appeal this ruling, so the issue of declaratory v. injunctive relief may not really be all that important or get much attention, but it does seem noteworthy that the court seems to say it doesn't need to order the President to do anything since it expects him to respect its ruling. Some people might fight that assumption somewhat laughable.

Meanwhile, this President, who has at multiple times claimed to be a huge First Amendment supporter, has lost a First Amendment case for stomping on the rights of some of the citizens of the country whose government he runs.

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Posted on Techdirt - 24 May 2018 @ 9:29am

Hey Elon Musk, Let's Talk About The Media

from the bad-press-happens,-attacking-the-media-doesn't-help dept

Hey Elon,

Let's start this off by noting I'm generally a big fan of what you've done over the years with your various companies (Zip2 always seemed a bit silly, but, you know, since then...). Just recently I got a tour of the Tesla factory and I felt like Charlie in the Chocolate Factory, even if I didn't get to own the factory when it was over. I've also been impressed by the way you decide to seriously "just get it done" when you see something that should be done. I mean, half the world seemed to think your idea for the Boring Company was actually a joke and yet a year and a half later, you've got a freaking tunnel under LA (in contrast, the 2nd Avenue Subway in NY was proposed in 1919 and just opened partially last year). So, like, I take it seriously when you say you've got a new project underway.

And, yesterday you went on a bit of a Twitter rant about the media and said that you were going to start a media truth rating site called Pravda (clever!). And, as with the Boring Company, I believe you'll do it. I mean, you actually did incorporate Pravda Corp. last fall. So, you've got that going for you.

On top of that, I even think you have a general point about how bad the mainstream media is. We've been at this for over 20 years, and some of our most successful stories have been calling out really bad reporting by big publications. It's good to keep them honest.

That said, I have some pretty serious concerns about this whole setup and believe you've misdiagnosed the problem. Let's start with your tweet that suggests the reason reporters get stories wrong is because they're incentivized by clicks and ad dollars:

I'm curious if you could point to any actual example of that happening in practice today for a mainstream publication? I know that Gawker -- who your former colleague Peter Thiel killed off -- used to pay writers a bonus based on clicks, but I can't think of any other news organization that still does that. It's a nice story that people outside the media like to claim, but actual journalists know is not actually the case. Hell, here at Techdirt, I've never actually told any of our writers how much traffic their stories get, because I don't want them thinking about clicks at all. I want them to write the best stories they can write, and then they can let me focus on how to monetize good content and a good insightful community, rather than just going for scale and clicks.

And, as for the whole "fossil fuel companies as advertisers" bit, it may be true that there are some publishers out there who do worry about offending their advertisers, but I've almost never seen that information conveyed to the journalists themselves, and in the rare cases where that does happen, lots of journalists would (and do) quit rather than feel that their reporting was compromised by advertisers. So, blaming "clicks" and "advertisers" for more sensational stories you don't like is -- dare I say it -- "fake news" (in the parlance of our times, even if that's a dumb and meaningless phrase). It's good to correct the record when the press gets something wrong, but imputing incorrect motives to the reason for the coverage has serious consequences that you really might want to think about.

The reason Tesla gets lots of coverage, both good and bad, is because it's a fucking fascinating company. You've built (1) the first successful new American car company in like a century and (2) done it with an important advancement in technology (electric cars) that have failed in the past. It's a fascinating story. And, as tech comms guy Aaron Zamost pointed out years ago, there's a predictable cycle of "Silicon Valley Time" in how all successful companies tend to get covered -- for good or for bad. For what it's worth, it looks like you're somewhere in the 9 to 10 o'clock hour on Zamost's clock (which actually means you're not that far off from hitting 12 o'clock and getting to start the cycle again.)

But, let's get back to this whole Pravda (again, clever name!) idea (or is it called "You're Right!" now?). I know it feels like you're striking back against some recent bad media coverage. But, honestly, you're really just serving to call more attention to some of the negative stories about Tesla out there right now (including an eye-opening story from the Center for Investigative Reporting, a non-profit not exactly known for clickbait or making decisions based on its non-existent advertisers). Of course, you've done this before as well. I wrote about it five years ago, when another instance of you lashing out at the media only seemed to call more attention to those negative stories.

There's a term for that sort of thing that maybe you haven't heard about.

But, there is a larger, more important issue here that should be discussed. I know you've dismissed a few people who have suggested your anti-media rant does more harm than good, but you might want to rethink that stance. Yes, the media makes mistakes. Sometimes those mistakes are pretty serious. And, yes, some media organization are just... terrible. But painting the entire media industry with a broad brush, at the same time that many other powerful institutions who don't want to be held accountable (*cough* *cough*) are doing the same thing, doesn't help make the media better or more credible. It just empowers those who seek to discredit the actually good and necessary job of underpaid, overworked reporters who are actually breaking important stories, holding the powerful accountable and speaking truth to power.

Indeed, if you've actually read this far (and I know that's unlikely, but humor me), I would recommend seriously considering the four questions that Alexios Mantzarlis at the Poynter Institute (again, a non-profit known for supporting serious, thoughtful journalism) had for you about this plan -- which really lays out all the ways in which your plan can go wrong. Crowdsourcing has lots of benefits. But crowdsourcing "truth" tends to turn into a popularity contest of narratives. And, as we've seen, sometimes that leads to some pretty fucked up outcomes.

And you don't need to encourage that kind of thing just because a few journalists pissed you off. You're crazy rich and super powerful. The journalists you are maligning tend to be neither of those things. And your plan looks likely to make things not just worse for them, but to make their jobs in actually bringing about truth that much more difficult.

I might not know how to build a cool factory like the Tesla factory or be able to launch my sports cars into space, but I do know something about the media world. And your little tirade and plans to "fix" things, are based on faulty assumptions and will make a difficult situation for the media much worse -- doing pretty serious damage to the good work that much of the media actually does. I have no problem with calling out bad reporting, weak fact checking, silly assumptions and the like. You've got a powerful soapbox and you should use it accordingly. But, tarring and feathering the entire media and providing tools for everyone else to do the same is going to lead to really bad outcomes.

So, please, focus on continuing to do the impossible with your various companies rather than attacking the media. The Silicon Valley clock will keep ticking, and it'll be 12 o'clock before you know it. Hopefully, by then, there may even be some Teslas that those of us working in media can actually afford.

Thanks,

Mike

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Posted on Techdirt - 23 May 2018 @ 3:39pm

EPA's War On Journalists Is Not A Good Look

from the even-if-it's-become-sadly-expected dept

The Obama administration was terrible when it came to how it treated journalists, acting vindictively against many journalists, and opening up investigations that created massive chilling effects on journalism. While some supporters of our previous President insisted that these actions were necessary due to the journalists "leaking" or revealing sensitive information, that's a ridiculous claim. A journalist's job is to report on things, including revealing the kind of information a government would prefer be kept secret. And, more importantly, normalizing a government at war with the journalists who cover it was bound to be abused even more going forward.

And that brings us to the current administration, whose attacks on journalists have been frequent as well, though of a different, more clumsy nature. While the last administration focused on keeping secrets and launching chilling investigations, this one seems focused on name calling and hamfisted attempts at shutting out the media in the most obvious and petty of ways. Neither approach is good, but the current administration's attacks on journalists are so blatant and so stupid, it just makes people wonder what they're so afraid of.

While most people think mainly about the President's comments about the media, the EPA's attitude towards the media may be even more instructive. Just a few weeks ago, NY Times reporter Eric Lipton, in an interview with NPR's Terry Gross, explained how the EPA sought to shut out the media:

Well, this has been something that's been apparent to reporters that cover the EPA for a year now where every Friday or so we send in a request to the Agency to ask them what's up this week, where is the administrator going? And, you know, therefore can we be there essentially to observe his activity as he travels around the United States, in some cases around the world? It's part of our job to cover that. They never tell us where he's going.

And, you know, every Friday we send in this email to say, you know, we're trying to do our jobs to cover the Agency. What they do is they take their trips. They require that the participants that are, you know, part of the various events that they're going to have not tell any reporters unless they selectively pick a reporter they think is going to give them good treatment. And the only time that we become aware of it is when Scott Pruitt or his staff sends out tweets, and then they issue a press release with photos taken from the staff. So honestly, it's a bit like propaganda as opposed to actual events that the public has access to.

Later in the interview, Lipton shares another story of how EPA boss Scott Pruitt almost ended up at an event where open questions would be asked -- after the organizer of the event declared that it was a town hall-style event with questions, and the EPA not only flipped out and said no Q&A would be allowed, but sent that organizer a list of "allowed" questions that included hard hitting journalistic inquiries like "What has it been like to work with President Trump?"

So it should come as little surprise that on Tuesday, at an event where Pruitt was scheduled to speak, the EPA decided to just keep a bunch of reporters out. Specifically, reporters from the Associated Press, CNN, and an environmental publication called E&E News. In the case of the AP reporter, Ellen Knickmeyer, security allegedly "grabbed [her] by the shoulders and shoved [her] out of" the EPA building.

The EPA's response was that these reporters were blocked due to space constraints:

“The leadership summit quickly reached capacity with a wide variety of stakeholders including representatives from over 40 states, territories, and tribes,” Wilcox said in a prepared statement.

And that sounds like a valid excuse until you hear that there were "dozens of empty seats in the room" according to reporters who were there (mentioned in the same link above).

The EPA also tried to blame the AP reporter for security grabbing her and removing her from the building, but later had to change its false statement claiming that she had tried to shove her way in, which does not appear to be true.

After security told her that “we can make you get out,” Knickmeyer said she took out her phone to record what was happening. Some of the security guards reached for it, and a woman grabbed her shoulders from behind and pushed her about five feet out the door.

Wilcox issued a statement late Tuesday saying Knickmeyer “pushed through the security entrance.” After the AP objected to the characterization, the spokesman issued a second statement removing that account and instead saying Knickmeyer “showed up at EPA but refused to leave the building after being asked to do so.”

Separately, the argument that this was a space issue is undermined by a report that the EPA had a list of which reporters were to be blocked. According to CNN:

A CNN photographer was screened by security guards before the event and was waiting for an escort or further information. Wilcox arrived soon after and provided security with a list of news outlets and reporters, instructing them not to let anyone not on the list into the event. The CNN photographer then asked if he could enter the event and was told by security he couldn't.

This is a really bad look for an agency that already is looking pretty dismal. The fact that some press was let in and others weren't -- and that phony excuses were used multiple times in multiple ways -- suggests an agency that wants to be vindictive against coverage it doesn't like. These kinds of attacks on the press may be different in nature than those of the previous administration, but it does show how the general attacks on the press by any administration are shameful attempts to avoid being held accountable. While the strategies may be different, the end effect is a much weaker and less well-informed society. That should be seen as a serious problem.

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Posted on Techdirt - 23 May 2018 @ 10:40am

Many Of Those Desperate GDPR Emails You've Been Getting Are Violating A Different EU Regulation

from the not-to-mention-unnecessary dept

As we careen wildly into a post-GDPR world at the end of this week, you've probably already been inundated with tons upon tons of emails from various companies where you either have an account or have been signed up for their mailing list. Some of these emails likely note that they want you to confirm that you want to remain on their list because of the GDPR. Others pretend they're just checking in with you for the hell of it. According to an expert in EU regulation, many of these emails probably violate another EU regulation, one designed to make spamming illegal. As for the others? They're almost certainly not necessary under the GDPR and appear to be people misunderstanding the GDPR "out of an abundance of caution."

In short, if a service already has proper permission from you, then it doesn't need to get it again. If it doesn't, it's violating EU spam regulations by asking you to give your consent to receive such messages.

Vitale said, if the business really does lack the necessary consent to communicate with you, it probably lacks the consent even to email to ask you to give it that consent.

“In many cases the sender will be breaching another set of regulations, the Privacy and Electronic Communications Regulations, which makes it an offence to email someone to ask them for consent to send them marketing by email.”

And, yes, EU regulators are aware of all of this:

“We’ve heard stories of email inboxes bursting with long emails from organisations asking people if they’re still happy to hear from them,” Steve Wood, the deputy information commissioner, wrote in guidance for businesses. “So think about whether you actually need to refresh consent before you send that email, and don’t forget to put in place mechanisms for people to withdraw their consent easily.”

Like Vitale, Wood emphasised that asking for marketing consent from people who had not given it initially could be illegal. “It’s also important to remember that in some cases it may not be appropriate to seek fresh consent if you are unsure how you collected the contact information in the first place, and the consent would not have met the standard under our existing Data Protection Act,” he said.

Depending on how you look at this, it's either the most European of European regulation situations -- in which efforts to comply with a new set of convoluted regulations means violating existing convoluted EU regulations -- or just another example of how ridiculous companies act. Still, it does seem fairly clear that the whole GDPR situation is an utter mess, with tons of companies having no idea what they actually need to do, or how to actually comply with the law.

Whether you think the GDPR is a wonderful innovation in protecting our privacy, or you think it's a giant clusterfuck of bureaucratic virtue signaling, it does seem like it could be something of a general problem if basically every internet company everywhere has no idea how to actually be in compliance.

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Posted on Techdirt - 22 May 2018 @ 3:41pm

Copyright Being Used To Prevent Actress From Showing Her Own Demo Reel

from the fair-use-guys dept

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by "creative" I mean "wrong.") You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He's also jumped in on the whole situation created by the "Blurred Lines" mess by filing a bunch of "sounds alike" copyright cases.

It's almost as if he's filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that's about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.

In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him). She then got a copy of the film and gave it to another company to include it in her demo reel. Bain is now suing, claiming it's an "unauthorized derivative work." Indeed, the lawsuit claims that the clips in the demo reel "included a significant amount of unreleased footage from The Film, which taken together, encompassed the heart of The Film, as well as revealed the ending to The Film."

The claim that this uses "the heart" of the work is an attempt to get around a fair use claim and a reference to the famed Harper Row v. Nation Enterprises case. Looking over the fair use factors, it seems hard to see how this isn't fair use. It's clearly transformative. The use is quite different than the movie itself -- it's a small clip used to advertise the actress, not to show the film. Despite the claims of this being "the heart" of the film, it's still just clips for a demo reel, rather than the full film. And, finally the impact on the market is going to be nil. Or, if anything, it might encourage people to see the full film (unless the film sucks, of course).

Either way, I can't imagine that this is what the framers of the Constitution imagined when they were putting in place the copyright clause. How the hell does it "promote the progress of science" to have a director sue an actress for advertising her acting ability? But, as yet another example of just how ridiculous copyright law is these days, it works perfectly. So thanks Stephen Doniger for adding to the list of examples of ridiculous copyright lawsuits.

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Posted on Techdirt - 21 May 2018 @ 10:45am

Rupert Murdoch Believes In The Free Market... Until His Company Is Struggling: Then He Wants To Regulate Competitors

from the hypocrite dept

Oh, Rupert Murdoch. When we last checked in with him, he was literally begging Facebook to pay News Corp. money because (he claimed) News Corp was "enhancing the value and integrity of Facebook." We noted at the time that Murdoch -- a staunch public defender of free market capitalism and a loud opponent of "socialism" -- seemed to be a bit hypocritical in effectively demanding a corporate handout from other, more successful companies, when his own company had struggled for years to adapt to the internet.

He's not done yet. Apparently, if Facebook (and, one presumes, Google) don't want to just hand him money for nothing, he's now demanding that they be heavily regulated:

Robert Thomson, the CEO of Murdoch’s company, News Corp., took a step beyond criticism last week in an investor call, when he advocated the creation of an “algorithm review board,” which would essentially regulate the secret formulas platforms use to determine, among other things, what news is shown to which people.

What a fucking hypocrite. Just compare this to what Murdoch was saying just a few years ago about free markets, competition, regulation and s haring:

But while we’ve won the efficiency argument, we have yet to persuade people that the market does better because it is more moral — or that socialism fails because it is largely immoral in its denial of fundamental freedoms.

To the contrary, too many people think that the market succeeds because it is based on a vice — greed. And that socialism is better, because it is based on a virtue — sharing.

Naturally, they conclude from this one of two things: that the way to make capitalism more just and more humane is to temper it by injecting a large dollop of government-mandated sharing, or that, like President Obama, government is better.

Or how about this gem:

How often do you hear the same people who say they are for free trade then push for stronger anti-dumping laws, a backdoor form of protectionism?

How often do we hear the same politicians who say they believe in free markets go on to carve out a special tax credit for some industry they favor?

Oh, Rupert, why it happens all the time. Sometimes from people like yourself.

Crony capitalism is not capitalism. It’s cronyism.

Yes. So why are you trying to get your crony's to regulate your competitors who have done a much better job than you in the market?

The market succeeds because it gives people incentives to put their own wants and needs aside to address the wants and needs of others. To succeed, you have to produce something that other people are willing to pay for.

And if he fails to get people to pay for it, Rupert Murdoch will run to the government, demanding that more successful companies just pay him, and then will also advocate for heavily regulating those companies while pretending to be for the free market and against cronyism.

What’s fair about taking money from people who’ve earned it and giving it to people who didn’t?

Says the guy demanding money he didn't earn from internet companies...

In short, as we work for freer markets, we must also work to persuade our fellow citizens that we do so not simply because a free market is more efficient but because it is fair and just and right.

Yes, Rupert Murdoch believes this right up until his own companies have trouble adapting and competing. Then he goes running to government to regulate those companies who are actually succeeding.

There may be reasonable arguments for certain kinds of regulations. But Murdoch's only reason for calling for regulations of internet companies -- after whining about socialism and talking up free markets -- is pretty blatantly an attempt to whine for a handout for his own businesses that have failed to adapt to changing times.

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Posted on Techdirt - 21 May 2018 @ 9:33am

How The Recording Industry Hid Its Latest Attempt To Expand Copyright (And Why You Should Call Your Senator To Stop It)

from the bad-ideas dept

Last month, we wrote about the problems of the CLASSICS Act that the House was voting on. There's a lot of background (much of it included in that post), that is not worth repeating, but the very short version is that sound recordings from before 1972 are treated somewhat differently under copyright law than songs recorded since February of 1972. Specifically, pre-1972 sound recordings are not covered by federal copyright law, but by a weird batch of state laws. Due to a bunch of shenanigans, many of those works will not be put into the public domain until 2067, even if by any other measure they should be in the public domain. The RIAA has always liked this aspect of pre-1972 songs. However, there are other aspects of pre-1972 songs that the RIAA does not like, and that's mainly that the lack of federal copyright coverage means that those works (mostly) don't get any performance rights, since most state laws didn't have such a concept. That's money the RIAA feels is being left on the table.

One way to handle this would be to just federalize the copyright on pre-1972 works and put all works on an equal footing. Easy, right? But that's not what the CLASSICS Act does. Instead, it just modernizes the parts of copyright for those works that help extract more money from people (such as adding in performance rights) while refusing to bring with it the parts of copyright law that protect the public -- including the timeline for things moving into the public domain.

Larry Lessig has a piece over at Wired where he explains how this is really just the latest attempt at copyright extension. Earlier this year, we had noted (happily!) that it appeared that the usual crew of copyright maximalists had appeared to give in, saying they had no intention to push for any sort of copyright term extension this year, meaning that for the first time in decades in the US, some works may actually enter the public domain on January 1st next year. And while the CLASSICS Act isn't a straight-up copyright term extension, it is a form of copyright expansion on old works, done for no other purpose than to give the copyright holders more ways to extract money, without any corresponding public benefit. As Lessig notes, this is explicitly a welfare system for musicians:

That this statute has nothing to do with the constitutional purpose of “promot[ing] Progress” is clear from its very title. The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it's not just a gift through cash; it's a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.

Yet there is no registry of these owners anywhere. And while massive digital suppliers, such as Apple Music and Spotify, could probably afford to carry the burden, no public or non-profit website could even begin to bear the cost of assuring they were not committing a crime. The act doesn’t harmonize American law with international law. Indeed, it creates more disharmony. No other jurisdiction creates a similar right anywhere. The act is simply a gift, paid for by further weakening the ability of archivists to keep our culture accessible. That’s why more than 40 professors of intellectual property of all political stripes signed a letter this week asking Congress to reject the CLASSICS Act.

Now that the bill is in the Senate, EFF is asking people to contact their Senators telling them to vote no on this bill.

Now, I should note that I've seen some recording industry lobbyists mocking Lessig's piece, claiming that how could he be against supporting musicians. This, of course, is the whole setup of this bill. It's designed -- like so many copyright expansions in the past -- to make it hard for people to question, because, really, who doesn't want to support the content creators we like? But that ignores the other side of this equation. Copyright is designed to benefit the public. The whole setup is to give an exclusivity to content creators for a limited time in order to give them the incentive to create.

For EVERY SINGLE WORK that would be impacted by this bill, that incentive worked. It worked decades and decades ago. Those recordings were all created prior to 1972. So why do they now need more incentive for the works that were already created? And why, if we're giving them more incentive, does the public not get anything back in return? That's the hidden part that the lobbyists and think tank shills for the recording industry are hoping you'll ignore. The "expansion" here is at the expense of the public. And it's a big expense. For no benefit at all. The copyright system was an incentive system for creation, in the recognition that it would then help the public get access to content. But the CLASSICS Act flips that over. It takes away from the public and provides no new incentives to anyone.

Instead, it's just a welfare bill for musicians. And, hey, Congress can set up a welfare system for musicians if it wants to, but it should be described as such and debated as such. Instead, this is being positioned very differently, because of course that's how the RIAA plays things.

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Posted on Techdirt - 18 May 2018 @ 1:33pm

There Is No Magic Bullet For Moderating A Social Media Platform

from the it's-not-so-easy dept

It's kind of incredible how frequently we see people who seem to think that the fact that social media platforms are so bad at moderating the content on those platforms is because they just don't care or don't try hard enough. While it is true that these platforms can absolutely do a much better job (which we believe often involves providing the end user more tools themselves), it's still amazing at how many people think that deciding what content "belongs" and what content doesn't belong is somehow easy. Earlier this month, in Washington DC there was the Content Moderation at Scale "COMO" conference. It was a one day event in which a bunch of companies revealed (sometimes for the first time) how they go about handling questions around content moderation. It was a followup to a similar event at Santa Clara University held back in February (for which we published a bunch of the papers that came out of the event).

For the DC event, we teamed up with the Center for Democracy and Technology to produce a live game for everyone at the event to play -- turning them all into a trust & safety team, tasked with responding to "reported" content on a fictional social media platform. Emma Llanso from CDT and I ran the hour-long session, which included discussions of why people chose their decisions. The video of our session has now been posted which helpfully edits out the "thinking/discuss amongst yourselves" part of the process:

Obviously, many of the examples we chose were designed to be challenging (many based on real situations). But the process was useful and instructive. With each question there were four potential actions that the "trust & safety" team could take and on every single example at least one person chose each option. In other words, even when there was a pretty strong agreement on the course of action to take, there was still at least some disagreement.

Now, imagine (1) having to do that at scale, with hundreds, thousands, hundreds of thousands or even millions of pieces of "flagged" content showing up, (2) having to do it when you're not someone who is so interested in content moderation that you spent an entire day at a content moderation summit, and (3) having to do it quickly where there are trade-offs and consequences to each choice -- including possible legal liability -- and no matter which option you make, someone (or perhaps lots of someones) are going to get very upset.

Again, this is not to say that internet platforms shouldn't strive to do better -- they should. But one of the great things about attending both of these events is that it demonstrated how each internet platform is experimenting in very, very different ways on how to tackle these problems. Google and Facebook are trying to throw a combination of lots and lots of people plus artificial intelligence at the problem. Wikipedia and Reddit are trying to leverage their own communities to deal with these issues. Smaller platforms are taking different approaches. Some are much more proactive, others are reactive. And out of all that experimentation, even if mistakes are being made, we're finally starting to get some ideas on things that work for this community or that community (and remember, not all communities work the same way).

As I mentioned at the event, we're looking to do a lot more with this concept of getting people to understand the deeper questions involved in the tradeoffs around moderating content. Setting it up as something of a game made it both fun and educational and we'd love some feedback as we look to do more with this concept.

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Posted on Techdirt - 18 May 2018 @ 10:41am

How The Record Labels Screwed Up The Music Industry, And The Tech Industry Saved Them

from the start-thinking-about-the-customers dept

If you've been following how much the record labels stumbled around the internet for the past couple of decades, then you know the basics here. But time has a way of erasing some of the nuances of history, and I find it incredible to watch the RIAA and the record labels these days walking around proudly acting as if they were the ones who "saved" the music industry by embracing streaming services that now make up the bulk of the recording industry's revenues. Indeed, as we've pointed out for years, the recording industry has a very long history of overvaluing the music and undervaluing the services that people want. They've spent so long insisting that the music is the sole source of the value of what they produce, that they always downplay (or entirely erase) the rest of the equation: getting the music to fans in a manner that is convenient, reasonable, and non-burdensome. Instead, they always focus on killing the golden goose -- insisting that any successful music tech service pay them more and more until they're squeezed dry.

Over at Motherboard, Ernie Smith, has a good history of how the recording industry screwed up streaming in the early days (unfortunately he does what most people do and refers to what's really the "recording industry" as the "music industry" -- and also simplifies the history to be just one round of mistakes, rather than many, many mistakes leaving a graveyard of dead tech companies in its wake -- but the overall article is still excellent). It's a very instructive piece in detailing exactly how the record label bosses were so focused on making sure that they had control and limits, that they didn't care at all about providing a service that people actually wanted. Much of it focuses on the two idiotic music label-approved streaming services that the industry tried to launch MusicNet and PressPlay (which we dubbed MusicNot and PressPause way back in 2001). Smith details how both services were built entirely focused on "how do we protect our revenue stream" rather than "how do we serve the customer." Thus, you had lots of DRM and lots of stupid limits:

Their offerings were slightly different—for a $9.95-per-month fee MusicNet allowed for 100 temporary downloads and 100 on-demand streams at launch, according to Billboard, while Pressplay allowed for 300 streams and 30 downloads and offered limited CD-burning capabilities at higher price points—but the tissue tying the two approaches together was DRM.

It certainly wasn’t music, as the services made no effort to collaborate with one another. In the post-Napster era, the combination of limited libraries and competition from peer-to-peer file sharing services put the companies at a major disadvantage.

Incredibly, inside the industry, executives so believed their own bullshit that they really thought these consumer-unfriendly services would win over piracy:

Stephen Witt, in his 2015 book How Music Got Free, portrayed Universal Music’s then-CEO, Doug Morris, as being overly excited about PressPlay, to the point where Recording Industry Association of America President Hilary Rosen, frequently portrayed as an “enemy combatant” of the Napster era during this time, had a hard time talking him off the ledge. (Rosen, it should be said, was simply sharing the company line because it was her job.)

“On several occasions he told Rosen to stop talking to Napster, to stop negotiating with the Fannings, to stop worrying so much, because he had something that would ‘make it all go away,’” Witt wrote. “In later years, PressPlay would be a reliable starting point for listicles of the ‘Top All-Time Tech Busts.’”

If you don't remember Doug Morris, he was the guy who, back in 2007, gave a stunning interview where he insisted that the reason why the labels missed the boat on the internet was... because they didn't know anyone who understood technology and then blatantly admitted that he didn't know how to hire someone who would have understood technology. To me, that seemed like evidence for why the board should have fired him and brought in someone who actually understood the market. For Morris it just meant he remained a revered leader of the recording industry.

But really the thing that screams out through Smith's piece is the same old thing: the record labels seem to believe that the only thing that matters -- the only thing that provides any value at all -- is the music (which, coincidentally, is the one thing they have some element of control over thanks to copyright). And thus, the idea that the technology or service matters, or that making a service that people actually want is considered barely even worth considering.

Indeed, reading through the article, it basically shows how the tech industry -- in the form of Apple and Spotify -- more or less rescued the recording industry from their own incompetence. And the incredible thing today is that the record labels still whine and complain that the tech industry that saved them is "taking advantage" of them, rather than showing them the way forward.

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Posted on Techdirt - 17 May 2018 @ 9:18am

Copyright Once Again Hiding Important Cultural Artifacts

from the copyright-getting-in-the-way-again dept

Last week on NPR's Fresh Air, I first heard about the publication of the book Barracoon, which sounds fascinating -- as is the backstory behind the book. The book was actually written in 1931, based on interviews anthropologist Zora Neale Hurston did with then 86-year-old Cudjo Lewis, then the last known living person to have been brought to America from Africa on a slave ship. In the Fresh Air piece, Maureen Corrigan described the decades long delay in publishing the book this way:

Hurston's manuscript has a complicated backstory, but the gist is that the book generated little interest back then from publishers. Only Viking Press was willing to publish it with the stipulation that Hurston change Cudjo's voice, transforming his dialect speech into the King's English. Hurston refused and Barracoon languished, known only to scholars until now.

However, over at the Washington Post, Ted Genoways tells a more detailed story that pins the lack of publication on a key factor of copyright law blocking the publication. It turns out that Genoways had come across this work decades ago and tried to get it published back then. But... copyright got in the way. Specifically, he was unable to establish clearly whether or not the work was in the public domain.

The typescript was thin, just over a hundred pages, with a few emendations and additions in Hurston’s handwriting, but it seemed complete and worthy of note. I looked into getting it published — but the rights to the work were unclear. Had the writing been conducted as part of Hurston’s fieldwork for the Federal Writers’ Project — making it a government work-for-hire and public domain? Or was it a separate literary work controlled by her estate? No one seemed to know, and no one was too interested in finding out. Unable to get answers, I eventually gave up on the effort.

As Genoways notes, under any reasonable copyright regime -- including the copyright regime that was in place at the time Hurston wrote the book -- the book should have gone into the public domain long ago. But, of course, as we've detailed many times over the years, rather than enable that culture to reach the masses, Disney had to protect its mouse (which, as Larry Lessig detailed years ago, Disney created by borrowing heavily from copyright-protected works).

It’s mostly due to the Walt Disney Co.’s efforts to protect ownership of a certain cartoon mouse. Over the years, the company has successfully worked to extend copyright restrictions far beyond the limits ever intended by the original authors of America’s intellectual property laws. Under the original Copyright Act of 1790, a work could be protected for 14 years, renewable for another 14-year term if the work’s author was still alive. In time, the maximum copyright grew from 28 years to 56 years and then to 75 years. In 1998, Sonny Bono championed an extension that would protect works created after 1978 for 70 years after the death of the author and the copyright of works created after 1922 to as long as 120 years.

As Genoways notes, it's surely no coincidence that the focus on Sonny Bono's copyright extension was to cover works created after 1922. The Walt Disney company was founded in 1923. However, as he notes, this is preventing all sorts of cultural works from reaching the public:

Here, Hurston is the rule rather than the exception. I have a file that I’ve kept over the years of significant unpublished works by well-known writers from the era: William Faulkner, Langston Hughes, William Carlos Williams, Hart Crane, Sherwood Anderson and Weldon Kees, among others. The works aren’t really “lost,” of course, but they are tied up in a legal limbo. Because of the literary reputations of those writers, their unpublished works will eventually see the light of day — whenever their heirs decide that the royalties are spreading a little too thin and there’s money to be made from new works. But other important writers who are little-known or unknown will remain so because they don’t have easily identifiable heirs — or, worse, because self-interested, or even uninterested executors, control their estates.

He also goes into detail on the works of the poet Lola Ridge, whose work was celebrated, but much of it kept from publication. Some works fell into the public domain and were re-released, but there are still multiple volumes tied up by copyright that cannot be released.

And lest you think this is a small problem, I'll point again to the research of Paul Heald, who has documented the giant hole in our culture created by lengthy copyright terms. Public domain works published prior to 1923 are available. Works in the last few years tends to remain available. Works from the many, many, many decades in between? Not so much:

Every time I see that image again, I am dismayed about what it says about our culture, and how little supporters of our existing copyright system seem to care about what copyright is doing to our culture. Supporters of the existing system regularly exclaim how they are the ones who support culture and creators with their views on extensive copyright protections, yet they run away and hide when people point out things like this, where copyright gets in the way of culture, locks it up and (unfortunately) sometimes throws away the key completely. As Genoways concludes:

Copyright laws rewritten by major corporations to preserve income from nearly century-old creations have all but erased a generation of less famous writers and unknown works by well-known writers. It is an effect that extends the life span of biases that have long silenced female writers, minority writers and working-class writers. “Barracoon,” to return to the original example, was rejected for publication in 1931, because it was deemed too vernacular by Hurston’s editor. Current copyright law unintentionally conspired to unnaturally extend the duration of that wrongheaded judgment for decades. That is why I bridle at the description of works like “Barracoon” as “lost.” They are not lost — they have always been here — but they have repeatedly encountered power structures that block their publication. It’s time for that to change.

Copyright is -- according to our Constitution -- "to promote the progress of science." It is difficult to see how locking up a book like Barracoon for all these decades could possibly be seen as accomplishing that purpose.

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Posted on Techdirt - 16 May 2018 @ 4:02pm

As Intermediary Liability Is Under Attack, Stanford Releases Updated Tool To Document The State Of Play Globally

from the useful-stuff dept

We've spent many years talking about the issue of intermediary liability on the internet. While the term is one that nearly everyone agrees sounds boring as anything, it's incredibly important in protecting your rights to express yourself online. The key issue is who is liable for speech that is posted online. The common sense reaction should be that "the speaker" is responsible for any speech they make online. However, for reasons I still don't full comprehend, many, many, many people would prefer that the site hosting the speech should be liable. In many cases, this might not seem to matter. But it can actually matter quite a bit for absolutely everyone. While most speech is perfectly legal, there remain some exceptions (including copyright, defamation, true threats and more).

And while some people think that those exceptions are narrow enough that pinning liability on websites shouldn't be a big deal, that's not true in practice. Because if you say that the website (the intermediary or platform) is liable for the speech, then merely making an accusation of illegality in the speech has a high likelihood of censorship of protected speech. That's because most platforms will take down speech that is reported in an attempt to avoid potentially crippling legal liability. Indeed, in many cases, platforms are then pressured (either by law or threat of laws or legal action) to pre-filter or moderate certain content just to avoid even the possibility of legal liability.

And because of that, lots of perfectly legitimate, protected speech gets blocked and censored. Much of this is abusive. Because once you've supplied a tool that allows someone to flag certain content for censorship, that tool gets used, even if the content doesn't really qualify, and the internet platform is heavily incentivized to remove that content to avoid liability.

That's why this matters so much. That's why we're so concerned at attempts to chip away at intermediary liability protections in the US, such as the immunity clause under CDA 230 or the safe harbor clause under the DMCA 512. But the US is, of course, just one country of hundreds. And lots of other countries have their own (frequently changing) laws on intermediary liability. For years Stanford's Center for Internet and Society has hosted a World Intermediary Liability Map, and that map has just been updated. This is an incredibly thorough and useful tool in understanding how these laws play out in other countries, how they differ and even the impact of how they work.

With the updated version, you can also drill down on topic pages around specific types of liability regimes, such as looking at how the Right to be Forgotten has been spreading around the globe, or look at how intermediary liability is handled around the globe for copyright or look at the monitoring obligations imposed by various laws.

For those of us who continue to believe that proper intermediary liability laws are key to a functioning internet and freedom of expression online, this is a fantastic tool -- only slightly marred by the fact that so many of the developments concerning intermediary liability (including here in the US) have been around successful attempts at chipping away from those principles, leading inevitably to greater censorship.

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Posted on Techdirt - 16 May 2018 @ 7:36am

Less Than One Week To Back Our Kickstarter For The CIA's Card Game; Also Reddit AMA Today

from the collect-it-all dept

So, we're now less than a week away from the close of our Kickstarter campaign for our version of the CIA's recently declassified training card game, which we've dubbed: CIA: Collect It All.

CIA: Collect It All on Kickstarter

We've been working hard on our version of the game, filling in redacted cards, testing and tweaking certain variations and playtesting, playtesting, playtesting. The game is quite a bit of fun -- which is not something I'm used to saying about something the CIA initially created. The campaign ends next Tuesday, and we don't currently have any plans to print the game after we do this one big run, so if you're on the fence about it, now would be a good time to lean towards supporting it.

CIA: Collect It All on Kickstarter

Since a bunch of people have had questions about the game, we thought it would be good to go on Reddit and do an AMA about the game. The three of us who have been working on the game -- myself and Leigh Beadon from Techdirt, and Randy Lubin from Diegetic Games -- will all be hanging out on Reddit doing the AMA starting at about 10am PT / 1pm ET today. I'll update this post with the link once it's live, but you should just be able to hit up the /r/IAmA/ subreddit and find it. That'll be the best place to have a discussion about the game, gameplay, design choices and the like (though we'll also answer questions here or on Kickstarter). So stop by and ask some questions and find out what it feels like to play the CIA's own card game. Update: Here's the link to the AMA.

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Posted on Techdirt - 15 May 2018 @ 3:36pm

It's Over: The Podcast Patent Troll's Patent is Officially And Completely Dead

from the podcast-away,-folks dept

Going back many years now we've written about the company Personal Audio, which built itself up as a patent troll for digital audio. Back in 2011, it won a patent lawsuit against Apple over patents on playlists. In 2013, as podcasting was starting to take off, Personal Audio decided that one of its other patents actually covered podcasting as well and sued some top podcasters while threatening many others. EFF stepped in to use the valuable inter partes review process to seek to invalidate the patent, which worked. Though, in the process the company sought to intimidate EFF donors.

While all of this was happening, the company also realized that podcasters don't make any money, and figured out how to dump its lawsuits against individual podcasters... while still going after large companies like CBS.

After the Patent Office's appeals board (PTAB) invalidated the patent, Personal Audio went to court to overturn the ruling. Last year, an appeals court rejected that attempt, noting that the PTAB was correct in invalidating the patent. Personal Audio still kept fighting, and asked the Supreme Court to hear it's appeal.

Thankfully, on Monday, the Supreme Court denied that request, meaning that Personal Audio's podcasting patent is finally, truly and completely, dead.

Still, the fact that this process took about five years and a ton of time in court should demonstrate just what a drag bogus patents can be on the economy and innovation. It also shows just how valuable a bogus patent can be for the trolls that hold them. Even after Personal Audio realized that all the podcasters it was trying to shakedown had little money to hand out, it still fought to the bitter end in trying to keep the patent alive, knowing that it could successfully get larger media companies to pay up. So this is a victory, but also a demonstration of just how broken the patent system is. Personal Audio did nothing to help podcasts become a thing. It did nothing to help podcasts move forward or become popular. Its only contribution to the podcast world was to wreak havoc on a bunch of podcasters, scaring many of them and costing them a ton of money in legal fees. That's all a dead weight loss to the economy, that could have gone into making more and better content.

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Posted on Free Speech - 15 May 2018 @ 11:54am

Stormy Daniels' Lawyer Sends Totally Bogus, Censorial Defamation Threat To Reporter He Doesn't Like

from the not-how-it-works,-jackass dept

No matter what you might think of the various legal fights involving Stormy Daniels, her lawyer, Michael Avenatti, is making quite a name for himself over the past couple of months -- partly for his legal strategy, partly for breaking news about Michael Cohen and Donald Trump, and partly for constantly appearing on TV at what appears to be every possible opportunity. Even if you happen to support his dogged focus on calling out Cohen and Trump, it is worth noting that Avenatti seems to fall into the camp of a few other lawyers in filing and threatening completely bogus defamation threats trying to silence people. Last month, there was some news when Daniels, represented by Avenatti, sued Donald Trump for defamation over a tweet of Trump's.

I could probably write 90,000 words just to give you a basic background of how we got here, but assuming you follow at least some of the news around this, the short version is that Daniels claimed on 60 Minutes that a few years back she was threatened in a parking lot by a man who told her to leave Trump alone. There was some dispute about the veracity of this claim, and Daniels eventually had a sketch artist draw what the guy looked like, leading Trump to then tweet: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels sued over this tweet, calling it defamatory.

As First Amendment lawyer Ken "Popehat" White notes, this is a "very weak" case, and there are a whole bunch of reasons why Trump is likely to get it dismissed -- including that previous courts have ruled that Trump's tweets can't be taken literally, and a fairly strong argument that Trump's tweets are opinions based on disclosed facts, rather than false factual statements themselves (not to mention the high bar needed to show that Trump's tweets involved knowledge of falsity or reckless disregard for the truth -- while Trump may, in general, have a reckless disregard for the truth, that's not going to meet the legal standard for a defamation case). First Amendment lawyer Marc Randazza went, shall we say, a bit further in suggesting that Avenatti's lawsuit was a bad idea. You can read that entire link on why the lawsuit may backfire on Daniels/Avenatti, or it can be summed up in the following tweet from Randazza:

If you can't read that, it's Randazza responding to Avenatti's tweet about the filing of the lawsuit with the following (*cough*) professional assessment:

You must be mentally impaired to have filed this stupid shit. I hope your malpractice insurance is paid up, Trump will be able to invoke the Texas anti-slap law against your client (last I checked she was a Texas resident). See Adelson v. Harris; Tobinick v. Novella.

Anyway, whatever happens with that case, it does not seem to have resulted in Avenatti becoming any more clued in on not abusing defamation law. Earlier this week he sent an angry defamation threat email to reporter Peter Hasson from the Daily Caller:

If you can't read that, it says:

Off the Record.

Let me be clear. If you and your colleagues do not stop with the hit pieces that are full of lies and defamatory statements, I will have no choice but to sue each of you and your publication for defamation. During that process, we will expose your publication for what it truly is. We will also recover significant damages against each of you that participated personally. So if I were you, I would tell Mr. Trump to find someone else to fabricate things about me.

If you think I'm kidding, you really don't know anything about me. This is the last warning.

All rights are expressly reserved.

Michael

So, first off, that's not how "Off the Record" works. You don't get to just chant it like an incantation and reporters have to abide by it. It is a negotiation, where you first must ask a reporter if they'll accept your statement off the record, and then it's established that it is (and, even then, some journalists will still choose to burn sources who give off the record statements, though at a potential cost of no longer getting quotes in the future). Even more bizarre is that, even after this, Avenatti appears to believe that him merely stating "off the record" carries some sort of magical requirements which don't actually exist:

“I sent an email off the record. It should remain off the record. It speaks for itself,” Avenatti told TheWrap on Monday.

Yeah, it speaks for itself that a press-hungry lawyer doesn't understand how "Off the Record" actually works.

But, more importantly, threatening journalists for reporting on you is... bad. I'm no fan of the Daily Caller myself, and think it's a hack publication that publishes misleading, fear mongering, junk, often to prop up our dunderhead of a President, but that doesn't mean it's defamatory.

The fact that Avenatti cites no actual false statement of fact, and is just screaming about generalities, tends to be the sign of someone looking to censor the press, rather than someone who has a legitimate defamation claim. Also, given that Avenatti's silly threat came just after the Daily Caller published an article about him, the email also serves as something of a Streisand Effect calling more attention to what the Daily Caller had to say.

Even worse, Avenatti went on TV (natch) to defend his bogus defamation threat, because (he claims) not all journalists are ethical:

“All journalists are not ethical, just because they’re a journalist. There’s good journalists and there’s bad journalists. There’s ethical journalists and unethical journalists,” said Avenatti on the Monday evening show.

“If we encounter journalists that don’t get their facts straight by design, don’t follow the basic rules of journalism, purposely skew stories to fit their own political dialogue of what they want the message to be, we’re going to continue to call them out on that. And there’s nothing wrong with that.”

Well, first, it's true that not all journalists are ethical. And it's true that there's "nothing wrong" with "calling out" journalists who you feel don't follow the basic rules of journalism. But "calling out" is not the same as "threatening with entirely bogus defamation lawsuits." And there's a pretty big difference there.

We've covered this ground for many years. People get annoyed or upset about lots of things said about them -- and sometimes that stuff appears in publications with large audiences (or small audiences). Threatening to sue people for defamation just because they said something you don't like is bad. It's abusive and censorial and bullying. If anything deserves being "called out" it's lawyers abusing defamation law or threats under defamation law to seek to intimidate reporters, no matter how ethical or unethical those reporters might be. If Avenatti believes that the Daily Caller's reporting on him is bogus, then respond to it and explain why it's bogus. Responding with a bullshit censorial threat, without any explanation of why the site's reporting is in error, suggests anger at being criticized, rather than any sort of legitimate complaint.

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Posted on Techdirt - 14 May 2018 @ 6:25am

Police Realizing That SESTA/FOSTA Made Their Jobs Harder; Sex Traffickers Realizing It's Made Their Job Easier

from the who-could-have-predicted dept

For many months in the discussion over FOSTA/SESTA, some of us tried to explain how problematic the bills were. Much of the focus of those discussions were about the negative impact it would have on free speech on the internet, as the way the bill was drafted would encourage greater censorship and more speech-chilling lawsuits. But as we heard from more and more people, we also realized just how incredibly damaging the bill was going to be to those it was ostensibly designed to protect. Beyond the fact that it was passed based on completely fictional claims about the size of the problem, those who actually were victims of sex trafficking began explaining -- in fairly stark terms -- how SESTA/FOSTA would put them in greater danger and almost certainly lead to deaths.

While supporters of the bill seem to insist that because the bill puts legal liability on platforms that are used for sex trafficking that it will magically make sex trafficking disappear, the reality is more complex. While we can argue about Backpage's complicity in what happened on its platform, for years it was used as a tool to protect sex workers, giving them more control over their lives and who they worked with. As we've pointed in the past, a recent study found that Craigslist, back when it had its "erotic services" section, appeared to decrease female homicide rates by an astounding 17.4%. Backpage picked up the slack when Craigslist was bullied into closing that section, but now it's gone too.

And stories are already coming in about the damage done. A recent episode of the Reply All podcast all about SESTA/FOSTA had some scary stats at the end, noting that there are already many stories of sex workers who have gone missing or been killed since the bill became law.

Motherboard has a story with much more details, noting that the passing of SESTA/FOSTA has emboldened pimps to take advantage of more victims of sex trafficking. As many sex workers had explained, Backpage actually allowed them to have more control themselves, and helped them get away from pimps. But without Backpage?

“Pimps seem to be coming out of the woodwork since this all happened,” Laura LeMoon, a sex trafficking survivor, writer, and co-founder and director of harm reduction nonprofit Safe Night Access Project Seattle, told me in an email. “They’re taking advantage of the situation sex workers are in. This is why I say FOSTA/SESTA have actually increased trafficking. I’ve had pimps contacting me. They’re leeches. They make money off of [sex workers’] misfortune.”

The Verge also has an excellent deep dive into how SESTA/FOSTA has put more women's lives at risk.

What about the claims that SESTA/FOSTA would help law enforcement (many of whom pushed for the law)? Yeah, about that: police are now realizing that it's more difficult for them to find sex traffickers without Backpage. I mean, it's not like people were explaining this a decade ago.

Meanwhile, given how many SETSA/FOSTA supporters insisted that the bill was necessary to prevent the sex trafficking scourge, you'd think that sex trafficking prosecutions and arrests would show an upswing, right? Instead, we see things like how a special court in Delaware set up specifically to focus on dealing with sex trafficking cases is shutting down due to the lack of actual sex trafficking victims. The reason the court was shut down according to the judge who shut it down?

... there was "little evidence to suggest the defendants of this court are the subjects" of sex-trafficking enterprises.

So, I'm still wondering why all of the supporters of SESTA/FOSTA seem to have disappeared off the face of the earth in the last couple months as all of this has happened. Can one of them step forward and actually defend what they've done as the evidence is showing they're literally getting people killed and making it more difficult to stop sex trafficking?

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Posted on Techdirt - 11 May 2018 @ 9:30am

When In Doubt, Blame Terrorists: Patent Attorney Claims Terrorists Are Infringing And Killing Jobs

from the oh-really-now? dept

For many years now we've had fun pointing out the ridiculous claims of the legacy copyright industry execs insisting that copyright infringement funds terrorism. Of course, the evidence for this was seriously lacking. Back in 2011 there was an incredibly detailed, evidence-rich debunking of the claim by Joe Karaganis, showing basically no connection between terrorism and infringement.

But, alas, it's a topic that never seems to go away. And now it appears that a design patent lawyer has updated the talking points to now claim that terrorists are infringing on design patents to fund their terroristic activity. First, as a quick refresher: when we talk about patents, we're usually talking about utility patents, which are a monopoly for a new invention or process. Design patents, on the other hand, are really more akin to trademarks, in that they grant a monopoly on the look of something. The idea that ISIS is out there infringing on, say, the look of someone's fancy belt buckle or a new planter is just sort of ludicrous on its face. But it certainly didn't stop big shot patent lawyer Robert Katz from making the claim at a recent event held by the US Patent and Trademark Office (who, really, should know better).

The event was the USPTO's "Design Day" held a few weeks ago, in which there were a series of discussions on design patents and such. If you go to the Livestream of the event, about an hour in Katz starts out by playing up how crafty infringers are getting, saying that they're getting smarter about how they avoid getting caught:

This is followed up by the other favorite concept that the copyright folks loved to use for years: totally and completely bogus numbers about losses of money and jobs. Notice, first that the "losses" in money lumps in all kinds of infringement, and almost certainly counts every infringement as a lost sale, even though that's clearly not the case. And job loss reports like this have been debunked so many times that it's almost embarrassing that anyone still uses those claims.

Katz goes one better in talking about how "dangerous" products were introduced into the market, he gets to claim that knockoff makeup products were causing people to break out in rashes because they had "feces" in them. Indeed, there was just a seizure by the LAPD of some supposedly counterfeit makeup products, and the whole "feces" claim made a bunch of headlines (though, it's odd that half the stories call it "animal waste" and the other half call it "human feces.") There don't seem to be many details beyond a tweet from the LAPD -- an organization never known for exaggerating anything or making statements that are inaccurate.

He also claims that sex traffickers are using infringement to fund their efforts (I thought they were using the trafficking to fund it, but... who knows?) But that's just the lead in to the really nutty claim. It all comes back to... TERRORISM!

If you can't see that, the slide notes that infringers are "tied to terrorism" and he provides three "real life examples." From the slide:

  • Charlie Hebdo shootings: There's a direct link between counterfeits and terrorism... "The sale of counterfeit goods went into buying these guns."
  • 2004 Madrid train bombings: Terrorists sold counterfeit CDs to support their activities.
  • 1993 World Trade Center bombing: Terrorists raising money by selling counterfeit goods.
Let's leave aside that if this is such a big deal, why do we need to go back a quarter of a century to find three examples (and almost 15 years just to find a second example). Even the supposedly recent claim of the Charlie Hebdo attacks being a "direct" result of counterfeit sales is pretty suspect. You can find lots of headlines claiming this, but when you dig deep into the examples, no one provides any evidence. It's often cited by a trade group advocating for cracking down on counterfeits. After reading through many, many reports, the earliest reporting I can find on the claims about the Charlie Hebdo attackers relying on counterfeits comes from the LA Times story about intelligence lapses that allowed the attackers to go unnoticed. It mentions, in passing, that after getting out of jail for an earlier run-in with the law over possible terrorism, one of the attackers "seemed to be moving into less sinister pursuits, reportedly including trafficking in counterfeit clothing and shoes."

That report also suggests that this counterfeiting activity had basically nothing to do with buying the weapons for the Charlie Hebdo attack. Instead, you get:

U.S. intelligence officials have confirmed that at least one of the brothers traveled to Yemen in summer 2011, received training from Al Qaeda in the Arabian Peninsula and returned with about $20,000 in cash provided by the terrorist group. News reports have indicated that both brothers may have ventured to Yemen.

Right. So, which is it. One of the attackers selling some counterfeit shoes... or getting trained by Al Qaeda and being handed $20,000. I think the latter seems just a bit more likely.

But not to design patent lawyers like Katz. He concludes this slide by saying with a totally straight face:

"It's not like it's something where people just got a little too close. Most of the time, when people are using design patents, it's to stop activities like this."

Whaaaaaaaaaaaat? Most of the time that people are using design patents, it's to stop terrorist attacks like this? What the hell is Katz saying?

No one is saying that counterfeiting of whatever things that are covered by design patents is okay -- though reports by both the GAO and the OECD have shown that claims of losses due to counterfeiting are highly exaggerated, and that in many cases there's little to no real harm, as buyers know they're buying counterfeit products, and it's an aspirational purchase (i.e., they can't afford the authentic version). Other reports have shown that those who buy counterfeits often by the real version when they can afford it.

But, nope. According to Katz, "most of the time" design patents need to be used to stop terrorists such as those involved in the Charlie Hebdo shootings (never mind the cash from Al Qaeda).

I don't know if people like Katz think the points he's spewing are accurate. He might. But if that's true, it just goes to show how silly confirmation bias can become. Design patents aren't protecting anyone against terrorism, let alone "most of the time." Saying things like that don't show how important design patents are. They show how silly people get when they get all wrapped up in artificial monopolies.

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Posted on Techdirt - 10 May 2018 @ 7:52pm

As NAFTA Negotiations Finish Up, Hopefully The USTR Remembers That The Internet Has Been Good For Creators Too

from the that-would-be-good dept

Over at MorningConsult I have an op-ed piece I co-wrote with Rachel Wolbers from Engine talking about why the continued attempt by Hollywood to portray debates over intermediary liability protections and fair use as being "tech" v. "creators" is completely misguided. As we've noted, Hollywood has used this framing to try to use the NAFTA renegotiations as a backdoor way to adjust US policy both here and in Canada and Mexico. And the end result would harm not just the internet but most creators who rely on the internet to create, promote, connect with fans, and to make money.

If Congress and the courts have established a framework that has led to unprecedented growth of content creation and a booming technology industry, why would NAFTA negotiators weaken these rules through international trade agreements? Unfortunately, legacy copyright gatekeepers, such as the Motion Picture Association of America and the Recording Industry Association of America, are using their outsized influence in Washington to undermine internet safe harbors and rewrite copyright law to protect their bottom line. To do this, they are unfairly trying to pit content creators against the tech community. That argument may resonate inside the Beltway, but outside D.C., small tech companies and independent content creators work hand-in-hand to promote innovation and creativity.

Startups and artists frequently work together to launch new platforms that help creators collaborate, share, distribute, promote, and monetize their content. And that makes sense because startups and artists know they must constantly hustle to grow their respective customer bases and attract investments and a following. To do this effectively, both groups need access to foreign markets so that they can scale. But they also need a legal framework that lets innovators pursue the same business models abroad that they do at home. And while Canada and Mexico remain the largest markets for U.S. startup exports, the internet has exponentially expanded the growth potential of entrepreneurs and artists alike. This trend will only continue if we continue to have a clear legal framework guiding how content can be shared.

There's a lot more in the piece, so go check it out. And, as a reminder, we're still collecting stories of how you use the internet to create over at our site EveryoneCreates.org.

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Posted on Techdirt - 10 May 2018 @ 1:35pm

Venture Beat Reporter Abuses DMCA To Silence A Critic

from the it's-about-ethics-in-dmca-takedowns dept

Remember when people kept insisting that the DMCA was never used for censorship? Yeah, about that. Last week, we were alerted to how a reporter from VentureBeat/Gamesbeat by the name of Jeffrey Grubb had sent a DMCA notice for screenshots on a tweet by Jake Magee, who tweets under the account PhoxelHQ. Magee had taken a few screenshots of an article by Grubb and put up a tweet criticizing it. This is quintessential fair use, whether or not you agreed with Magee.

Apparently Grubb wasn't thrilled about Magee adding some commentary to Grubb's game review, and did what any reasonable adult would do: run to the DMCA to shut up a critic:

I have a bunch of concerns about this -- starting with the fact that unless VentureBeat gives its staffers their own copyrights, this is quite likely copyfraud, as the copyright would likely belong to VentureBeat, and Grubb is falsely claiming to be the copyright holder. I emailed VentureBeat to ask them who holds the copyright on its articles -- the company or the journalists -- and got no response. Ditto for my emailed question about whether or not they had any further comment on the situation.

Grubb's response to all of this has been... bizarre to say the least. He first claimed that he filed the DMCA notice because the screenshots reproduced the article in full. But when Magee pointed out it was actually around 30% of the article, Grubb apologized but only for using the word "entire", and not for the fraudulent DMCA filing. Separately, Grubb has repeatedly claimed he wouldn't have sent the DMCA notice if Magee had provided a link to the original article.

While providing a link might have been nice and courteous, it is, in no way, required. The whole point of fair use is that it is, by it's very nature, permissionless. If you needed permission, that would mean you need a license, and that by definition would mean it's not fair use. The conditions on fair use are set by the law and not by the copyright holder. If the conditions were set by the copyright holder, there wouldn't be any fair use at all (and, again, it's not even clear that Grubb is the copyright holder here!).

What's striking about the Twitter discussion back and forth between Grubb and Magee is just how much it's clear that Grubb couldn't care less that he abused the law to silence someone. He makes repeated flippant and jokey comments about Magee and Magee's supporters, and his only apology was for falsely claiming that Magee posted the entire article.

If section 512(f) of the Copyright Act had any actual force, Grubb might actually be in some legal hot water for filing a bogus DMCA notice. Lucky for him, the courts have mostly rendered it entirely toothless. Still, it remains incredible how many people see the DMCA as a "censor this thing I don't like" tool. Copyright is a tool for censorship, and you can argue that some of that censorship is completely reasonable and okay. But as a tool for censorship it is quite frequently abused. And this is just one more example. That it's being done by a journalist for a well known publication is that much more troubling.

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Posted on Techdirt - 10 May 2018 @ 9:36am

The More Copyright Holders Move Up The Stack, The More They Put Everyone At Risk

from the taking-down-security-certs-is-bad dept

A little over a year ago, Matt Holt, who created the Caddy Server that helps make it easier to protect websites with HTTPS encryption, posted a hypothetical blog post, from the year 2022, in which he worried that enterprising and persistent copyright lawyers would have continued moving up the stack with their DMCA notices, and started to use the process to get HTTPS security certificates removed.

A lawyer need only be successful in convincing one of those four “choke points” by threatening legal action in order to suffocate the site. (There are others, like ISPs, which operate more generally, and we skip them for brevity.) These entities totally control the site’s availability, which is one crucial dimension of secure systems. Here they are again:

  • Site owner. He or she can voluntarily remove the site/content.
  • Web host. They can destroy the site owner’s account or files.
  • Domain registrar. They can cancel or transfer ownership of the domain name.
  • DNS provider. They can make the site inaccessible via hostname.

Now that it’s 2022, a site needs HTTPS in order to be trusted by browsers. At very least, this means they show an indicator above the page. Maybe it even means the browser shows a warning before navigating to the site. Either way, HTTPS is critical to a site’s availability and integrity.

DMCA lawyers are clever, and they realize this emerging trend. They contact a site’s CA and demand the site be disconnected for violating the law (despite lack of a court case). The CA, operating without policy for such requests and afraid of legal ramifications, revokes the site’s certificate.

Within hours, browsers begin to refuse connecting to the site on port 443 and warning flags fly instead, scaring users away. Browsers don’t revert to port 80 anymore because HTTPS is expected and using HTTP is effectively a downgrade attack. Visitors aren’t sure what to do, and the site goes offline around the globe.

We've raised some questions in the past about this process of copyright holders moving up the stack -- and not just targeting the content hosts, but companies further upstream, including ad providers, domain registers and registrars, and the like. There are serious issues with each of these, but going after security certificates seems especially pernicious.

But Matt was a bit off in his predicted timing on this. After his article ran, we learned of at least a few examples of copyright holders going after security certificate providers. Take for example this copyright notice that was sent to Squarespace (the host), Tucows (the domain register), and Let's Encrypt (the security certificate provider).

And now TorrentFreak notes that Comodo has revoked Sci-Hub's HTTPS certificate.

“In response to a court order against Sci-Hub, Comodo CA has revoked four certificates for the site,” Jonathan Skinner, Director, Global Channel Programs at Comodo CA informed TorrentFreak.

“By policy Comodo CA obeys court orders and the law to the full extent of its ability.”

Comodo refused to confirm any additional details, including whether these revocations were anything to do with the current ACS injunction. However, Susan R. Morrissey, Director of Communications at ACS, told TorrentFreak that the revocations were indeed part of ACS’ legal action against Sci-Hub.

“[T]he action is related to our continuing efforts to protect ACS’ intellectual property,” Morrissey confirmed.

We've obviously covered a lot about the Sci-hub story over the years, and the weird quixotic focus by some to take down a site focused on (of all things) better sharing academic knowledge (especially to academics in the developing world). It's already sickening enough the level to which some copyright holders have gone to effectively shut down a library, but going after the security certificate is beyond the pale.

The DMCA allows for approaching a variety of different intermediaries, from network communications, to hosts, to caching, to "information location tools" (i.e. search engines), but I have a very difficult time seeing how any of that applies to security certificate providers (or, for that matter, to domain registers).

Even more bizarre is that going after the security certificate doesn't stop any actual infringement -- it just makes users a lot less safe. And yet, it's coming from the very same copyright holders who keep trying to tell people they shouldn't pirate content because it exposes them to malware and viruses and dangerous computers and the like. But removing security certificates would make that a much more serious problem. And yet, here we have a case where ACS went after a security certificate, a judge okayed it, and Comodo played along. That's dangerous for the way the internet works and is kept secure. If they want to go after the hosts, go after the hosts. Destroying the ability to protect users by encrypting the traffic is just evil.

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