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

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Posted on Techdirt - 19 January 2018 @ 1:32pm

The Constant Pressure For YouTube To Police 'Bad' Content Means That It's Becoming A Gatekeeper

from the this-is-unfortunate dept

For many, many years we've talked about how people were wrong to say that the internet "cut out middlemen" because there are still plenty of middlemen around. Instead, what was important was that the type of middlemen were changing. Specifically, we were moving from an age of gatekeepers to an age of enablers. And the difference here is profound. Gatekeepers keep out most people who want to use their platforms. Think: record labels or movie studios. Most people who wanted to become musicians just a couple of decades ago were not able to. Record labels would not sign them, and without a recording deal, your chance of making any money was just about nil. A few people were signed, a very few of those that signed would make lots of money, the rest would make a little money, and everyone who didn't sign would make basically nothing. The "curve" of how much money people made trying to become musicians was not very smooth. You had a few at the top end, and a giant cliff down to basically zero if you couldn't get past the gatekeeper.

But the internet changed that in a massive way. Anyone could start using the various internet platforms to release their content, to build an audience, and to make some money. There remain complaints from some that the amount most users make isn't very much, but that ignores that under the previous gatekeeper system, that amount was almost certainly zero for the vast majority of people who wished to make money from their creative endeavors. With various internet services -- Kickstarter, Patreon, Spotify, YouTube, etc. -- artists could at least make more than zero.

There has been some fear that yesterday's enablers would turn into tomorrow's gatekeepers. Unfortunately, one of the most disturbing aspects of what's happening with the internet these days is that more and more people seem to be pressuring these enabling services to become gatekeepers and to lock out smaller creators, out of this new fear that some people shouldn't be allowed to use these platforms to make any money at all.

Case in point: YouTube has recently announced new rules around creator monetization, which basically say you need to be pretty popular before you can become a partner who can monetize your videos.

After careful consideration and extended conversations with advertisers and creators, we’re making big changes to the process that determines which channels can run ads on YouTube. Previously, channels had to reach 10,000 total views to be eligible for the YouTube Partner Program (YPP). It’s been clear over the last few months that we need the right requirements and better signals to identify the channels that have earned the right to run ads. Instead of basing acceptance purely on views, we want to take channel size, audience engagement, and creator behavior into consideration to determine eligibility for ads.

That’s why starting today, new channels will need to have 1,000 subscribers and 4,000 hours of watch time within the past 12 months to be eligible for ads. We will begin enforcing these new requirements for existing channels in YPP beginning February 20th, 2018.

The company flat out admits that this is to stop those who somehow don't deserve to make money from getting paid, and also to appease advertisers:

There’s no denying 2017 was a difficult year, with several issues affecting our community and our advertising partners. We are passionate about protecting our users, advertisers and creators and making sure YouTube is not a place that can be co-opted by bad actors. While we took several steps last year to protect advertisers from inappropriate content, we know we need to do more to ensure that their ads run alongside content that reflects their values. As we mentioned in December, we needed a fresh approach to advertising on YouTube.

That "December" link was a YouTube post responding to the widespread controversy over YouTube star Logan Paul's immature and disrespectful videos in Japan and in particular, showing (and basically laughing at) the body of someone who had committed suicide in Aokigahara. And, indeed, many see these new changes to YouTube monetization as a direct response to the Logan Paul debacle -- even though these rules wouldn't have made a difference for Paul. Indeed, Paul's immature antics were a large part of what made him a YouTube star along with his brother (who some argue is even more immature -- and perhaps even more popular).

So, really, these changes seem to be an attempt to appease advertisers rather than YouTubers (who don't seem very happy about this). But, in doing so, YouTube takes a pretty big step from that enabler category into the gatekeeper cateogry. It's not all the way to the extreme of the record labels, of course. There are clear, stated, quantifiable metrics here. But it does move that "cliff" in the monetization scheme, such that those who are just starting out, or who just want to make a few extra dollars, won't be doing so via YouTube.

YouTube, obviously, is free to make that choice. It needs to appease increasingly angry advertisers who don't want their ads showing up in "controversial" places. So that's understandable. But, it's also... a bit sad. The power and excitement many of us felt for what the internet enabled was the fact that it allowed people to make use of these platforms to create, distribute, promote, communicate and monetize without any real gatekeepers. And that's changing.

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Posted on Techdirt - 19 January 2018 @ 11:51am

Southwest's Bullshit Lawsuit Over A Site That Made $45 Helping People Book Cheaper Flights

from the fuck-off-southwest dept

In the past, I've been a pretty big fan of Southwest Airlines. On many routes it has been my first choice for flights. However, after digging into a new lawsuit the company filed earlier this month, I'm pretty close to swearing off Southwest forever. I can't support this kind of bullshit legal bullying. First off, Southwest does have a bit of history legally bullying sites that improve the Southwest experience. Back when your seating on Southwest really depended on how close to 24 hours prior to your flight that you checked in, there were a few services that would automate checking you in at exactly the 24 hour mark, and Southwest sued to shut them down. The company has also threatened tools that merely scraped Southwest fares -- which could be kind of useful, since Southwest doesn't share its fares with popular flight info aggregators like Kayak and Expedia.

It is somewhat questionable whether or not Southwest actually has a legal right to block that -- pricing info is not covered by copyright -- but there are lots of attempts these days to twist laws to argue that merely putting something in a terms of service is enough to create a legal obligation.

Enter a new site: SWMonkey.com. The idea behind the site is fairly simple. Because Southwest Airlines (unlike basically every other airline) actually has no fees to change your flight, if you spot your same flight available for less, you can call Southwest and basically exchange your ticket for the new ticket and get credit for future flights (and sometimes even cash back). Southwest, of course, relies heavily on the idea that not many people take advantage of this. SWMonkey's clever idea was to monitor price changes for you, and alert you if the price on your flight dropped significantly. The site charged a $3 fee if it could save you $10 or more.

The site launched in November and Southwest sent a fairly obnoxious cease and desist letter to SWMonkey almost immediately after it launched. The crux of the cease and desist was that what they were doing was trademark infringement.

It has come to Southwest's attention that you are using Southwest's proprietary and trademarked names and logos in connection with your business. This is misappropriation of Southwest property, an infringement upon Southwest's proprietary rights, and is confusing and misleading to Southwest's customers.

Almost all of that seems to be complete bullshit. While it is true that SWMonkey was using Southwest's name, it was doing so to correctly identify that its service helped you save money when flying Southwest. That's known as nominative fair use (using someone's trademarks to correctly identify them). The idea that it was "confusing and misleading" is pure hogwash. Since the entire point of the site was to help you save money on Southwest, it's ludicrous to suggest that anyone would be confused into believing that the site was run by, or even blessed by, Southwest.

At first, SWMonkey put up a perhaps ill-advised blog post (prior to having a lawyer review it) insisting they weren't going to be intimidated and spouting some slightly confused legal theories. That resulted in more legal threats and eventually the decision to stop operating the service. In shutting off the service, they noted that they had made a grand total of $45 in the few weeks that the service operated -- meaning that a grand total of 15 people had successfully used the service.

This was bad enough, and you would think that Southwest's lawyers could be happy that the thousands of dollars in legal fees they had spent in angrily going after this cool project and had stopped a couple of guys from making any more than their $45. But, no. Southwest sent an even angrier cease and desist after the site had stopped offering its service. Now the complaint was that even though SWMonkey was no longer working, it had dared to leave the non-working site up. I'm not kidding.

Despite a series of correspondence over the past week, Southwest is surprised and disappointed that your clients are not willing to completely shut down the Website. It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here.

Part of the anger appears to be that, in closing the site, SWMonkey also linked to a tool on Github that would allow those with the technical knowhow to monitor changes in Southwest prices. The tool does not appear to have been created by SWMonkey. And, notably, at some point in the past few weeks, that tool has disappeared from Github. And, no matter what, all SWMonkey did was link to it.

Not only that, but the bumptious legal threat includes vague claims of possible criminal violations for leaving the website up.

That is pretty ridiculous, and the guys behind SWMonkey said so:

They want us to “cease operation of the website” completely. Why? We are not scraping their site anymore. We are not infringing on their copyrights or trademarks. We are nothing but a historical remnant of a really great service, and the links and blog posts that remain on our site are certainly not illegal.

SWMonkey is nothing more than an informational page and Southwest just sent us a cease & desist letter demanding that we disappear. It seems to me that Southwest's only goal here is to limit our freedom of speech, because at this point, that's literally all we have. After reading and rereading their letter, I can't find a single allegation with any basis. "Obvious legal risks"!? What obvious legal risks? We already disabled the service. They mention that the revised form of the site has issues, and imply that they can come after us for violating Texas criminal law, trespassing, civil conspiracy, and unjust enrichment. I would refute these claims by reminding them that not only are we not violating any Terms, we are not accessing the southwest.com website, and we are not even pursuing this as a commercial venture. We just felt that our users should know why a site that they trusted to share credit card and flight information with, has suddenly shut down their service.

SWMonkey's lawyer, Charles Roberts, responded to Southwest explaining why their takedown demands were bullshit:

At the top of page two, you indicate that a "revised form" of the website is being maintained which "raises additional issues." Without offering a clue about what you regard as those additional issues, you mention that Southwest, in prior litigation, has pursued claims for violation of Texas Criminal statutes, trespass, civil conspiracy, and unjust enrichment. As an aside, I could find no private right of action for Texas Penal Code §33.02; indeed, quite the contrary appears to be the case. See Hodson v. Moore, Civil Action No. 2:15-CV-453 (S.D. Tex. Sep. 23, 2016) ("However, the Texas Penal Code does not create a private cause of action. Aguilar v. Chastain, 923 S.W.2d 740, 745.... Further, I note that it is a violation of the Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter. See Rule 4.04(b)(1). It remains unclear whether the causes of action you reference at the top of page two of your letter refer to the functional website swmonkey.com, or the currently disabled version of the website, or are made merely to instill fear. Please clarify.

You then turn to Southwest's trademark claims. Again, it is unclear whether you are referencing the former version of the website or the disabled version. Regardless, the website swmonkey.com does not now, nor has it ever, violated Southwest's trademark rights. Any use of the word "Southwest" on the swmonkey.com website qualifies as nominative fair use in that it merely refers to your client. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526 (5th Cir. 1998). Further, because of the nature of the service offered in the prior version of swmonkey.com, it would be virtually impossible for one to assume that the services were being offered by, sponsored by, or affiliated with your client. As a further precaution, a disclaimer appeared (and continues to appear) at the bottom of the website placing users on notice that "SWMonkey is not affiliated with Southwest Airlines or any of its partners in any way." Given that swmonkey.com is no longer being used to offer any commercial service, we are perplexed as to why Southwest is insisting that the "entire website" be taken down. It would appear that Southwest is merely trying to use the legal system to curtail Roundpipe's free speech rights.

The current swmonkey.com website is even further removed from trademark infringement than the Southwest virtual airline website at swavirtual.com which I previously brought to your attention. Given that Southwest has acquiesced in the existence of swavirtual.com for the past nine years, I do think a court would be sympathetic to your arguments that swmonkey.com is creating consumer infringement.

Finally, you suggest that Southwest will take formal action for Roundpipe's prior alleged violation of Southwest's Terms and Conditions (based on conduct which has ceased) unless Roundpipe complies with all of Southwest's demands. Given that Roundpipe is no longer in violation with Southwest's Terms and Conditions, the demands in your letter seem to be little more than legal extortion.

Soon after that, The Outline published a pretty brutal takedown of Southwest's obnoxious bullying, entitled How Southwest Airlines kills startups that monitor its prices.

And, with that... one hoped it was over. But nope. The lawyers and bullies at Southwest decided to move ahead and sue SWMonkey and its two founders earlier this month. The actual complaint is totally insane. But before we get to just how terrible and ridiculous the complaint is, let's just remind people of this:

Southwest Airlines decided to sue a couple of guys who had ALREADY SHUT DOWN THEIR SERVICE which helped more people enjoy Southwest Airlines, and from which they'd only made $45, because they left the site up explaining why they shut down the service.

That's fucked up. And that's why I have no interest in flying Southwest Airlines ever again. And I can assure you I spend a lot more than $45 on Southwest.

But let's get into the actual lawsuit. Claim one is breach of contract. What contract? The complaint argues that by merely accessing Southwest's site, they have formed a "contract" with Southwest on the basis of Southwest's terms of service. This is a very twisted (and incorrect) view of contract theory. While there are some (unfortunately) mixed rulings in the courts regarding "clickthrough" or "browsewrap" contracts, this is a particularly ridiculous argument, especially considering that they weren't even buying tickets on Southwest's website -- just gathering the data. Southwest Airlines has every right to use technological means to try to block SWMonkey, but to sue them for "breach of contract"? Come on. Even worse, Southwest falsely claims that it "has been and will continue to be damaged as the result of Defendant's breach of the User Agreement." That's complete nonsense. The guys shut down the service. There is no continuing damage at all -- other than the damage to Southwest's reputation for filing this bullshit lawsuit.

From here, we'll jump to claim five before going back to the others, because it's similar to claim one. This is an infamous CFAA claim. For many, many, many years we've written about how the CFAA -- a law designed to be used against computer hacking -- has been twisted and abused to go after people for merely violating a terms of service. Thankfully, back in 2012, courts ruled that merely violating a terms of service does not automatically make it a CFAA violation. Similarly, just last year a court ruled that scraping of publicly accessible data is also not a CFAA violation. Those ruling are in different circuits, so not binding in Texas where Southwest filed, but still.

The one case that Southwest has that does kinda, maybe support its CFAA claim is the awful decision from 2016 in the Facebook v. Power case, where the court said that it can be a CFAA violation if you keep scraping after a cease and desist letter has been sent. Again, we think that's an incorrect reading of the law -- but even if it is how the courts are now reading the CFAA it should not apply here because SWMonkey STOPPED SCRAPING after receiving the cease and desist. At worst, Southwest could argue that they kept scraping for another week while they reviewed things with a lawyer, before deciding to stop offering the service. But after a legal review, they shut it down.

But, that's not what you'd get from reading the bullshit claims from Southwest:

Upon information and belief, Defendants have intentionally accessed and continues to access Southwest’s computers without authorization or in excess of authorized access, and through interstate communication, obtained information from Southwest’s computers in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C).

Defendants’ unauthorized access of a protected computer has caused damage and is continuing to cause damage to Southwest, including loss arising from the cost of responding to and investigating Defendants’ unauthorized access, which has amounted in an aggregated loss of at least $5,000 during a one-year period.

Defendants’ conduct has harmed and will continue to harm Southwest. As a result, Southwest has suffered and will continue to suffer losses and irreparable injury, in amounts not yet ascertained.

Southwest’s remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant.

What a load of crap. Remember, the service made all of $45 and then was turned off. The only thing left now is the website. To claim that it's causing all this damage and "will continue to harm Southwest" is complete and utter bullshit. Southwest spent nearly 10x more for just the filing fee alone on this lawsuit than SWMonkey made in the two or so weeks that its site operated.

A bunch of the claims are basically variations on trademark infringement. Again, as noted above, SWMonkey's use of the term "Southwest" was clearly nominative fair use. Incredibly, Southwest feels the need to highlight a whole bunch of other trademarks it holds, even though SWMonkey doesn't make use of any of them. This includes things like "Southwest Cargo," "SWABIZ," and "SWACARGO.COM." The whole point of this seems to be to flood the judge in the case with nonsense about "we own trademarks!" even if those trademarks are not used at all by SWMonkey.

There's also a claim of "unfair competition" which... also appears to be total nonsense. The site was not in competition with Southwest. It was designed to make Southwest's ticketing a better experience for fliers. And, this may be my favorite line in the lawsuit:

In addition, Southwest has suffered and will continue to suffer losses and irreparable injury to its business reputation and goodwill.

WHAT? First off, the site itself created no harm to Southwest's business reputation or goodwill. Instead, it actually reminded people that Southwest has a pretty awesome policy of letting fliers exchange tickets at no extra cost. That's a kind of cool business model choice that Southwest Airlines made. If it doesn't like people actually using that offer, then it should stop offering it.

And, more to the point: what is harming Southwest's business reputation and goodwill more? A site that helped fliers get cheaper tickets by properly using Southwest's own policies or Southwest filing a bullshit lawsuit with a ton of bogus claims against a small website that had already ceased offering the service Southwest objected to? I've already stated that this lawsuit has convinced me to stop flying Southwest. The SWMonkey site probably would have made me fly Southwest more.

Count six then involves "violations of Texas Penal Code §33.02" though, tellingly, refuses to detail what those violations are. 33.02 appears to be more or less a state version of the CFAA. But only the criminal parts. Perhaps I'm missing something in reading the code, but there does not (at first glance) appear to be a civil component. And yet, Southwest still includes it in the lawsuit -- despite the warning from SWMonkey's lawyer that it is a violation of Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter.

In short, almost everything about this lawsuit is complete bullshit and it makes Southwest -- whose entire reputation is built on its consumer friendly policies -- look like complete and utter assholes. There is no way around this. Southwest had already bullied these two guys into shutting down what appeared to be a useful service that helped Southwest customers make use of Southwest's own stated policies. And then, after the service was shut down, still filed a completely bullshit lawsuit, with a bunch of bogus claims, falsely stating that the service was still running, despite knowing that was false.

Southwest, in the lawsuit, says that SWMonkey continues to harm its reputation. That is only true so far as the fact that Southwest decided to file this totally bullshit lawsuit over the no longer working SWMonkey website. Southwest and its lawyers should feel ashamed -- and anyone who flies Southwest ought to consider whether this is the kind of company they want to give money to.

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Posted on Techdirt - 19 January 2018 @ 9:33am

EFF Tells Court That Boing Boing Linking To Playboy Images Is Not Infringement

from the well,-duh dept

Back in November, we wrote about a fairly crazy case in which Playboy Enterprises was suing the blog Boing Boing for copyright infringement, over a post by Xeni Jardin, linking to a collection of all Playboy centerfold images on Imgur (and a video version on YouTube). As we wrote in our post, this seemed like a very strange hill for Playboy to die on, given that Boing Boing clearly did not post the images, but merely linked to them, meaning that it was pretty clearly not infringement. There were some really strange arguments in the complaint, and the initial reporting on it that we saw was really bad -- falsely claiming the lawsuit said that Boing Boing "stole every centerfold ever." But, of course, there was no stealing at all. Just linking.

Boing Boing has now responded to the lawsuit, with help from EFF and top notch lawyers Mark Lemley and Joe Gratz from the law firm of Durie Tangri. The motion to dismiss is pretty thorough and well argued (no surprise), explaining why the case should be tossed out, because even if everything Playboy argued is true, Boing Boing has not committed any copyright infringement at all in merely linking. The MTD doesn't pull any punches:

This lawsuit is frankly mystifying. Playboy’s theory of liability seems to be that it is illegal to link to material posted by others on the web—an act performed daily by hundreds of millions of users of Facebook and Twitter, and by journalists like the ones in Playboy’s crosshairs here.

The filing describes how nothing Boing Boing did involved direct or secondary infringement, and even if it was, it's clearly protected by fair use:

The facts pleaded in Playboy’s First Amended Complaint (“FAC”) do not state a claim for either direct or contributory copyright infringement. With respect to direct infringement, Playboy alleges that third parties—not Boing Boing—posted the collection at issue, and that Boing Boing made reference to that collection with a hyperlink. As for secondary liability, Playboy does not allege facts that could show that Boing Boing induced or materially contributed to direct infringement by any third party. Playboy’s claim fails for these reasons alone.

What is more, Playboy’s own allegations show that further amendment would be futile. Boing Boing’s post is a noninfringing fair use, made for the favored and transformative purposes of news reporting, criticism, and commentary so that the reader can, in the words of the post in question, “see how our standards of hotness, and the art of commercial erotic photography, have changed over time.”

Amusingly, the Playboy complaint is so deficient that the Boing Boing motion has to try to make out what a better argument for Playboy might be... and then explain why even that would be wrong:

One possible theory on which Plaintiff may be proceeding is that the direct infringers in question are the individual or individuals who uploaded the photos in question to Imgur and YouTube. Even assuming arguendo that those uploads constituted direct infringement, that would not support a claim for contributory infringement against Boing Boing, because—as the FAC alleges—Boing Boing posted only after that third party completed the uploading, and therefore completed the alleged infringement. As discussed below, that allegation precludes contributory liability on either a materialcontribution theory or an inducement theory.

The filing does note that Boing Boing did post one image with its post... but also points out that Playboy doesn't claim the copyright on that image because it's in the public domain:

The Boing Boing blog post itself includes, as a header image, a partial reproduction of the centerfold of Miss February 1954... The FAC does not make any allegations with respect to that image, and Playboy does not include Miss February 1954 in the list of images to which it claims ownership. ECF No. 15-1. And rightly so: the February 1954 issue of Playboy entered the public domain in 1981, when Playboy did not renew its copyright registration.

But on the meat of the claim, there's clearly no infringement in sending people off to view infringing material:

It is well-established that controlling the viewing of copyrighted material is not within the exclusive rights of the copyright holder. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169; see also Flava Works, Inc. v. Gunter, 689 F.3d 754, 757-58 (7th Cir. 2012). Indeed, courts have been rejecting secondary liability claims founded on the alleged viewing of linked-to material for almost twenty years. See Bernstein v. JC Penney, Inc., No. 98-2958 R EX, 1998 WL 906644, at *1 (C.D. Cal. Sept. 29, 1998). To the extent users’ computers created temporary copies while browsing, the creation of cached or local copies during Internet browsing is a non-infringing fair use, as a matter of law. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169-70. Internet users could only commit an act of direct copyright infringement if, once they have visited or viewed the linked-to content, they take the further step of downloading a copy of the material. See Flava Works, Inc., 689 F.3d at 757-58 (“unless those visitors copy the videos they are viewing on the infringers’ websites, [the defendant] isn’t increasing the amount of infringement.”). The FAC does not allege that any reader did so.

There's much more in the motion to dismiss and I highly recommend reading it.

Of course, all of this should make you wonder -- as I did in our original post on this lawsuit, what the hell Playboy is thinking. It's a pretty bad look all around to be filing such a flimsy copyright complaint against a blog such as Boing Boing. While this does appear to be a SLAPP style lawsuit, anti-SLAPP claims are not available on federal claims, such as copyright. However, the Copyright Act does allow for awarding legal fees on bad copyright claims, and the Supreme Court has been supportive of such fee shifting.

But this brings us back to what the hell Playboy thought in bringing this lawsuit. At the very least, it raises questions about the lawyers Playboy has hired. Perhaps not surprisingly, this is not the first time the lawyer who filed the complaint, Stephen Doniger, has appeared on our pages. A few years back, we noted that Doniger appeared to be copyright trolling, filing a bunch of infringement claims over clothing that had horizontal stripes (NOT KIDDING!). Indeed, Doniger has been dubbed a copyright troll of the fashion industry, and his firm is listed as being near the top of the "most copyright cases filed" list as of last year.

But it appears they've been branching out. Soon after filing the Boing Boing lawsuit for Playboy, Doniger sued Disney and others on behalf of Jaime Ciero, claiming that the hit song "Let it Go" from the movie Frozen infringed on Ciero's song, which seems to be building on the whole "Blurred Lines" line of cases where any song that has some sort of similarity to another song is now subject to infringement claims. And Donger's firm seems to be finding a lot of these "similarities" in songs. He went after Demi Lovato for one of her songs sounding similar to a Sleigh Bells song (that lawsuit settled, but Lovato is also named as a defendant in that Let It Go lawsuit -- so I'm guessing she's not a fan of Doniger). Doniger is also the lawyer behind a recent lawsuit against Cindi Lauper over a song from her big Broadway musical "Kinky Boots."

Doniger's partner in the firm is Scott Burroughs, who writes a regular column for our friends at Above the Law. I'm sure it's a complete coincidence that in the days and weeks after Doniger and Burroughs sued Boing Boing for linking, that Burroughs suddenly posted a series of silly pieces claiming that framing and inline-linking or embedding are obvious infringements (which... many courts would actually disagree with) and using one of those stories to slam EFF for daring to defend linking as non-infringing (a bit of fore-shadowing, perhaps?). He even argued that such deep linking is "ground zero in the latest battle of Big Tech versus the arts community."

Either way, beyond copyright trolling over stripes on clothes and marginally similar songs, it appears that Doniger and Burroughs sense a new opportunity in suing for infringement over linking. Hopefully the court (with EFF's help) shuts them down on this one quickly.

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Posted on Techdirt - 18 January 2018 @ 3:40pm

A Bunch Of Politicians Who Complain About Trump's Authoritarian Tendencies Just Gave Him 6 Years To Warrantlessly Spy On Americans

from the because-reasons dept

As was widely expected after Tuesday's close vote on cloture, the Senate officially voted to renew (in a somewhat expanded way) Section 702 of the FISA Amendments Act by a vote of 65 to 34. That also means a few of those who voted against cloture switched over and voted for the program, including Senators Ted Cruz and Chuck Schumer. President Trump will almost certainly sign the bill shortly, despite confusing basically everyone last week by tweeting out complaints about the program, despite his White House vehemently supporting it.

Trump's confusion isn't all that surprising. What is surprising is just how many people who have been complaining and warning about Trump made this possible. In the House, vocal Trump critics including Nancy Pelosi, Adam Schiff and Eric Swalwell were among those who voted for this bill which, again, gives the FBI the power to spy on Americans without warrants via the collection of content (not metadata) swept up by the NSA. While defenders of the program keep insisting the program cannot be used to "target" Americans, they leave out that a ridiculous amount of American content is swept up into this collection, which can then be sifted through without a warrant, including a huge amount of communications of Americans.

Over on the Senate side, things were even more ridiculous. Senator Jeff Flake voted for cloture, helping to end (the already non-existing) debate on such surveillance, and blocking any amendments. And then, the very next morning, went on the Senate floor to slam the President, compare him to Stalin, and warn that our democracy may not survive. Again, this was mere hours after Senator Flake voted to give more surveillance powers to the President he was about to compare to Stalin.

Or how about Dianne Feinstein? It may be no surprise that Feinstein voted to continue and expand surveillance -- she has a long history of doing exactly that. But just about an hour before voting for cloture, Feinstein herself introduced an amendment that would have required a warrant to search the corpus of data collected under 702. And then she voted to block that amendment from even being voted on. Let me repeat that, because it's just that insane: Feinstein introduced an amendment to the 702 renewal, that would have required a warrant to sniff through the data... and then voted against allowing that amendment to be heard and voted on. Within an hour or so. And, since cloture needed 60 votes and just squeezed through with those 60 votes... Feinstein could have changed the debate herself. But chose not to.

Or how about Senator Claire McCaskill. She was the final vote for cloture and took over an hour after the vote was called to actually reach the floor. She was the actual deciding vote, as, if she voted against it, the cloture vote would have had only 59 yaes, and the debate would have continued, and amendments proposed. Trump has been loudly denouncing McCaskill for months as she's facing a tough reelection campaign. And her response was to deny any further debate or amendments and to vote to give Trump more surveillance powers.

These are not the only ones. Many vocal critics of the President just handed him much greater power to warrantlessly spy on Americans -- something the President (in a confused way) complained about concerning what he believed (incorrectly) was illegal spying on his own campaign.

Zack Whittaker at ZDnet has also compiled a list of elected officials who had put out earlier statements promising to reform surveillance... only to then vote for this program. It includes both Swalwell and Feinstein mentioned above, but many others as well.

Over at Lawfare, a site that has long defended basically every aspect of the surveillance state, reliable surveillance defenders Jack Goldsmith and Susan Hennessey tried to defend the paradox of not trusting Trump, but giving him the ability to warrantlessly spy on Americans. The crux of it is basically... "we don't trust Trump, but there are good people in the intelligence and law enforcement communities and they'd never abuse these powers."

More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance.

Not surprisingly, Marcy Wheeler rips these claims to shreds in a response on her own blog, noting that beyond factual errors in the piece, it more or less ignores the FBI's role in all of this. Even if we grant the (incorrect) claim that the NSA doesn't abuse this data, that's not at all clear on the FBI side -- especially when the FBI refuses to provide any details at all:

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

Furthermore, Wheeler notes that Hennessey and Goldsmith completely ignore how this gives Attorney General Jeff Sessions incredible unreviewable power to make use of this warrantless data for criminal prosecutions, hiding where he got the information from.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

And, now, it appears that (unless Fox News somehow intervenes again) the President will sign this bill. EFF has put out an open letter about how awful this is, and how it intends to fight this in court. But, this was a major missed opportunity, and what's most incredible and disappointing is how many people who complain about Trump's authoritarian tendencies were central to making it possible.

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Posted on Free Speech - 18 January 2018 @ 9:29am

Philippines Trying To Shut Down Popular News Site For Reporting On President Duterte

from the freedom-of-the-press? dept

The Philippines has a "free speech" amendment in their Constitution not unlike the American First Amendment. In the Philippines, it's actually their 4th amendment:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

From Filipinos I've spoken to, they seem rightfully proud of this right to free speech. And they should be. But these things only matter if they're actually respected. And there's growing evidence that, under President Duterte, there's little respect for such things. A few days ago, the news broke that the Philippines Securities and Exchange Commission was pulling the license of Rappler, a popular Filipino news source started by Maria Ressa. I was privileged to hear Ressa speak at a conference last summer (she was originally supposed to be a participant in a session that I was organizing, but it was much better having her speak separately about the challenges she was facing in covering news in the Philippines). Rappler has really done some amazing work under fairly challenging circumstances.

And... it appears that those challenging circumstances are leading the government in the Philippines to try to shut them down. The official reason for pulling the license is the claim from the SEC that Rappler has violated rules concerning foreign ownership.

The En Banc finds Rappler, Inc. and Rappler Holdings Corporation, a Mass Media Entity and its alter ego, liable for violating the constitutional and statutory Foreign Equity Restriction in Mass Media, enforceable through laws and rules within the mandate of the commission

That, alone, should raise some questions about (1) why they need a license to operate and (2) why it matters how much is owned by foreigners. But the larger issue is that it's not at all clear that the supposed foreign ownership claim is accurate. It does appear that Rappler engaged in a fairly cumbersome financial transaction to allow foreign entities -- including the Omidyar Network -- to help fund its reporting. And some of that involved "Philippine Depository Receipts" or PDRs whose value is tied to the value of Rappler equity -- but which do not grant any actual ownership stake in the company. To the SEC in the Philippines, this appears to be a meaningless distinction, but it actually makes plenty of sense. You can sell an asset class that is tied to the value of something else without it granting equity in the original thing.

What this really comes down to is that Philippine President Rodrigo Duterte is not at all happy with Rappler's coverage of his administration -- and has a history of directly calling out Rappler, and falsely claiming that it's "fully owned by Americans." Earlier this week, while denying having anything to do with the SEC pulling Rappler's license, he also made it clear that he has no problem attacking the site:

Earlier this week, Mr Duterte had addressed a Rappler reporter, saying "you have been throwing trash... If you are trying to throw garbage at us, then the least that we can do is explain how about you? Are you also clean?"

And, as if to make the point even stronger that the Philippines is moving away from its Constitutional support of free speech, some legislators in the Philippines are trying to amend the Constitution to massively weaken the free speech protections in the country, such that they only apply to the laughably vague "responsible exercise" of free speech:

"In the Bill of Rights, we see everything there to be acceptable, except Article 3, Section 4 (freedom of speech)," Capiz Rep. Fredenil Castro (2nd district) said Tuesday during the House Committee on Constitutional Amendments' hearing on the proposed amendments to the Constitution.

A subcommittee proposed to reword the provision to read, "No law shall be passed abridging the 'responsible exercise' of freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."

Castro said many believe the constitutional guarantee of free speech has been "unrestrained."

"There is so much abuse of this freedom," he added.

That's... quite a statement. First of all, if your freedom of expression protections are limited to the "reasonable exercise" of free speech you have no free speech protections, because the government can and will always define speech it dislikes as unreasonable (see Duterte's comments above). Second, the whole point of protecting freedom of expression is that it's "unrestrained." To complain about that seems preposterous. Similarly what Castro sees as "abuse of this freedom" actually means "exercising of this freedom in a way I dislike." And that's the point of having true support for freedom of expression -- that many times it will be disliked by the representatives of the government, but they should be unable to block it.

Unfortunately, it appears some in power in the Philippines see it entirely differently. And, thus it appears that what the Philippines has touted as freedom of expression may be anything but that. Thankfully, not everyone in the government agrees. As reported in Rappler (naturally), some find this problematic:

The House opposition bloc did not agree with this proposal.

"How can you define responsible? What is responsible for them? So when you say responsible, it's what favors them?" said Magdalo Representative Gary Alejano, citing the proliferation of disinformation and propaganda from online personalities who are apparent supporters of President Rodrigo Duterte.

[....]

Ifugao Representative Teddy Baguilat said this provision could be used to curtail freedom of expression.

"That's why, what happened to Rappler, that's because they feel it's not a 'responsible' media institution. And I'm sure other media institutions are threatened right now. So that's the thing, who defines?" he said.

Hopefully cooler heads prevail. Supporting freedom of expression means going all in -- and the Philippines seems to be perilously close to completely ditching the concept.

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Posted on Techdirt - 17 January 2018 @ 1:29pm

Homeland Security's Over Obsession With Counterfeits Now Harming Innocent Buyers Of Counterfeit Goods Online

from the this-is-not-theft dept

For many years we've talked about the kind of derangement that happens among many -- especially among those working for Homeland Security's Customs and ICE divisions -- considering the supposed "dangers" of counterfeit goods. Over and over again we've pointed to studies that have shown that the "harm" of counterfeits is massively overblown. And these are not just random studies picked out of a hat. Both the Government Accountability Office (GAO) and the OECD have put out studies on this. When you look at the details, you quickly learn that while there are a few cases of people tricked by counterfeit goods -- and a vanishingly small number of cases where people are put at risk due to counterfeits -- in many, many cases, no one is actually losing out due to counterfeits. They are frequently an aspirational buy. That is, the buyer knows they're buying a counterfeit good, but are doing so because they so appreciate the real version, but can't afford it. And studies show that buyers of counterfeits quite frequently buy the real deal later when they're able to afford it. Thus, counterfeits often act as marketing for the original.

But, for whatever reason, Homeland Security likes to play up the "threats" of counterfeits and makes lots of noise about how many counterfeit things it seizes at the border every year (or... not at the border -- such as the time it raided a lingerie store to get "counterfeit" panties advertising sports teams). And sure, Homeland Security really really wants you to believe it's protecting the public with this kind of thing.

But if that's the goal, explain this story. Harper Reed tried to buy a fancy Rimowa luggage on Amazon last year. There was no indication that it was counterfeit -- it was priced the same as actual Rimowa luggage. But customs intercepted the shipment and wouldn't let it in. That's fair enough, I guess, but it's the next part that's shocking. Because of this Customs refused to renew Reed's Global Entry membership. Global Entry, for those who don't know, is a process by which fliers who frequently travel internationally can fill out a form, go for an interview, pay some money... and be able to speed through customs upon re-entering the US. While some grumble about paying for access, it's actually a more reasonable security program than most -- in that it actually involves effectively pre-clearing people less likely to need scrutiny at the border.

But Reed's status was not renewed because he was listed as trying to "import counterfeit goods." Again, you can see the intent behind this rule. If someone is actually "importing" a bunch of counterfeit goods to sell, you can see how that might be a good reason to deny someone Global Entry. But Reed wasn't trying to import a bunch of counterfeit goods. He was trying to buy a suitcase. He didn't get it from Amazon (he bought one later from a store) and that's fair enough under the law -- but why hold that against him.

Apparently the geniuses at Homeland Security have little desire to distinguish a counterfeiting operation from a dude buying something on Amazon he thought was legit.

When CBP intercepts a shipment, says Mark Schonfeld, an intellectual property lawyer at Burns & Levinson LLP, in Boston, Massachusetts, it sends a seizure notice to the trademark holder (in this case, Rimowa), which includes the names of the importer and exporter. The brand can then decide what action it wants to take, if any. Going after the latter party can be difficult and costly, since the vast majority of counterfeits come from Asia (in 2016, nearly 90 percent of products seized by CBP originated in China and Hong Kong). The importer, however, is by definition domestic, making them the easier target.

Schonfeld says this is the first instance he’s heard of in which a consumer has been flagged for importing a single item, but that legally, the principle is the same. “It definitely can happen to a consumer,” he says. “You know, you can go to Tijuana, just right over the San Diego border and you can easily buy counterfeits there, but no consumer should think that coming back into the United States with the item is risk free.” Much more common are cases in which Amazon itself is named as the importer, particularly since it began courting Chinese sellers with favorable shipping terms in 2015, and as its Fulfillment By Amazon program expands by leaps and bounds each year, offering third-party merchants the chance to take advantage of the e-commerce giant’s logistics infrastructure, customer service, and even Prime two-day shipping by sending goods directly to its warehouses.

Again, at the very least, it seems that intent should be taken into account here. Buying something on Amazon, with no indication (not even price) that the luggage was counterfeit, should not lead one to being accused of being a counterfeiter. But, of course, with DHS feeling so damn strongly about the "evils" of counterfeiting, it's only to be expected that they'll overreact to situations like this as well.

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Posted on Free Speech - 17 January 2018 @ 3:23am

Shooting The Messenger: Reporter Who Exposed Massive Indian Data Breach Targeted By Law Enforcement

from the wrong-target dept

For many years now, we've been among those raising concerns about India's giant identity database known as Aadhaar. A few weeks ago, we wrote that there appeared to be a fairly massive breach of data from that database, and that the information was now available on the dark web for cheap.

This is obviously quite concerning and you'd hope that various Indian government agencies would launch an appropriate investigation. And... it appears at least one investigation has been launched. But, not into the leak. Instead, it's allegedly into the reporter who exposed the leak:

A branch of the Indian government filed a police complaint last week launching an investigation into journalist Rachna Kaira and the Tribune of India, after the publication released a report describing what looks to be a massive vulnerability in a government database that is being exploited by an unknown group to sell highly sensitive and private data about Indian citizens.

The details on the "police complaint" remain sparse, so perhaps it's not a huge deal -- but any attempt to investigate and/or intimidate (and those can be one and the same in some cases) a reporter for merely exposing a fairly big possible data breach that could effect over a billion people at least suggests an interest in covering up the breach, rather than in understanding the breach and preventing further damage.

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Posted on Techdirt - 16 January 2018 @ 4:11pm

After Basically No Debate, And No Opportunity For Amendments, Senate Votes To Expand NSA Surveillance

from the not-unexpected,-but-dumb dept

As was unfortunately expected, after a very short (and fairly stupid) debate that was full of misleading statements that focused more on "but... but... terrorism!" than anything substantive, the Senate has voted for cloture on the same bill the House approved last week that extends and expands the NSA's 702 surveillance program, opening it up to widespread abuse and refusing to do simple things like adding in a warrant requirement when used to spy on Americans. The vote was actually surprisingly close -- going right down to the wire. They needed 60 votes to get this bill over the top and they almost didn't get them. The final vote was 60 to 39 with the final vote (well over an hour after the vote starting) coming from Senator Claire McCaskill in favor of warrantless spying on Americans.

This is not all that surprising, even if it's disappointing. It follows the pattern that we've seen with surveillance programs over the past decade. Whenever they are up for renewal, Congress refuses to debate or discuss serious reforms until there's like a week left... and then they have a simplistic and rushed debate that basically consists of the hawks freaking out about how we're all going to die if the NSA can't keep spying on people, and civil liberty defenders pointing to the 4th Amendment, only to have the surveillance state supporters push back that the NSA protects us and is full of good people and how dare you question their good nature by insisting on petty little things like "warrants" as required by the Constitution.

The cloture vote is not technically the final vote. It just shuts down debate and blocks the ability to raise any amendments. There will be a final vote soon, but the cloture vote is, effectively, the important vote here, and having voted for cloture the bill will pass -- and despite President Trump's confusion last week, he will sign the bill, and the NSA will get to turn back on its "about" surveillance capabilities it had been forced into shutting down last year, and the FBI will continue to get full, warrantless access to the "backdoor" or "incidental" collections of the communications of many, many Americans without a warrant and without anything approaching probable cause.

While this was expected to turn out this way, it's still bad. It's our Senate (and the House and the White House) purposely spitting on the 4th Amendment of the Constitution to appease the NSA and the FBI. And, as with last week, it's especially incredible to see a number of Senators who have spoken out against Donald Trump -- including Senators Jeff Flake and Dianne Feinstein -- then turn around and vote for this. Last week, Flake compared Trump to Stalin. And just days later he votes to give that same Trump vast surveillance powers over Americans. Incredible. Meanwhile, Trump has been attacking Claire McCaskill left and right as she's up for re-election... and she repays that by giving him more surviellance power and selling out the American public. Missouri voters should remember that.

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Posted on Techdirt - 16 January 2018 @ 10:44am

Kodak's Supposed Cryptocurrency Entrance Appears To Be Little More Than A Rebranded Paparazzi Copyright Trolling Scheme... With The Blockchain

from the blockchain-can-solve-it dept

For a few years now I've debated writing up a post about why a "blockchain-based DRM" is an idea that people frequently talk about, but which is a really dumb idea. Because the key point in the blockchain is that it "solves" the "double spend" problem of anything digital, there are always some who have argued that it could be useful in stopping the infinitely copyable nature of digital content. But... actually doing that is a much more difficult proposition. Instead, we just get simplistic ideas around using a blockchain ledger merely to establish a form of a rights database. Which... is fine, but hardly all that compelling a use of the blockchain (a regular old database is probably a lot more useful and efficient for that use case).

But, last week, there was an awful lot of hype, fuss and confusion around what was billed as Kodak launching its own cryptocurrency / blockchain effort called KODAKone and Kodak Coin, that would "create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform." More significant details were lacking, but Tim Lee, over at Ars Technica was among the first (if not the first) to realize that "KODAKone" appeared to be little more than a last minute rebranding of a planned initial coin offering (that had basically no interest) put together by an offshoot of a paparazzi photo agency:

The evidence strongly suggests that Kodak Coin is the re-branding of an initial coin offering called RYDE coin that never got much attention and was apparently aborted days before Kodak Coin was announced. Until recently, the project had a page on the crowdfunding site Start Engine. The page is no longer there, but Google cached a copy of the site on January 3.

As recently as last week, RYDE coin was being pitched as a way of expanding the licensing business of its creator, paparazzi photo company WENN Media. Now the RYDE page has disappeared, and WENN Media's parent company, WENN Digital, has partnered with Kodak to create a blockchain platform that sounds a lot like RYDE—except that there's no mention of celebrity photographs.

The site cmyk Trends has many more details showing that this was actually cooked up by WENN and another company, Ryde GmbH, that appears to be something of a copyright trolling operation:

It is a partnership with WENN Digital, which in turn is a venture between WENN (a UK based Celebrity and Entertainment News Agency) and Ryde GmbH, Germany. Ryde was founded by Jan Denecke, a lawyer specialized in media and copyright law. Ryde (google "Reward Your iDEas") apparently has software that finds unlicensed material on the internet, politely informs the web site owner of the infringement and collects the settlement. This technology will probably be the policing element in the beautiful new world of digital rights licensing with Kodak Coins for payments.

It appears that "Kodak" here is just for the brand name. Since Kodak's bankruptcy a few years back, it's gone heavily into the name licensing business as a way to make money -- and it appears that's exactly what happened here, though it's possible that Kodak may also set up some computers to handle the "mining" needed for Kodak Coin behind all of this.

While the details are still a little murky, it appears that the system will be built on the Ethereum blockchain, which has been designed to handle business transactions, digital asset transactions certainly being prime candidates. The Ethereum blockchain has its own crypto-currency Ether, which could certainly be used for payments, but "Kodak Coins" may resonate better with photographers and help the acceptance of the system. So it looks more like an opportunity for Kodak to monetize its remaining brand value, rather than a technology contribution. While WENN Digital is handling the business, Kodak will get an unspecified royalty from all transaction and will start its own "coin mining operation" in Rochester. The term "coin mining" is somewhat misleading. Crypto currencies require consensus based certification of each addition to the blockchain. The computers providing that service - and using lots of energy in the process - get rewarded with new coins. I am speculating, but somebody has to provide the service for a new coin until the big boys get interested. With Bitcoin mining using as much electricity as Denmark (some 32 TWh), becoming a player in coin mining would be a real change for Kodak.

And, of course, as with so many silly "now we're doing blockchain!" announcements, this one caused Kodak's stock price to soar, bumping up the valuation of the company over $200 million the day of the announcement, and the stock price has stayed up there since.

Of course, as Lee noted in his story about this, the original pitch for RYDE's ico, which has since been scrubbed from the web, focused heavily on digital rights management for paparazzi, and it was only after the last minute rebranding that it became about all photographers.

The pitch for the RYDE project highlighted WENN's success in the paparazzi business. "Our paparazzi photographers are the best in the business," the RYDE coin page said. "With RYDE coin, we hope to develop our blockchain platform to deliver registration, licensing, infringement, and other unique revenue streams in order to benefit the community of countless paparazzi and media conglomerates with whom we do business."

By contrast, the Kodak Coin press release and website don't say anything about paparazzi photographs. Bolstered by the Kodak brand, they're pitching Kodak Coin as a universal platform for licensing photographs. The press release mentions that WENN "works with approximately 2,500 professional photographers," without being too specific about what kind of photography they're doing.

So all that raises some pretty big questions. Obviously, there's a lot of ridiculous speculation on the stock market side for any company that says "blockchain" -- so some of this is to be expected. But does anyone really think that a blockchain-based photography rights database, combined with what certainly sounds like some light copyright trolling ("software that finds unlicensed material on the internet, politely informs the web site owner of the infringement and collects the settlement") is really worth that much money? So far, other public companies that have focused on copyright trolling as a business model haven't found it to be that lucrative. But, perhaps all they were missing was Kodak's respected brandname and some fuzzy hype around the blockchain.

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Posted on Techdirt - 16 January 2018 @ 9:31am

Media Freaks Out About Facebook Changes; Maybe They Shouldn't Have Become So Reliant On Facebook

from the pivot-to-bankruptcy dept

Last week, a large part of the media ecosystem seemed to totally flip out following Facebook's announcement that it was going to effectively de-prioritize news content in favor of content from friends and family. Facebook was pretty direct about how this will decrease traffic to many publishers:

Because space in News Feed is limited, showing more posts from friends and family and updates that spark conversation means we’ll show less public content, including videos and other posts from publishers or businesses.

As we make these updates, Pages may see their reach, video watch time and referral traffic decrease. The impact will vary from Page to Page, driven by factors including the type of content they produce and how people interact with it. Pages making posts that people generally don’t react to or comment on could see the biggest decreases in distribution. Pages whose posts prompt conversations between friends will see less of an effect.

From Facebook's standpoint, this move is a pretty easy one to make. Even though it had spent the past few years heavily courting news publishers (including directly paying large publishers many millions of dollars to "pivot to video"), the company hadn't totally succeeded in becoming the go to source for news (that remains Twitter's strength). And yet, Facebook was also getting more and more grief over news items in its feeds, especially post-election when people incorrectly wanted to "blame" news on Facebook for Donald Trump's presidential victory.

On top of that, this move will only enforce something that Facebook had been inching towards for a while: forcing businesses and publishers to pay to have their news reach a larger audience. So... if this means that Facebook makes more money, distresses fewer people, and doesn't get attacked as much for the so-called problem of "fake news" it looks like a total win from Facebook's perspective.

Publishers, on the other hand, were generally freaked out. Many have spent the past 5 years or so desperately trying to "play the Facebook game." And, for many, it gave them a decent boost in traffic (if not much revenue). But, in the process, they proceeded to lose their direct connection to many readers. People coming to news sites from Facebook don't tend to be loyal readers. They're drive-bys.

This is why we actually think this is a good thing. As we've discussed in the past, if your entire business is reliant on someone else's platform, you're going to be in trouble. That other platform can pull the rug out from under you in an instant -- as may be the case here.

This is a big part of the reason that we've deliberately refused to "play the Facebook game" over the years, even as friends at other publishers kept telling us we were missing out on traffic. As I noted a few weeks ago in our 2017 wrap-up post, we're pretty proud of the fact that a plurality of our visitors are visiting directly, and that less than 20% of our visits come from social media. It suggests that our audience is pretty loyal, and I don't need to freak out about changes on any platform -- whether its social, search or something else.

Of course, it won't be surprising to see some publishers continue to throw away good resources and time towards trying to "game" this new system. As Facebook's announcement states, since it will promote content that people "interact" with, expect to see a lot of ridiculous "comment begging" or "share begging" from publishers. At Techdirt we've long forbidden any kind of "comment begging" in our posts (e.g., "Here's some crazy opinion! Do you agree or disagree? Let us know below!") because it feels cheap, manipulative and inauthentic, rather than genuine. I don't want to insult your intelligence with such things, but I expect many publishers, desperate for that Facebook traffic drip, will resort to that kind of thing.

The better solution, hopefully, is that many more publications will get over their needy relationship with platforms like Facebook, and focus on building actual, loyal audiences. If not, perhaps they'll go away. And, frankly, if they've spent the past few years living off of ephemeral Facebook traffic, it's not clear that many will miss them.

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Posted on Techdirt - 12 January 2018 @ 7:39pm

Senate To Vote Tuesday On Surveillance Bill; Four Senators Try To Rally Others To Oppose

from the say-bye-to-the-4th-amendment dept

Following yesterday's bizarre vote in the House, in which many members who opposed President Donald Trump and warn about his abuses of office voted to give him much greater surveillance capabilities, the issue quickly moved to the Senate. Senate Majority Leader Mitch McConnell made a procedural move to ensure no amendments are added, and the bill the Senate will vote on will be basically the awful bill in the House.

On top of that he put out a misleading statement, playing up the usual fear mongering about Section 702 and even name-checking 9/11.

“Republicans and Democrats agree that we must not deprive the men and women who protect our country of this important tool. Five years ago, a reauthorization of Section 702 passed the Senate with overwhelming bipartisan support. Al Qaeda, ISIL and associated terror groups remain intent on striking our people, and those serving us overseas. I look forward to renewing the bipartisan consensus on this issue now that the time has come to approve a new extension.”

“With each day that passes since this nation was attacked on September 11th, 2001 it seems that the concern over terrorism has waned. That is in part due to the success of our defense and intelligence community in preventing another attack. And they rely upon section 702 to accomplish that mission. But as we know, Al Qaeda, ISIL and associated terror groups remain intent on striking our people, and those serving us overseas.”

Of course, this ignores that Section 702 didn't even show up until almost a decade after 9/11 -- so really wasn't responsible for most of the intelligence work that McConnell is giving it credit for. And, on top of that, it ignores the widespread abuse of Section 702 programs that we now know about. It also ignores that in some ways this new bill expands the power to conduct surveillance on Americans without a warrant and to use that surveillance for law enforcement, rather than intelligence purposes.

An intellectually honest debate about this would address these issues. But McConnell does not appear interested in an intellectually honest debate, preferring to scream "9/11!" and demand Senators vote to approve the plan. There is a group of four Senators pushing back against this: Senators Rand Paul, Ron Wyden, Mike Lee and Pat Leahy have sent a powerful letter to their colleagues, detailing the many problems with the bill.

This bill allows an end-run on the Constitution by permitting information collected without a warrant to be used against Americans in domestic criminal investigations. It endorses the possibility that the government will resume “about” collections on Americans, a practice that the government was actually forced to abandon last year due to significant non-compliance with privacy protections ordered by the FISA Court. And it does nothing to protect innocent Americans from expanding warrantless surveillance.

  • Continuing the “backdoor” loophole: The bill does nothing for the thousands of Americans whose private communications are searched without a warrant every year, including those who are not even the subject of an investigation. Nor would it prevent unlimited searches for Americans’ information, even for non-national security purposes. The so-called “warrant requirement” reform in the bill applies only to criminal suspects, and then only to the government’s access to their information at the final stage of an investigation, a situation that, according to the most recent annual data from the Director of National Intelligence, has occurred once. This means that the bill actually treats those suspected of a crime better than innocent Americans.
  • Restarting “About” collection: The bill, for the first time, would statutorily recognize the possibility of the government restarting “about” collection, essentially by default, which would necessarily include warrantless collection of communications to and from Americans for whom there is no suspicion at all. The government was forced to abandon this problematic form of collection last year due to extensive compliance problems, and should not be allowed to resume it without specific Congressional approval.
  • Unreviewable end use: The bill grants new, unchecked powers to the Attorney General to allow data collected without a warrant to be used in domestic criminal prosecutions of Americans. The Attorney General merely has to determine that a criminal proceeding “affects, involves, or is related to the national security of the United States” or involves a “transnational crime.” Alarmingly, the bill explicitly prohibits any challenge to the Attorney General’s decision.
To be clear, FISA’s purpose is to collect foreign intelligence, but without additional meaningful constraints, Congress is allowing the government to use information collected without a warrant against Americans in domestic court proceedings. We have introduced two separate bills which preserve the government’s ability to pursue terrorists abroad and protect the country from foreign threats while also making the necessary reforms to protect the Fourth Amendment rights of Americans here at home.

The FISA Amendments Reauthorization Act, however, further expands the risks of unconstitutional spying on innocent Americans, and we encourage you to join us in opposition to this bill. We believe that a clean, short-term extension would be markedly preferable to this legislation. Section 702 was last extended for the length of the Continuing Resolution; if Leadership does not allow any amendments to the FISA Amendments Reauthorization Act and it does not pass this coming week, then Section 702 authorities can be extended again on the next Continuing Resolution to allow the Senate to fully debate how to appropriately reform this powerful surveillance tool.

It would be nice if other Senators actually paid attention and listened to these four... but the fact that it is just these four (and they tend to be the most reliable four Senators talking about protecting the 4th Amendment) suggests that McConnell knows that he has enough votes to pass the bill and allow the NSA and domestic law enforcement to increase their warrantless surveillance of Americans. This also means that it might be a good time to call your own two Senators and make sure they're voting against this. Fight for the Future is crowdfunding to buy billboards advertising against some Senators who vote for the bill, but the more these Senators hear from constituents saying that this bill obliterates our 4th Amendment rights, the better.

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Posted on Techdirt - 11 January 2018 @ 1:33pm

Why Are The People Who Whined About Wheeler's Net Neutrality Rules Being '400 Pages' Silent About Pai's Being '539 Pages'

from the because-they're-fucking-hypocrites dept

Mike Wendy is an interesting guy. He's ever present on Twitter attacking pretty much anyone who is in favor of net neutrality and has a bit of a following. In his day job, he operates something called "Media Freedom" which is one of an astoundingly long list of astroturf operations parroting telco interests (nearly all of Wendy's prior career was spent working for telco industry groups). Over the last two years, Wendy has been one of the most vocal attackers of the Tom Wheeler's net neutrality rules -- and he had a pretty strong go to line about just how much of a "regulatory" burden the rules were. Let me see if I can find it... Oh, right.

Yes, as Wendy's repetition was designed to point out, over and over again, those old rules simply must be extra burdensome, because it's 400 pages and over 1700 footnotes. Of course, that's bullshit, and Wendy knows its bullshit -- but he wanted to misrepresent the rules and make them seem like a giant regulatory burden. The actual rules were just 8 pages. There were 392 other pages of legally required information including discussions of the various public comments and the various statements from the Commissioners, including lengthy dissent statements from the disagreeing commissioners. In the Wheeler ruling, Ajit Pai's dissent took up 64 pages and Michael O'Rielly's was another 15 pages. Yet, somehow, Wendy and others didn't bother letting people know that 89 pages of the 400 pages were explaining why the rules were (apparently) bad.

When the draft rules came out, at 210 pages, I wondered why Wendy and others were suddenly silent on the page length.

Last week, as you may have heard, Pai's actual final rules were released... and the full document weighs in at 539 pages. Again, those are not the actual rules. Those are just the rules, the legally required (and very detailed) explanation of the rules and all the Commissioners' statements. And guess who's suddenly angry about people misrepresenting why the new document is so long? Why, it's our old buddy, Mike Wendy:

Wendy is correct that a big chunk of the new document is Clyburn's appendix, which are Wheeler's original order (including all the required explanatory text), but remember, Wendy didn't bother to discount similar text appended to Wheeler's order at all. Instead, he used it repeatedly to falsely imply that the rules were a complicated 400 pages of burdensome regulations. Remember "400 pages, 1777 footnotes of "simple" Title II. Sure, Kev" from Wendy? But now, suddenly, it's nitpick, nitpick, nitpick about which parts are in favor and which parts are dissent. Fascinating.

To be fair, Fight for the Future similarly should not be playing up the "539 pages" for the same reasons that Wendy and other anti-neutrality folks shouldn't have played up the 400 pages. But at least unlike Wendy and others, Fight for the Future is just complaining about how bad the new rules are, not suggesting totally incorrectly, that the (false and misleading) length of the rules is somehow an indication of how "burdensome" and "complicated" the rules are.

Again, it's fine to make arguments about the actual rules (8 pages in the Wheeler order and 2 pages in the Pai order), but it should be quite clear that those who actually understand this stuff (like, say, someone who's worked in the telco policy space for decades) should acknowledge that they were absolutely full of shit in repeatedly arguing that the Wheeler rules were 400 pages. Or, if they're not willing to admit that, then why aren't they similarly complaining about the "539 pages" of the Pai "rules"? Maybe -- and I'm just spitballing here -- it's because they're total hypocrites who were happy to misrepresent the length of the rules when they didn't like them, but are now going to nitpick the specifics because using their very same argument against them would, I don't know, make them look ridiculous?

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Posted on Techdirt - 11 January 2018 @ 10:37am

Trump Doesn't Understand Surveillance Powers; House Votes To Give Him More Of It

from the surveillance-madness dept

As discussed this morning, the House voted a few hours ago on a bill to reauthorize Section 702 of the FISA Amendments Act that did not reform the widely abused surveillance rules -- other than to codify some of the power allowing them to continue to abuse it for warrantless surveillance on Americans. There was a vote on an important Amendment from Reps. Justin Amash and Zoe Lofgren that would have allowed the reauthorization of the underlying program, but (importantly) required a warrant (as per the 4th Amendment) for spying on Americans. And, unfortunately, the amendment was voted down (183-233) and the awful reauthorization passed, 256 to 164.

The fight over this bill was... weird in so many ways. There was the expected bullshit: politicians outright lying to the public, arguing that the Amash/Lofgren amendment (which again, just said that the program had to be conducted in accordance with the 4th Amendment) would somehow stop the intelligence and law enforcement community from finding terrorists (it wouldn't). Again: everyone expected that. What was weird was (1) having some of Donald Trump's loudest detractors in Congress... then argue against the Amash amendment and in favor of giving the Trump administration more power to warrantlessly spy on Americans and share that data widely among law enforcement. And (2) having President Trump tweet a series of confused tweets this morning that demonstrated that he clearly didn't know what the debate is actually about... and suggesting he was against the reauthorization, despite the fact that the White House (his White House) had issued a statement strongly supporting the reauthorization.

So despite the White House (which, last I checked is supposed to represent the views of the President) tweeted in support of Section 702, here's what the President himself tweeted early this morning:

Not surprisingly, this came just minutes after Trump's besties at Fox & Friends had complained about Section 702, and even directly said "Mr. President, this is not the way to go."

That resulted in Trump's tweet which freaked out supporters of the bill, and even had a few members of Congress suggesting delaying the vote. Of course, while Trump later when on to tweet about some other topic, hours later, he added another tweet to the original tweet above, suggesting that he was now in favor of the reauthorization:

You will be unsurprised, of course, to learn that in the hours between those tweets, Rep. Paul Ryan (who was soon to go on the floor and completely misrepresent the bill) had spoken to the President.

It's worth pointing out, of course, that both of Trump's tweets totally misrepresent the 702 program and the vote today. While there are many, many examples of abuse of Section 702 surveillance powers, there has yet to be any evidence that it was abused to do surveillance on the Trump campaign. But the second tweet is also wrong. The issue was not "foreign bad guys on foreign land" but the fact that the new bill authorizes surveillance of totally innocent people -- including American citizens at home in America -- without a warrant.

As for the other oddity: some of Trump's biggest critics in Congress -- Adam Schiff and Nancy Pelosi -- just helped to give Trump much greater surveillance powers on Americans without a warrant... despite regularly complaining that he has abused his powers.

...the most powerful member of the Democratic Caucus, House Democratic Leader Nancy Pelosi, was notably silent on the bill. If Pelosi had whipped Democrats to vote against the bill and supported the USA RIGHTS Act instead, there’s a good chance that Trump and Ryan would have failed to get their full extension. Yet, just before the floor vote today she said she would not support the USA Rights Act and shamefully voted to hand Trump exactly what he wanted.

Almost worse than Pelosi's willingness to go along with the NSA was Rep. Adam Schiff's, D-Calif., who has seen his star rise over the last year being the Democrat’s go-to voice on the Russia investigation. On CNN with Jake Tapper this weekend, Schiff talked at length how he thought Trump was abusing his power and misusing the Justice Department to go after his political enemies.

Nonetheless, Schiff was a leading driver in the House to extend the NSA's surveillance powers, and has been undercutting the more robust reforms proposed by other Democrats, like longtime Senate Intelligence Committee member Sen. Ron Wyden, for months.

So, in summary: this bill that effectively expands the power of US intelligence and law enforcement communities to spy on Americans without warrants... was supported, then opposed, then supported again by the President while demonstrating he had no idea what was in the bill... then supported by Democrats who keep warning that the President will abuse the wider surveillance powers that they are voting to give him... and then the bill passed just as expected.

This is all kinds of fucked up.

Either way, this now moves on to the Senate. And while there are some Senators who are speaking out against the reautorhization -- mainly Senators Ron Wyden, Rand Paul and Mike Lee -- it's widely believed that there's not enough 4th Amendment supporters in the Senate to stop the bad bill from getting passed as well. And, at that point, it's quite likely that the President will sign the bill, despite his own tweet complaining about the program this morning.

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Posted on Techdirt - 11 January 2018 @ 9:31am

Senator Portman Promises To Pass Bills To Harm Tech Companies If They Won't Support SESTA

from the this-is-how-you-legislate? dept

Senator Rob Portman, one of the authors of a terrible piece of legislation in SESTA, has gone on the offensive in trying to get the bill passed. He gave a rousing speech on the Senate floor, in which he (1) misrepresented his own bill, (2) misrepresented CDA 230, and (3) threatened to pass even worse legislation if more tech companies don't support SESTA.

I may not be an expert on how to legislate... but this does not seem like a good way to legislate.

Let's start with the most incredible part: the threat to pass even worse legislation if the tech industry can't support SESTA more broadly (and, remember, many of the biggest tech companies already support the bill). And, really, the main thing blocking the bill at this point is the fact that the House decided to go in a different direction with the bill, recognizing the myriad problems with SESTA. But, to Portman, it's all tech's fault, and thus this bizarre nonsensical threat:

If you don’t start cracking down on this obvious crime against humanity, which is what I believe trafficking is, I think you’re going to see much, much broader legislation to deal with the internet.

But, of course, all of the big tech companies ALREADY do "crackdown" on sex trafficking, whenever they're aware of it happening via their platforms. Notice that Portman doesn't actually name any of the tech firms as facilitating this -- he just insists they do. The only company he names, naturally, is Backpage. But he fails to mention that Backpage shut down its adult ads section due to lots of political pressure, and that the company is not immune from lawsuits for content it actually creates, and that the company is not immune from the DOJ filing a federal lawsuit, and that there's a still ongoing grand jury investigation into Backpage. In short -- existing law seems to be working just fine.

So why is Portman saying tech companies need to crack down on sex trafficking or he'll help pass an even worse law? It makes no sense, and is no way to competently legislate. It's a way to vindictively legislate in a manner that will have disastrous consequences for the internet, innovation and for free speech -- including the free speech of those who are actually working to stop sex trafficking, or who are victims who need help. SESTA makes the problem worse. Blaming intermediaries doesn't help anyone stop sex trafficking. It doesn't provide any new tools for law enforcement to go after sex traffickers. It does create incentives for tech platforms to not look to clean up their sites -- the exact opposite of what Portman is talking about above -- because it includes a "knowledge" standard. And what's the best way to avoid having knowledge? By NOT LOOKING.

It's a bad bill that will make the problem of sex trafficking worse, not better.

The rest of Portman's talk is filled with other misleading or simply wrong statements.

Here’s the tragic part of this. Not only are more and more lives being ruined, more and more heartbreaking stories, but it’s because of a federal law that provides immunity to these websites. So it comes right back here, right to these desks, right to this Congress, right to us as legislators to fix this problem—not try to smooth it over, but to actually fix the problem, which is that some of these online trafficking sites are immune from prosecution because of a federal law. It was a well-intended law. It was written 21 years ago—the Communications Decency Act.

No. It's because horrible human beings are engaged in sex trafficking, and the focus should be on tracking them down and arresting them. SESTA doesn't help with that, and in fact makes it more difficult. Also, more importantly, the immunity provided to websites by CDA 230 is limited. It doesn't apply to federal crimes (remember that federal grand jury mentioned above?). It doesn't apply to content created by the website. It doesn't apply to the people actually creating the content (i.e., the sex traffickers themselves). Why doesn't Portman admit to any of this? Because it destroys the rationale for the bill.

Ironically it was put in place, in part, to make it a crime to send pornography to kids online, but it’s been twisted and used by these trafficking sites to provide them the ability to say ‘you can’t touch us. You can’t go after us.’

Uh, Senator Portman is leaving out a key piece of all this: which is that while it's true that the CDA was put in place to make it a crime to send pornography online, that whole part of the law was thrown out as unconstitutional and a First Amendment violation. It's not that the law was "twisted." It's just that the part he's talking about was BLATANTLY A VIOLATION OF THE CONSTITUTION that Senator Portman has sworn to uphold. The part that remained of the CDA -- Section 230 -- is the part that actually encourages sites to filter, moderate or remove content by limiting liability.

SESTA changes that equation and actually removes much of the incentive to moderate the content. It creates incentives for the companies not to even look.

Part of what the law says in trying to promote the internet is that if you post somebody else’s material on your site, you’re not liable.

This wasn't to "promote the internet," it was to correctly apply basic principles of liability. You don't blame the tool. You blame the user. If a platform hosts content, you blame who created the content. Also, Portman is misprepresenting CDA 230 in the sentence above. While it's true that it does protect platforms that "post somebody's else's material," that's not the key part of it. That implies that CDA 230 is designed to protect the deliberate action of "posting somebody else's material." But the law is even more about content posted by users. In most cases, it is not the site "posting somebody else's material," it's users posting their own material. And NOTHING in the law says that those users can't be prosecuted if the material violates the law. It just says you don't blame the tool, who is the service provider hosting the material.

All we’re saying is if you know that this involves trafficking, and Senator Blumenthal talked about his experience as a prosecutor, I mean this is a high bar—the knowing standard, then you can’t get away with this.

Except the standard, as written, is not actually that high. It was improved from its even worse initial draft, but is still quite broad, and would leave tons of sites completely at risk of frivolous lawsuits.

By the way, the other side of the argument is by the tech community, some of whom support this legislation, some of whom do not. But for the people in technology who are concerned about this, I just have to tell you, I don’t get it. This is very narrowly crafted to this issue. We’re not trying to affect the freedom of the internet, just the opposite.

IT IS NOT NARROWLY CRAFTED. That's what people keep trying to explain to Portman. He can repeat "it's narrowly crafted" over and over again, and people who actually have experience with attacks on internet platforms know that, as written, it will lead to a lot of frivolous litigation and fishing expeditions -- and widespread censorship to avoid liability, along with LESS activity by platforms to moderate the content. THAT is the concern. No one who is fighting SESTA is arguing that we shouldn't go after those responsible for sex trafficking. We're explaining how this bill DOES NOT DO THAT and not only will very likely MAKE THE PROBLEM WORSE, but it will also have massive collateral damage -- including damage that will make it harder to stop sex trafficking.

And for those in the tech community who continue to oppose this legislation, I ask you to look into your hearts and think about the impact this is having on families all across the country.

Yes. That's why Portman can't name a SINGLE site other than Backpage that he claims is responsible here (and he never mentions that Backpage stopped adult ads). Because these sites do care about this issue and they don't allow or encourage sex trafficking on their platforms. So why is he asking them to "do more" when the only things in his bill will encourage these sites to "do less"? And why is he threatening to pass even worse legislation?

Is this really how Senator Portman legislates? By misrepresenting facts? By misrepresenting existing law? By misrepresenting his own bill? By misrepresenting what companies currently do? And then by threatening to pass even worse legislation if companies don't do the thing they've always done already?

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Posted on Techdirt - 10 January 2018 @ 1:33pm

Chuck Johnson Sues Twitter, Copying Dennis Prager's Lawsuit Against YouTube

from the public-square dept

Last summer, we wrote about an important Supreme Court case, Packingham v. North Carolinia, which made the fairly important ruling that the internet was so central to everyday life that courts could not ban people from the internet, even if they were convicted of a horrific crime. It was an important ruling -- but almost immediately, some people worried that some would interpret the ruling in a way to suggest that online service providers, themselves, could not kick people off of their service. That's not what the ruling actually says, but it's possible to quote it out of context to suggest as much.

And, indeed, we've started to see such cases brought against internet companies. The case Dennis Prager brought against YouTube, for example, cites Packingham to argue that it's somehow unconstitutional to filter his videos with warning labels. And now we can add famed internet troll Chuck Johnson to the list, as he's filed a lawsuit against Twitter, long after the site permanently banned Johnson from using their platform.

As we noted with the Prager/YouTube case, it's unlikely this case will go anywhere. Courts have held out, repeatedly, that platforms have the right to operate however they want regarding letting people use their services or not (the big distinction with Packingham was that was the government denying individuals access to the internet, not private operators). And there is extensive case law around Section 230 of the CDA as well, which states in fairly plain language that sites not only can filter and moderate however they want without liability, but actually encourages them to do so. There is, of course, at least some amount of irony that it was conservatives who were complaining about "bad stuff" (mainly porn) online who pushed for incentives in the CDA to get internet services to censor via filtering... and now it's "conservative" commentators like Prager and Johnson, who are suing because those sites are filtering, as is explicitly encouraged by the law.

In short, I imagine that Johnson's lawsuit against Twitter will go about as well as his lawsuit against Gawker, which didn't go very well.

The arguments in Johnson's case are the same ridiculous arguments in the Prager case. And I mean that... they're almost verbatim. Here's from the first cause of action in the Prager case:

Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces.

In YouTube, Defendants created and maintain a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum. Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function by regulating free speech within a public forum.

And from the Johsnon case:

Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces....

In Twitter, Defendant created and maintains a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum.

They're not identical, and each case fleshes out more specifics about the platform in question they're suing, but the arguments are remarkably similar (and, no, they're not using the same lawyers). Johnson's lawsuit gets particularly silly. You can read the whole thing yourself if you'd like, but it's based on the preposterous notion that Twitter has to allow everyone on their platform and can't kick people off. As with the Prager suit, this complaint makes strong reliance on the idea that Johnson was banned for his political views, rather than because he was a troll who regularly went on the attack, often accused of promoting false information or making trollishly outrageous claims.

But, even if he was banned for his political views (and, again, he wasn't), Twitter actually has the legal right to put in place just such a ban. It would be stupid and counterproductive -- which is why Twitter does not actually ban people over such things -- but it would be legal. Johnson's lawsuit even points out that Twitter's current terms of service state: "We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any or no reason." And then immediately whines that they had "no valid business reason" for banning him. First off, that's not true. There were lots of valid business reasons for banning him -- in the form of lots of users complaining about his behavior and tons of people threatening to quit Twitter if the site didn't get rid of certain trolls.

Again, though, even that doesn't impact the legal analysis here. Twitter is within its clear legal rights to remove any user from its service.

Like with the Prager case, we expect the courts not to allow this case to go very far at all. And, unlike in the Packingham case, this really is a situation where if one social media site doesn't want you, there are lots of other alternatives. Johnson told Buzzfeed (who broke the news of the lawsuit) that this was an important First Amendment case:

“This is going to be a very serious case over the freedom of the internet,” Johnson told BuzzFeed News. “And whether people have the right to say what they mean and mean what they say.”

Except... that's not what the case is actually about. Johnson is free to say whatever he wants. He is not free to force private companies to host that speech. If there is any First Amendment argument here at all, it is on Twitter's side, in that the First Amendment gives it the right to present its own site the way it wants to -- and that includes kicking off people it feels are behaving badly.

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Posted on Techdirt - 9 January 2018 @ 3:30pm

Copyright Maximalists Throw In The Towel On Term Extension; Admit That Maybe Copyright Is Too Long

from the about-fucking-time dept

Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.

Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up.

Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:

The Author's Guild, for example, "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works," a Guild spokeswoman told Ars in an email. "If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible."

The RIAA and MPAA were slightly more muted, basically saying they "are not aware" of any efforts or proposals and it's not something they're pushing:

"We are not aware of any such efforts, and it's not something we are pursuing," an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.

"While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue," the MPAA told us.

Of course, those statements are kind of funny, because they both know damn well that the only way such proposals would even be a topic for discussion is if they were pushing for them. That won't mean some nutty copyright holder won't push for an extension, but the RIAA and MPAA's recognition that they would lose (and lose spectacularly and embarrassingly) means that no such proposal is going to go anywhere.

Now, let's see what it will take to get them on board with the Authors Guild plan to start to move copyright terms in the other direction.

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Posted on Free Speech - 9 January 2018 @ 9:30am

Publisher Not At All Impressed By Trump's Defamation Threat Letter; Promises To Defend The First Amendment

from the good-luck-with-that dept

Last week we wrote about Donald Trump having a lawyer send out threatening letters to former top advisor Steve Bannon, author Michael Wolff and publisher Henry Holt & Co. over the publication of Wolff's new book, Fire and Fury about the Trump administration. The letter to Wolff and the publisher were notable for lacking a single statement that was actually claimed to be defamatory. As we've noted, that's often the hallmark of a completely bullshit defamation threat letter.

Late yesterday, the publisher responded. John Sargent, the CEO of Macmillan -- the publishing giant that owns Henry Holt & Co. -- first sent a strong letter to employees noting that the company would not back down, and then lawyer Elizabeth McNamara, representing Macmillan, from legal powerhouse Davis Wright Tremaine sent quite the impressive letter responding to Trump's demand. It's worth reading in full. The summary:

My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.

There's so much more worth quoting in the letter. It points out that Trump has the largest platform in the world to respond to anything he actually believes is false in the book. While the letter does not directly state this, the point is pretty clear. The point of defamation law is to be able to protect the powerless from having no recourse should they be defamed -- yet the President has plenty of power and can respond to anything that's actually wrong. But, tellingly, he has not done so.

As President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff, and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff's book. We have no reason to doubt -- and your letter provides no reason to change this conclusion -- that Mr. Wolff's book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the "bully pulpit" at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it. Generalized and abstract threats of libel do not provide any basis for President Trump's demand that Henry Holt and Mr. Wolff withdraw the book from public discourse. Though your letter provides a basic summary of New York libel law, tellingly, it stops short of identifying a single statement in the book that is factually false or defamatory. Instead, the letter appears to be designed to silence legitimate criticism. This is the antithesis of an actionable libel claim.

The response also points out that the letter misrepresents what Wolff claimed in order to suggest actual malice (kind of funny to see a misrepresentation being used to argue a defamatory misrepresentation...). Oh and also this:

To briefly address a few of the additional substantive claims identified in your letter, we note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for "false light invasion of privacy." As you are no doubt aware, New York does not recognize such a cause of action. Messenger ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000); Hurwitz v. US, 884 F.2d 684, 685 (2d Cir. 1989). Not only is this claim meritless; it is non-existent. In any event, it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.

As for the claims that Wolff was "inducing" Steve Bannon and others to breach their contract:

Next, your letter focuses on alleged claims for tortious interference with contractual relations and inducement of breach of contract. Yet, as your client will no doubt appreciate, timing is everything when it comes to these claims. And there is no dispute that Mr. Bannon had already communicated with Mr. Wolff freely and voluntarily well before the "notice" you have provided. Mr. Bannon plainly needed no cajoling or inducement to speak candidly with Mr. Wolff. And an after-the-fact lawyer's letter putting my clients "on notice" does not put the genie back in the bottle, much less subject Henry Holt or Mr. Wolff to liability. The law treats sources like Mr. Bannon as adults, and it is Mr. Bannon's responsibility -- not Henry Holt's or Mr. Wolff's -- to honor any contractual obligations. Indeed, your attempt to use private contracts to act as a blanket restriction on members of the government speaking to the press is a perversion of contract law and a gross violation of the First Amendment. No court would support such an attempt to silence public servants and the press.

The letter to employees is also worth reading as it talks up the importance of the First Amendment -- with citations and quotes from key important cases having to do with free speech and the First Amendment. As the letter concludes:

There is no ambiguity here. This is an underlying principle of our democracy. We cannot stand silent. We will not allow any president to achieve by intimidation what our Constitution precludes him or her from achieving in court. We need to respond strongly for Michael Wolff and his book, but also for all authors and all their books, now and in the future. And as citizens we must demand that President Trump understand and abide by the First Amendment of our Constitution.

Your move, Trump.

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Posted on Free Speech - 8 January 2018 @ 10:46am

The Gorilla Channel Satire Demonstrates The Ridiculousness Of Banning Fake News

from the gorilla-channel-hot-takes dept

If you spend much time on political Twitter -- or the more fun elements of the self-described "Weird Twitter" -- then you're probably already quite aware of the truly wonderful @pixelatedboat account. That account's biggest claim to fame is Milkshake Duck (the best absurdist encapsulation of how the internet frequently builds up some new internet superstar out of nothing, only then to discover their hero has flaws...), but the account also has a very long (and very amusing) history of posting "fake screenshots." See, for example, the one PixelatedBoat posted on New Years, satirizing Neil deGrasse Tyson:

On Thursday evening, just as everyone was going crazy over Michael Wolff's book about the Trump White House, PixelatedBoat posted an obviously satirical screenshot of it, claiming that White House staffers, at the President's demand, had created a special "Gorilla Channel" that the President watched 17 hours a day, and which they had to alter to include more gorilla fights.

Except... as you may have already heard, what seemed obvious to many of us was apparently not so obvious to those with what some have referred to as Trump Derangement Syndrome. Basically, because there actually are so many crazy stories about President Trump and his administration -- and the Wolff book was already revealing a few more of these "nutty" anecdotes -- some people were primed to accept this satire as fact... and they ran with it.

Now, let's just take a step back for a second and point out something: this is what good satire does. It fools people. When 100% of the people get the satire, it's not good satire. A large part of the point of good satire is to fool people and help make people think about things. The classic of this genre, of course, Jonathan's Swift's A Modest Proposal, in which he merely suggested feeding poor children to the wealthy as a way to alleviate the problems of poverty. It was, of course, a powerful way to mock the attitudes some had towards the poor. And, a lot of people thought he was serious. That's part of why we still remember the work today, centuries later.

And, with PixelatedBoat's tweet... a fairly large number of people -- including some "high profile" Twitter users -- completely fell for it, which then quickly led others to mocking them. Even in cases where some people initially realized it was fake... they began to question themselves. Perhaps my favorite response was from the NY Times' Farhad Manjoo (who is a super nice person... but... really...)

Manjoo then told everyone to stop posting satirical fake screenshots, which seems like a bit of hole digging:

But that's wrong. Satire is an extremely powerful force in getting people to think more carefully about a variety of different social issues -- and whether intentional or not, PixleatedBoat's tweet did exactly that.

But, what's much more interesting to me is how this impacts two other recent stories. First, last week we wrote about French President Macron's awful idea to "ban fake news" in France during election seasons. And, second, Germany's new "social media platforms must delete bad speech" law, which has already been used to go after satire on social media.

As Fabio Chiusi noted, if the whole Gorilla Channel PixelatedBoat saga had played out in Germany, Twitter might be facing a €50 million fine (and its employees a €5 million fine). And that doesn't even get to the situation in France. After all, this satire is "fake news." It literally is exactly that. But it's also a perfect example of why banning fake news is so dumb. Beyond the difficulty of determining what really is fake news, there is plenty of "fake news" that we want to protect. And satire is a big part of it.

I mean, banning "fake news" would require shutting down The Onion. Sure, you may know its satire -- but others get fooled by The Onion all the time. And that's part of the fun -- in part because it can spark discussions, debate and (*gasp*) actual introspection. Under the rules being pushed in Europe right now (and which some in the US would like to emulate), banning or punishing satire would cripple some of the best social commentary out there. "A Modest Proposal" may have made some people angry, but it made many more think. Just because some people get fooled isn't a reason to ban such things or to push for censorship. It's a reason to encourage discussion, debate, introspection and learning -- which is often pushed forward thanks to satire.

Now, when's that Gorilla Channel going to be available to the wider public?

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Posted on Free Speech - 8 January 2018 @ 9:37am

By Complaining About US's 'Very Weak' Libel Laws, Trump Is Actually Shitting On Our 'Very Strong' First Amendmet

from the free-speech-is-a-thing,-buddy dept

As you likely recall, last week, lawyer Charles Harder* sent a letter on behalf of Donald Trump threatening to sue former advisor Steve Bannon, author Michael Wolff, and publisher Henry Holt for defamation having to do with the publication of Wolff's new book about Trump. The full letter to Wolff and Henry Holt & Co. was published by the Hollywood Reporter and does not list out any statements that are claimed to be defamatory -- which is often a hallmark of a totally bumptious defamation threat.

Over the weekend, during a press conference, Trump appeared to admit that he can't actually sue for defamation. In the midst of a Trumpian ramble in response to a question about the book, he includes the following:

I consider it a work of fiction and I think it's a disgrace that someone's able to have something, do something like that. The libel laws are very weak in this country. If they were strong, it would be very helpful. You wouldn't have things like that happen where you can say whatever comes to your head.

This isn't the first time, of course, that Trump has made similar comments. Early in 2016, while on the campaign trail, he famously promised to "open up the libel laws" in order to sue his critics. And, going back even further, Trump has complained about US libel laws in reference to a case he lost, where he sued a writer who said Trump wasn't really as rich as Trump claimed (Trump lost that lawsuit, no matter what his tweet here says):

For a brief moment, after the election, Trump seemed to realize that "opening up" libel laws might come back to bite him. In an interview with the NY Times he backtracked on his feelings towards US defamation law:

Mark Thompson: [A]fter all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?

Trump: Oh, I was hoping he wasn't going to say that. I think you'll be happy. I think you'll be happy. Actually, somebody said to me on that, they said, 'You know, it's a great idea, softening up those laws, but you may get sued a lot more.' I said, 'You know, you're right, I never thought about that.' I said, 'You know, I have to start thinking about that.' So, I, I think you'll be O.K. I think you're going to be fine.

Defamation law is state-based, so the President can't actually do anything to change those laws directly (indirectly is another story, but it's still difficult). But, really, Thompson's question is the key point here. He's asking about the First Amendment of the Constitution. The Constitution that the President is under oath to uphold and defend. And yet, the President is now suddenly upset.

And let's be clear: when the President complains about our "weak libel laws" and says he'd prefer it if people couldn't "say whatever comes to your head" he's not actually complaining about our weak libel laws: he's complaining about our strong First Amendment protections of free expression. And this is particularly ridiculous when we still have Trump supporters insisting that "Donald Trump has single-handedly brought back free speech" because he's made fun of political correctness a couple times.

However, Trump has made it quite clear that he's not a fan of the First Amendment when it lets people criticize him. And he's not a fan of the First Amendment when people he doesn't like are protesting. People shouldn't let him get off the hook by saying he's complaining about "weak libel laws." That's not the problem at all. The US's libel laws are not weak. Our First Amendment protections are strong -- as they should be -- and as President, he's supposed to be defending that Constitution, not complaining about how it exposes him to mild criticism.

* Harder is a lawyer for the plaintiff in the still-ongoing lawsuit against us.

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Posted on Free Speech - 5 January 2018 @ 1:38pm

Really Bad Ideas: French President Macron Wants To Ban 'Fake News' During The Election

from the now-define-it dept

French President Emmanuel Macron was held up by some in the tech industry as a moderate who "got technology" leading up to his election. And yet, every time he seems to weigh in on tech related issues, it's with an absolutely terrible take on it. He wanted to mandate encryption backdoors and demand internet censorship of "radicals" online who post "inflammatory content." And now he's expanding that position and saying he wants to ban "fake news" during election season.

In his new year’s speech to journalists at the &‌Eacute;lys&‌eacute;e palace, Macron said he would shortly present the new law in order to fight the spread of fake news, which he said threatened liberal democracies.

New legislation for websites would include more transparency about sponsored content. Under the new law, websites would have to say who is financing them and the amount of money for sponsored content would be capped.

For fake news published during election seasons, an emergency legal action could allow authorities to remove that content or even block the website, Macron said. “If we want to protect liberal democracies, we must be strong and have clear rules,” he added.

The transparency idea isn't such a bad one (though the details would matter quite a bit), but it's unclear why the amount of money for sponsored content should be capped if it's clearly labeled and disclosed. But the really troubling part is that last one, allowing for "emergency legal action" to remove content. It may not be surprising that Macron is saying this about fake news -- since there were reports of a burst of fake new campaigns that tried to influence the French electorate to vote against Macron in the election.

But, as we've discussed many, many times -- the idea of government-mandated censorship, even if for the idea of stopping "fake news" is a terrible idea. It will be abused and abused badly. Remember, while the term "fake news" was first popularized by people who were upset about Donald Trump's election, he's now co-opted the term and uses it to argue that any media report that makes him look bad is "fake news." Imagine what a Trump or a French Trump-like figure would do with this kind of power?

A big part of the problem, obviously, is that "fake news" means different things to different people, and whoever has the power to order such content taken down will have plenty of opportunities to abuse that power -- such as to take down news that is merely unflattering to those in power. Or, even on a more subtle level, what if an unflattering story has a few small errors or misrepresentations. Claim "fake news" and make it disappear. This eagerness of so many to immediately leap to "censor it!" as the only possible response to propaganda is highly troubling -- and most certainly goes against the French ideals of freedom.

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