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Posted on Techdirt - 26 September 2016 @ 11:43am

Movie Theater Security Guards Assault Women, Claim They Were Pirating Movie

from the has-it-really-come-to-this? dept

It's well-known that the big studios and the MPAA like to indoctrinate movie theater employees into believing that there's a horrible menace of people trying to pirate movies in the theaters, and that in some cases, they even hand out money to employees who "catch" pirates in the act. In general, all this really does is make it less enjoyable to go to the movies -- and sometimes leads to elderly patrons being ejected from theaters because some kid is totally sure she's pirating the film she's watching.

And the latest example is even more extreme, where private security forces apparently decided to assault a couple of Toronto women they falsely accused of pirating a showing of The Magnificent 7. One of the women, Jean Telfer, says she actually decided to leave the film early because she found it too violent. Apparently the idea that a pirate probably wouldn't be leaving in the middle of a film didn't occur to the geniuses Sony Pictures had specifically hired to "guard" the showing. So they tackled Telfer. Really.

Halfway through the film, Telfer decided to leave because she found the movie to be too violent.

“When I left the theatre I heard someone yelling behind me, ‘Sir! Sir!’ I didn’t think much of it,” said Telfer.

“Out of nowhere I felt someone grab me from behind. My reaction [was] to get this person off of me. Unfortunately it did escalate and he did somehow get on top of me.”
Bizarrely, despite all of that, the guy who tackled her never told her why and then just let her go. But when her friend, Elaine Wong, also went to leave, the experience was a bit different.
Wong, unaware of what had happened to her friend, left the theatre shortly after to find Telfer.

Wong said a guard approached her and little explanation was given except that the security guards had been watching them all night and that something on the guards’ heat sensor guns had gone off. She added that they attempted to search her bag.
Wong noted that they left right before the action really started, and if they were trying to pirate a movie, you'd think they'd "wait until a lot of people start dying." Eventually both Telfer and Wong were told to remain with security until the police arrived -- though after a while when no police arrived, they were apparently let go. The two did decide to file a police report of their own, arguing that they had been illegally assaulted by security at the theater.

In some tweets, Wong notes that they demanded to search her bag, and also demanded to know why they were leaving early -- as if that were some sort of "sign" of piracy in action (though she refers to the guy as being from Disney, the news reports say he was hired by Sony).
Once again, I fail to see how treating regular customers as criminals helps Hollywood convince more people to pay to see movies. It likely has the reverse effect.

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Posted on Techdirt - 26 September 2016 @ 8:34am

The Weird Psychology Of People Fighting Those Who Resell Their Products

from the why-do-this? dept

Every so often, we hear a story about actions taken by someone who is just so upset about someone else doing something that it seems to border on obsessive. For example, when we hear about copyright holders who spend all their time sending DMCA takedowns -- while whining about how they're unable to produce new content and aren't making any money from sending all those takedowns. The obvious response is: maybe stop sending all those takedowns and focus on something that's actually productive, like creating new works and building a fan base willing to support you.

Recently, the Planet Money podcast had an episode with a similar story but in a different realm -- but it was just as stupid and wasteful. It was about this entrepreneurial couple who had created a cat toy product, which was becoming fairly successful through selling it on Amazon. And yet, they were completely freaked out by arbitrageurs. These weren't pirates or counterfeiters. Rather, they discovered that people were posting their cat toy to eBay (for a lot more money), and if someone bought, they'd just order it from Amazon, and have it ship directly to the buyer. I've heard of people having this happen to them -- where they'd order from one place and receive a shipment from Amazon instead (sometimes with the actual invoice price included...).

This is all perfectly legal. There's no law against reselling products. It's just arbitrage. But the couple, Fred and Natasha Ruckel, freaked out about this and spent a ton of time every day sending cease-and-desist letters to these eBay sellers.

First thing in the morning, check for arbitrageurs. Last thing at night, check for arbitrageurs, send out any cease and desists before or after. It was taking up an inordinate amount of time, and it was super stressful.
Ruckel does make a few valid points: the eBay arbitrageurs provide a less satisfying experience -- their sales pages don't look great and Ruckel wishes to have a better experience for the customers to boost brand loyalty. On top of that, the even more valid concern is that when people order via eBay for $60 and receive a box from Amazon showing the price was $40... they get pissed off. And often they return the product, and that leads to restocking fees that Ruckel has to pay -- plus just general hassle. That part is a valid concern, but from all indications this was still making them money.

And if it was really taking up so much time to send out these cease and desist letters -- and it was "super stressful" why not just drop it altogether? Why bother? Just focus on selling your products. Or, hell, just put your own product up on eBay. To be fair, while this is not mentioned in the podcast, in an article in Entrepreneur Magazine about this same story, it does note that he tried, briefly, to put the product up on eBay too, but whines that people still copied him:
This summer, Ruckel tried a new approach: He put his own product on eBay and titled it “All other eBay sellers are fake.” A few weeks later, he stumbled upon an eBay listing with a familiar title. “All other eBay sellers are fake,” it said. It wasn’t his, of course.

Someone had copied that, too.
But, uh, so what? Assuming that he posted them to eBay with the same price as his Amazon sales, then there shouldn't be a problem. All the arbitrageurs should be driven out of business, since his would be priced lower than the arbitrageurs. So who cares if they claim to be the legit provider, when people would likely flock to the cheapest one anyway? Nothing in this story makes sense.

Especially this last part. Ruckel apparently got so frustrated with the "stress" of dealing with arbitrageurs, that he yanked his stuff off of Amazon entirely... and saw his sales drop drastically.
We pulled out of the whole Prime shipping thing in May. And at that point, we were over 60,000 a month in sales. And in a blink, 60,000 went down to 25,000.
Planet Money asks them if it was worth it -- and they said that it was. Because "integrity."
F RUCKEL: Integrity is important to us.

N RUCKEL: And the stress factor...

F RUCKEL: And the stress...

N RUCKEL: ...Was completely removed.

F RUCKEL: So we removed all the stress.
Yeah, and you also removed more than half your business. Again, this reminds me of the person who claimed they were "wasting" half of their royalties sending DMCA takedown notices that weren't effective. Why do that? Why kill your sales just because someone else figured out a way to resell your product better than you have?

There's some weird psychology going on here. It reminds me of the classic economics class game, whereby two students (Student A and Student B) are selected by the professor, and Student A is given $10 and told to share some of it with Student B -- but if Student B rejects Student A's offer, then no one gets any money. Under such conditions, even if Student A offers Student B just $1 (keeping $9), Student B should take it. Both of them are better off than getting nothing. And yet, time and time again, Student B rejects offers that are seen as "too small." Basically, they feel insulted, cheated or ripped off -- even though that's ridiculous. It's a weird attempt to insert a "fairness standard" where it doesn't make any sense, and where "punishing" Student A is more "valuable" to Student B than the small payout.

It feels like something similar must be happening here. People like the Ruckels would prefer to punish others, making their own product harder to find and more difficult to buy, than to allow anyone else to possibly benefit from it. I get that it happens, but it still confuses me to no end why anyone could possibly think it's a good result.

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Posted on Techdirt - 26 September 2016 @ 6:33am

Congressional Rep Mike Honda Sues Challenger Ro Khanna For CFAA Violation Over Access To His Donor List

from the oh-boy dept

So, the CFAA strikes again, and this time right in the heart of a Silicon Valley political fight. If you live in or around the Silicon Valley tech industry, you probably know who Ro Khanna is. He's often been described as the "candidate for Congress that Silicon Valley prefers." It feels like he's been running for Congress against incumbent Rep. Mike Honda forever, but it's really just in the past two elections. Here's a big Bloomberg profile of him from 2013 when he first challenged Honda, losing narrowly to him in the 2014 election, despite having support from many Silicon Valley tech industry stars. This year, he's running again, and in the primary, Khanna narrowly beat Honda, suggesting good things in the general election in November (the top two candidates in the open primary move on to the general election, regardless of party).

Khanna is known for his pro-internet views, while Honda has a reputation for not really understanding or caring very much about the internet.

And now... Honda has sued Khanna under one of the most hated laws on the internet, the CFAA (Computer Fraud & Abuse Act). As we've discussed for many years, the CFAA was supposed to be an "anti-hacking law" that was created by politicians who were (literally, no joke) scared by the fictional movie War Games into writing an anti-hacking law in the 1980s. The law has many, many, many problems, but the biggest one, which comes up again and again in cases, is that it has a vague standard of "unauthorized access" or "exceeding authorized access."

Not surprisingly, that's the issue in this case as well. In short, Brian Parvizshahi was (until Thursday night) Khanna's campaign manager. Way back in 2012, Parvizshahi had briefly (as in, for just a few weeks) worked at Arum Group, an organization that helped Mike Honda with fundraising. After he left Arum Group, apparently no one at the company thought to turn off his access to the Dropbox where they stored all their info about donors. Now, to most people, you'd think that the issue here would be Arum Group's bad policies. But, under the CFAA some can argue that continuing to access that file is a form of "unauthorized access."

And that's the central claim here in the lawsuit. Honda claims that Parvizshahi continued to access that Dropbox folder that he was given access to four years ago and which Arum Group never shut down -- and thus he, and the whole Khanna campaign -- violated the CFAA. You can see the full filing here.

Now, we can say that Parvizshahi continually accessing this info -- especially after starting to work for Khanna -- was really, really dumb. Especially since his actions were clearly viewable in Dropbox -- including cases where he supposedly "edited" the files. From the lawsuit, here's just one of many, many images:

It is worth noting, though, that some of the screenshots merely show Parvizshahi "adding" the document to his desktop, which might have happened automatically if he was syncing his Dropbox account to his computer, which is the way many people set things up.

One other sketchy thing here is that someone sent a copy of Honda's donor list to San Jose Inside magazine in late 2015 -- and apparently the file they got matched a file in the Dropbox folder that Parvizshahi had accessed.

So while it may have been dumb for him to do so, the real fault here would seem to lie with Arum Group for (1) giving Parvizshahi access on what appears to be his personal Dropbox account, rather than adding a professional account that it controlled and (2) failing to revoke his access after Parvizshahi left, and not even noticing it for years. That seems to be the really negligent move here.

But, with the way courts have been interpreting the CFAA, it does seem entirely possible (if ridiculous) that a California court could interpret this to be a CFAA violation for Parvizshahi at the very least. If that also applies to Khanna, that would seem doubly ridiculous. Either way, as far as I can tell, while Khanna has taken a position on a number of issues related to tech policy, I don't see anything about the CFAA. Perhaps this particular episode will change that.

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Posted on Techdirt - 23 September 2016 @ 7:39pm

Arguments Over Internet Governance Transition Get Even More Stupid

from the make-it-stop dept

So, yesterday, we noted that the Senate at least seemed to come (at least somewhat) to its senses in choosing not to include the ridiculous and dangerous proposal from Ted Cruz (and supported by Donald Trump) to block the transition of the IANA functions of internet governance away from the Commerce Department. I won't go into (once again) why this is important and not a problem, or even why Cruz's objections to it are so backwards that his plan will actually make it more likely that the "bad" result he keeps warning about will actually come to pass. You can reread the older articles on that.

However, with Democrats complaining about the Senate's Continuing Resolution and a vote on it being pushed off, the debate over the possibility of blocking the transition is still going on. Hell, Ted Cruz even pointed to Donald Trump's support of his plan as a reason to finally endorse Trump:

Internet freedom. Clinton supports Obama’s plan to hand over control of the Internet to an international community of stakeholders, including Russia, China, and Iran. Just this week, Trump came out strongly against that plan, and in support of free speech online.
Except, none of that is true. First, the plan does not hand over control to Russia, China and Iran -- and keeping IANA under the Commerce Dept. makes it A LOT MORE LIKELY that that coalition of countries is able to grab control of the IANA functions from ICANN and the US. But, uh, even more importantly, claiming that Trump is in favor of "free speech online" is laughable. This is the candidate who has repeatedly talked about "opening up our libel laws" to go after speech he doesn't like, has threatened to sue many publications for protected speech, and has flat out declared that we should turn off parts of the internet and anyone who responded with "freedom of speech" was "foolish."
But, that's still not the craziest argument I've heard recently concerning the transition. The award there goes to Theresa Payton, who was a top IT staffer at the White House under George W. Bush and now runs a "cybersecurity" firm. She wrote a bizarre opinion piece in The Hill that, frankly, calls into question whether she understands what ICANN even does. She tries to argue that the transition will somehow make it easier for Russia to hack our election... because [reasons].
Changing who controls the Internet Corporation for Assigned Names and Numbers (ICANN) so close to our presidential election will jeopardize the results of how you vote on Nov. 8 unless Congress stops this changeover. When the calendar hits Sept. 30, a mere 6 weeks before our election, the United States cannot be assured that if any web site is hacked, the responsible party will be held accountable. We cannot be sure if a web site is a valid. We cannot be sure if one country is being favored over another. These are all the things ICANN is responsible for and has worked perfectly since the Internet was created. Why change it now and so close to the election? Why does that matter to you as a voter?

Take a look at recent cyber activity as it relates to the election. The Democratic National Convention was breached comprising the entire party’s strategy, donor base, and indeed, national convention. Everything the DNC had done to prepare for a moment four years in the making (if not longer) was undermined by a hacker who had been in their system for some time but waited for the optimal moment to spring it on the DNC – opening day of the convention. The FBI and other U.S. agencies, as the headlines blare, suspect Russia is responsible for the hack. Recently, Vladimir Putin went so far as to say, "Does it matter who broke in? Surely what's important is the content of what was released to the public.”
Except, uh, ICANN has nothing to do with figuring out who hacks who. Nor is it the party that's figuring out if one country "is being favored over another" or if a "website is valid." That's not ICANN's job, and has nothing to do whatsoever with the IANA transition -- which will leave the internet working exactly as it has before. Honestly, this opinion piece does nothing to call the transition into question, but does a tremendous job in calling Theresa Payton's knowledge of technology and cybersecurity into question.
ICANN does more than just assign and/or approve your website’s domain. ICANN has its own Security and Stability Advisory Committee, which “engages in ongoing threat assessment and risk analysis of the Internet naming and address allocation services to assess where the principal threats to stability and security lie, and advises the ICANN community accordingly.” They are equivalent to your security guard at the bank. Why change the security guard now when voter data is more vulnerable – and prized - than ever?

If ICANN changes hands, so do the security measures taken to protect the rightful owner of your web site. If a site was hijacked today – not an uncommon crime in the cyber world - to reassert yourself as the rightful owner, you would go through law enforcement channels, your domain provider, and yes, ICANN.
First of all, the "transition" in question isn't about transitioning all of ICANN. Just its IANA functions, which only have a symbolic connection to the US government. Second, Payton seems to not understand what ICANN does, what the ICANN SSAC does, or how internet security works. They are not the equivalent of the "security guard at the bank." You'd think the CEO and founder of a "cybersecurity" company would know that. And, after the IANA transition takes place, ICANN itself doesn't "change hands" nor does it change what the SSAC does, which isn't anything even remotely close to what Payton seems to think it does.

Don't trust me? How about Stephen Crocker, who heads ICANN's Board of Directors -- and also helped create the damn internet. You know how much of the internet was designed through "RFCs" -- "Requests for Comments" -- well, Crocker invented the RFC and wrote the very first one. I think he knows what he's talking about. And he and the head of ICANN's SSAC, Patrik Fallstrom, have responded to Payton with a nicer version of "you have no idea what you're talking about."
The SSAC is not a “security guard” for the Internet. The SSAC has no enforcement power, and the value of its advice is based on the strength of the facts underlying such advice.

The Security and Stability Advisory Committee advises the ICANN community and Board on matters relating to the security and integrity of the Internet's naming and address allocation systems. Our recent work include advisories on a wide range of topics such as internationalized domain names, protecting domain name owners and operators, best practices for domain name registrars, analysis on the changing nature of IPv4 address semantics, and advice on matters pertaining to the correct and reliable operation of the root name system and other issues (see https://ssac.icann.org/ for more details). The SSAC neither operates as a security guard for the Internet, nor does it aspire to.

The IANA transition has no practical effect on the work and activities of the SSAC. Nor does the transition have any effect on the security and stability of website owners worldwide. The risk of compromise of a website owner does not increase as a result of the IANA transition, since ICANN and IANA do not control either the ownership of websites or the content on websites. Leading technical experts, industry associations, and civil society groups agree that allowing the IANA contract to expire is the best possible way to protect and promote the continued integrity of the Internet.

There is simply no relationship between ICANN and the current U.S. election process. Assertions of this sort are misleading and irresponsible. On the other hand, attempt to connect ICANN to the U.S. political process play directly into the hands of the enemies of an open Internet who would like to see ICANN and other Internet bodies put under the control of the United Nations or, worse yet, broken up into separate, government-controlled networks that do not interoperate smoothly around the world.
So, yeah. It seems that as we get closer to the transition, and since this issue has become "political," we're seeing stupider and ever more clueless attacks -- but they seem to only serve to make the people behind them look worse and worse. This shouldn't be a partisan issue. It shouldn't be a political issue. It shouldn't be an issue. Severing the minor link connection between IANA and the Commerce Department changes nothing practical in how the internet is governed, but takes a big weapon away from Russia and China in their quest to take control over those functions.

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Posted on Techdirt - 23 September 2016 @ 8:40am

Journalists Blaming Facebook For Decline Is Just As Tiresome As When They Blamed Craigslist & Google

from the time-to-innovate dept

The Guardian's Roy Greenslade recently published a column about "why Facebook is public enemy number one for newspapers in journalism." It's a bunch of complete nonsense. I won't go through the whole thing, but here's just a snippet:

Facebook’s increasing dominance over advertising is causing the laying off of journalists, the people who produce the news that it transmits to its users.

The logical conclusion to that process is not only the destruction of old media, legacy media, mainstream media, whatever you want to call it, but the end of journalism as we know it.
Yeah. Okay. Let's be clear: this is bullshit. As Ben Thompson pointed out, the decline of newspaper revenue predates Facebook, by a lot:
Indeed, it seems that as newspaper revenue has declined, screaming newspaper reporters have been looking for a "dot com" to blame, every step of the way, rather than looking inwardly at their own failures to adapt to a changing marketplace. I remember, not too long ago, when it wasn't Facebook that was killing the news business, but Craigslist. I mean, everyone said it was true: And, of course, after it was all Craigslist's fault, it was, undoubtedly, the fault of Google and its Google News product. That's why Europe is so busy trying to force Google to pay for newspapers that it links to. And, of course, once again, lots of media folks jumped on the blame Google bandwagon: A few notes on some of the above links. The "study" that is cited in some of the first batch about how Craigslist is "killing" newspapers was from the Pew Research Center -- the very same research shop that Greenslade points to in the link up at the top of this article blaming Facebook. Second, that first article in the second list, about Bob Woodward blaming Google... is also by Greenslade. Yet, in that case, Greenslade mocks Woodward for blaming Google (and very kindly provides a link to me mocking Woodward's silly claims.

So let's get a few things out of the way here: Newspapers are struggling. They absolutely are. But it's not "because" of Facebook (or Craigslist or Google). Newspapers were going to struggle with the rise of the internet no matter what, because it laid bare the basic coincidence that made newspapers profitable despite themselves. For many, many years, we've been pointing out that the true business of newspapers was a community business, rather than a news business. It's just that in the pre-internet days, newspapers had a bit of a monopoly on being able to build communities -- often local communities -- around the news. But they had very little competition in that business, other than maybe a few other local newspapers (though consolidation took care of that in most markets). The business, then, of newspapers was taking the attention they received from that community, and selling it to advertisers.

The internet structurally changed all of this, by creating all sorts of other areas where people could congregate and build communities. That's kind of what the internet is good at. And suddenly there's a ton of competition in the community space. But newspapers, incorrectly thinking they were in the "news" business, often made decisions that actively harmed the community aspect. They put up paywalls. They took away the ability to comment. They made it harder for local communities of interest to form.

So what happened? The communities and their (valuable) attention went elsewhere. And, these days, much of that "elsewhere" when it comes to communities is Facebook.

And, just like Google before it, Facebook has actually created a pretty valuable channel for sending people to your news website. Many publishers haven't figured this out yet -- or how to harness it. Hell, just a month or so ago, I was talking about how we here at Techdirt haven't figured this out at all (we get depressingly little traffic from Facebook compared to many of our peers). But you won't see us blaming Facebook for this. It's on us. Have our ad rates dropped off a cliff? Yes. Is that Facebook's fault? Hell no. Even if all the advertising money that used to go to newspapers and news sites magically shifted to Facebook (which it hasn't), then it would be because of a failure on the part of those news companies to offer a better overall product for advertisers.

It's time for publications to stop blaming every new technology site that comes along, and to focus on actually adapting, changing and finding new business models that work. It may not be easy. And many will crash and burn completely. But that's not the "fault" of these new companies at all.

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Posted on Techdirt - 22 September 2016 @ 1:01pm

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Posted on Techdirt - 22 September 2016 @ 11:41am

Senate Comes To Its Senses: Does NOT Support Ted Cruz's Plan To Block Internet Governance Transition

from the crisis-averted dept

So, just a few hours ago, the reports were still spreading that the Senate would absolutely include Ted Cruz's preferred language that would block the (largely symbolic, but really important) transfer of control over the IANA functions of ICANN away from the Commerce Department. We've explained over and over and over again why this is important -- including once this morning in response to Donald Trump suddenly taking a stand (an incredibly ignorant one, but a stand) on the issue.

And then... poof. The Senate Appropriations Committee released its "short term continuing resolution" (CR for short) and it does not include any language on blocking the IANA transition. So... all the talk and (misleading) hype was apparently a bunch of grandstanding and hot air over nothing. It may have just been posturing and used to negotiate something else. Or, maybe (just maybe) people who actually understood what was happening with the IANA transition were actually able to explain to those in charge how stupid all this rhetoric was. That would certainly be a nice explanation for this -- though it seems tragically unlikely.

But, for the short term, this means a very dangerous thing for the internet, pushed for by Ted Cruz (and, as of yesterday, Donald Trump) has been avoided. It's possible that the House could try to somehow move to block the transition, but that seems unlikely. So, we may have actually won one here and narrowly avoided political grandstanding mucking up a piece of the internet. Phew.

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Posted on Techdirt - 22 September 2016 @ 9:38am

Law Professor Mark Lemley: Hollywood Is Simply Wrong About FCC's Set Top Box Plan

from the not-a-copyright-issue dept

We've been discussing for a while now about how the MPAA, with the help of the Copyright Office, has been propping up the complete myth that the FCC's plan to create more competition in the cable set top box space involves violating the copyrights of studios. It's a complete myth. The cable industry has been leading the charge here, mainly because it makes billions of dollars by charging people to "rent" its crappy boxes. But it found a strong ally in copyright maximalists who have repeatedly misrepresented the proposal. As we noted, the Copyright Office put out a report that flat out lied about what the FCC's proposal entailed and about how copyright itself works (arguing that contracts between two third parties could somehow eliminate the fair use rights of private citizens). And, incredibly, the basic argument being put forth by copyright maximalists, if taken to its logical conclusion, would mean that VCRs and DVRs are illegal too.

That's not how copyright law actually works -- but the message has caught on, and the FCC has already been forced to weaken its proposal -- and the industry is still bitching about it.

Thankfully, we're finally starting to see some copyright experts speak up about just how wrong Hollywood and the Copyright Office are on this. Mark Lemley, by far the most cited intellectual property professor (who is also a practicing lawyer), has written up a piece for the Hill that rips to shreds the idea that the FCC's plan somehow would implicate Hollywood's copyrights. As he notes, they're totally overstating what copyright allows:

The MPAA’s argument that studios have the right to control the device on which you view your content reflects a fundamental misunderstanding of copyright law. Copyright gives its owner the right to control the making of copies and public performances of a work. But it does not give them control over any use of a work. That’s no accident. Once the copyright owner has been paid once for a particular copy, its control over that copy ends. That’s why I can lend a book to friends, or sell my used record collection outright.

True, there are some things I can ‘t do even with a copy of a movie or song I own. I can’t upload it on a file-sharing site, for instance, and I can’t play it on the radio. But that’s because doing those things either makes a new copy or makes a new, public performance of the work.

The studios have already been paid for the movies shown on a cable or satellite service. Indeed, they’ve been paid specifically for the right to publicly perform the work by transmitting it to my (and everyone else’s) home.

And here, copyright law says something very important to copyright owners: that’s all you get. Once the cable companies have paid the MPAA for the right to deliver their movie into my home, the MPAA loses control over how I choose to watch their movie in the privacy of my own home. I can record it on a DVR and watch it whenever I want. I can watch it on a big-screen TV or a small one, with the sound on or off, in one sitting or many, while fast-forwarding through parts I don’t like or rewinding to rewatch parts I do. I can watch it again and again. Most important, I can watch it on any device I want, including my computer, my iPad, or my phone.
And, while the MPAA and its supporters keep calling the FCC proposal a "compulsory license," Lemley points out that it's not a compulsory license that lets you record a TV program to your VCR or DVR, and neither is this:
That isn’t a “compulsory license” of copyrights; it’s a limit on the scope of those rights. That limit exists even if copyright owners try to declare that it doesn’t. This is the law. It has always been the law. Every effort by copyright owners to control how I watch a show in my own home has ended in failure.
Unfortunately, this blatantly false attack by Hollywood and the Copyright Office on the FCC's plan has been effective. It seems unlikely that the plan will go through, and what's troubling about it is that it's all based on flat-out falsehoods by Hollywood, the Copyright Office and its supporters.

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Posted on Techdirt - 22 September 2016 @ 8:25am

Donald Trump Doubles Down On Ted Cruz's Blatantly Confused And Backwards Argument Over Internet Governance

from the let-that-transition-go dept

We've been explaining this since it was first proposed two years ago: but the IANA transfer away from the Commerce Dept. is a good thing on a variety of important levels. Earlier this year, we did a more thorough explaination on why it was a good thing, and then a further post earlier this month explained why Ted Cruz, who was leading the charge in blocking the transition, was basically wrong on every point about it. And not just wrong, dangerously so. Cruz keeps claiming that the transition makes it easier for Russia, China and the UN to "take control" over internet governance. The exact opposite is true. But we'll get there.

I was working on another post about some of the issues related to this... and while I was working on it Donald Trump decided to turn this into a Presidential campaign issue by releasing a statement more or less echoing Cruz's factually incoherent position:

"Donald J. Trump is committed to preserving Internet freedom for the American people and citizens all over the world. The U.S. should not turn control of the Internet over to the United Nations and the international community. President Obama intends to do so on his own authority – just 10 days from now, on October 1st, unless Congress acts quickly to stop him. The Republicans in Congress are admirably leading a fight to save the Internet this week, and need all the help the American people can give them to be successful. Hillary Clinton’s Democrats are refusing to protect the American people by not protecting the Internet.

The U.S. created, developed and expanded the Internet across the globe. U.S. oversight has kept the Internet free and open without government censorship – a fundamental American value rooted in our Constitution’s Free Speech clause. Internet freedom is now at risk with the President’s intent to cede control to international interests, including countries like China and Russia, which have a long track record of trying to impose online censorship. Congress needs to act, or Internet freedom will be lost for good, since there will be no way to make it great again once it is lost." - Stephen Miller, National Policy Director
First of all, here's Trump going on and on about "internet freedom" and "free speech." And yet... this is the very same candidate just a few months ago who talked about "shutting down parts of the internet" and mocking those who would say "oh freedom of speech" claiming anyone who fell back on that claim were "foolish people."
So, apparently it's okay to shut down parts of the internet, and those talking about free speech are "foolish people," but a symbolic effort over who controls the domain name system must be stopped because internet freedom and free speech are too important.

More importantly, almost everything the Trump campaign says in those two short paragraphs about the transition is wrong. And it's a really, really stupid and dangerous position to take for the internet. First off, as we've explained, the current link between the Commerce Department and ICANN and its IANA functions is more theoretical than real anyway. The US government really doesn't have any official control here. It's symbolic and that symbolism is doing a hell of a lot more to hurt the internet than to help it. Yes, Russia and China have, in the past, tried to take more control over internet governance via the UN/ITU, but that was stopped. But -- and this is the important part -- a big part of their rationale for trying to do so was the US's "control" over IANA via the Commerce Dept. That is, keeping this small bit of internet governance loosely connected to the US government adds fuel to the fire for authoritarian governments to seek more control over the internet. And that doesn't even get into the backlash that it will create if we go back on our word and refuse to complete the transfer of IANA away from the Commerce Dept (again, a largely symbolic move anyway).

But, don't trust me. Trust basically anyone and everyone with any actual knowledge on the situation. Here's Tim Berners-Lee, the guy who invented the web itself, explaining why the transition must go forward and why Cruz (and, by extension now, Trump) are totally wrong:
The global consensus at the heart of the Internet exists by virtue of trust built up over decades with people from all over the world collaborating on the technical design and operation of the network and the web. ICANN is a critical part of this global consensus. But if the United States were to reverse plans to allow the global Internet community to operate ICANN independently, as Sen. Cruz is now proposing, we risk undermining the global consensus that has enabled the Internet to function and flourish over the last 25 years.

Contrary to the senator’s view, ICANN is no “mini-United Nations.” ICANN is a vital part of the voluntary, global network of private organizations that provides Internet stability and the ability to innovate free from government interventions around the world.
Berners-Lee makes it clear that going back on the transfer will put the US gov't in the same kind of dangerous category that Cruz (and Trump) put Russia and China in:
But by forcibly undermining the global Internet community’s ability to make decisions about ICANN, the United States would stoop to the level of Russia, China and other authoritarian regimes that believe in the use of force to limit freedom online.
Tim Berners-Lee not good enough for you? How about Vint Cerf, recognized as one of the creators of the internet itself. He's in favor of the transition too and has explained why people should stop freaking out about it.

If not them, how about Kathryn Brown, who runs the Internet Society. She also argues that delaying the transition is what helps the case for Russia and China, rather than the other way around:
Some warn that if the plan to transition authority on Oct. 1 is delayed, countries like Russia and China could try to shift domain name responsibilities to the United Nations, giving those nations more influence over global internet policy.

"Any delay would add a degree of instability and make the prospect of government control of the internet more likely, not less," said Kathryn Brown, president of the Internet Society, a nonprofit organization that advocates open internet policies.
Or, how about Milton Mueller? The guy who literally wrote the book on internet governance. He's now being quite vocal about how ridiculous the latest plan to block the transition via Congress is:
It vaguely suggests that the transition might create “an opportunity for an enhanced role for authoritarian nation-states in Internet governance,” but provides no evidence as to how or why it does. In fact, if the U.S. is forced to abort the transition now it would play right into the hands of authoritarian states. Killing ICANN’s reforms through impulsive and arbitrary American action would fatally undermine the global Internet governance model rooted in nonstate actors. It would strengthen the case for national sovereignty-based Internet models favored by authoritarian states. “Look,” they will say, “the U.S. wants to control the Internet, why can’t we?” ICANN’s independence from unilateral U.S. government control is a logically and politically necessary consequence of its independence from all governments. By getting in the way of that, it is the Congressmen, not the Commerce Department, who are creating an opportunity for authoritarian states to enhance their influence in Internet governance.

The Congressmen suggest that “this irreversible decision could result in a less transparent and accountable Internet governance regime.” But how? No reference is made to the actual reform plans. In fact, the transition brings with it major corporate governance changes that would significantly improve ICANN’s accountability and transparency. The transition brings with it a new set of bylaws that gives the public enhanced rights to inspect ICANN’s books, the right to remove board members, and the power to prevent the board from unilaterally modifying its bylaws. Under U.S. government supervision for the past 18 years, ICANN has been almost completely unaccountable – yet this is the status quo they want to retain. By opposing the transition, the Congressmen are getting in the way of reforms that address the very things ICANN critics have been complaining about.

The congressmen claim that “Questions have been raised about ICANN’s antitrust status.” Well, what questions, and what are their implications for the future of Internet governance? No answer. This is a phony issue. ICANN is not, and never has been, exempt from antitrust liability.
And so forth and so on. Part of the attempt to throw a wrench into the transition was Cruz claiming that Congress needs to approve the transition, as it has the power to determine if the government can "dispose of... property." But the Government Accountability Office (GAO) just released a report basically saying that doesn't apply here and the Commerce Dept is free to move ahead with the transition. Specifically, the GAO finds it to be ridiculous that the entire domain name system should be considered "property of the US government" because it's not.
It is unlikely that either the authoritative root zone file—the public “address book” for the top level of the Internet domain name system—or the Internet domain name system as a whole, is U.S. Government property under Article IV. We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.
In short, there's a legitimate concern that Russia and China would like more control over the internet. But that's the only point that Trump and Cruz get right. What's astounding is that their preferred course of action -- delaying or even blocking the IANA transition away from the Commerce Dept actually supports Russia and China in their efforts to gain control over the internet. So if you care about the future of the internet and how it is governed, could someone please educate Cruz and Trump that they're doing exactly the kind of damage they claim to be trying to stop?

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Posted on Techdirt - 22 September 2016 @ 3:24am

Chelsea Manning Facing Indefinite Solitary Confinement For Attempting Suicide, Possessing A Book On Hackers

from the wtf dept

As you may have heard, Chelsea Manning, who leaked a ton of State Department cables to Wikileaks and is now in jail for decades, attempted suicide earlier this year. And the Army's response is to threaten her with indefinite solitary confinement to punish her for the attempt. Really. Of course, Manning has been held in solitary confinement in the past -- under conditions that the UN itself declared to be torture. And just last year, Manning was also threatened with indefinite solitary confinement for "disrespecting" corrections officers and for having a toothbrush and certain books and magazines that she wasn't supposed to have.

What about this time? Well, Fight for the Future has posted the details including the charge sheet and it's ridiculous. She's charged with "resisting" when the "force cell team" went to her cell to respond to her suicide attempt. "Resisting" in this case being that she was unconcious. Really.

This charge stems from the “force cell team” being activated. They were called to respond to her suicide attempt, though there were no obstructions to the door and Chelsea was unconscious and unable to resist when they arrived. The charge sheet itself specifies on page 5 that “Inmate Manning did not resist the force cell move team.”
And yet, she's still charged with resisting. Next up "conduct which threatens." That's a pretty broad term -- especially for someone who is unconscious from a suicide attempt. And yet... conduct which threatens. It seems the only thing being "threatened" here is basic human dignity. And then we've got another "prohibited property" claim, just like last year:
On July 6th, Gabriella Coleman’s book “Hacker, Hoaxer, Whistleblower, Spy” was found in Chelsea’s cell, allegedly not properly marked with Chelsea’s name and inmate number on the inside cover. (A new regulation, that appears to have been crafted in response to Chelsea’s confiscated books/expired toothpaste incident from last summer.) In fact, this book was one of the books confiscated from Chelsea’s cell last summer.
Huh? First of all, this is a great book -- one that we've recommended and whose author, Gabriella Coleman, we've had on our podcast. But the fact that this was one of the books that was confiscated last year and then was still in her cell suggests the kind of messed up rules that are used to always have to charge someone with if they don't like you. What a fucked up system.

And people wonder why Ed Snowden doesn't think he'd get a fair trial.

It appears that Manning is resigned to the fact that she's being railroaded and there's little she can do to stop it.
Manning, who is serving a 35-year sentence at the US Army's Fort Leavenworth prison in Kansas, will have to defend herself at the hearing, and told VICE News she's not feeling optimistic. "It doesn't matter what I say or do," she said, through an intermediary, as she's not allowed to speak directly to the press. "The outcome is going to be the same."

Feelings of "hopelessness and helplessness" are hard to shake, she says.
Yup, great way to "punish" a suicide attempt: to take away people's hope even more. I'm sure that'll work. Manning's hearing will be held later today and, hopefully someone with some level of common sense is involved in the decision making process.

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Posted on Techdirt - 21 September 2016 @ 11:39am

Math Is Not A Crime

from the 2+2 dept

Support Techdirt and get Math Is Not A Crime gear! Order by Oct. 3rd »

Our latest Techdirt t-shirt is the Math Is Not A Crime shirt (also available as women's tees, hoodies, v-necks, mugs and stickers), which was initially inspired by some of the debates around outlawing strong encryption -- but also refers to much, much more. One of the key points that defenders of strong encryption have been making in response to attempts to outlaw strong encryption or to demand backdoors is that encryption is just math, and it should never be a crime to do math. But the message actually goes beyond that. It's pointing out that since it is just math, someone else can do the math too and create their own encryption. One of the key legal fights around encryption, Bernstein v. United States, basically centered around the question of whether or not the government could declare a mathematical encryption algorithm a "munition" in order to block its export. Eventually it was determined that source code (and with it, math) are protected by the First Amendment.

But it's not just about encryption. The issue of outlawing math has come up in other contexts that we talk about as well. For example, the patenting of software is one example that has raised concerns about outlawing math. Algorithms are basically just mathematical formulas and not being able to write an algorithm because someone has patented some of it seems particularly stupid. Over a decade ago, Ben Klemens wrote a great book called Math You Can't Use.

And, of course, this enters the copyright realm as well. We're constantly talking about DRM, and a key bit of law that props up bogus DRM systems is Section 1201 of the DMCA, which outlaws any circumvention of DRM. But, many of those circumventions are little more than math as well.

This should be concerning to all of us. Attempting to hold back innovation, privacy and progress by outlawing math is a problem, and that's the reason behind our shirt. Oh, and it's also cool for math teachers and students too. Get yours today, and don't forget to check out the other gear in our super-early holiday sale.

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Posted on Techdirt - 21 September 2016 @ 9:35am

Lenovo Accused Of Locking Linux Out Of Certain Laptops At Microsoft's Request

from the that-would-be-dumb dept

A thread on Reddit is getting a fair bit of attention today, claiming that Lenovo has set up some of its Yoga laptops to block anyone from installing Linux -- and a Lenovo representative then pointed the finger at Microsoft, saying that it's part of what Lenovo was required to do as part of the Microsoft "Signature Edition" Windows 10 program, though there are reasons to doubt this is true. What is clearly true is that there's a problem installing Linux on a bunch of Lenovo machines. Here's a giant thread on the problems (which apparently disappeared for a while, but is back as I write this). And here's another. And here's another. Some of these threads go back many months. But the issue that has suddenly made it big news is a comment supposedly from a Lenovo "product expert" that the company is forced to block it as a part of the Signature Edition program:

If you haven't heard of the Windows "Signature Edition," it's a program from Microsoft to offer a "clean" (read: no annoying bloatware) version of Windows. Think of it like a Google Nexus phone with a clean Android install, as compared to one from a carrier or handset maker stuffed with annoying bloatware you'll never use. The Signature Edition PCs have received some fairly glowing reviews -- and many (ironically given this story today) of the news stories about the Signature Edition program use the Lenovo Superfish malware fiasco as a reason for why people should look at a Signature Edition computer if they want to run Windows.

So, yeah, based on this storyline so far, you have Microsoft making a clean install of its operating system without bloatware (good idea!), but then being accused of making Lenovo design its BIOS to block the installation of Linux (bad idea!). There is at least some reasonable skepticism that the problem here is really because of the Microsoft Signature Edition program. First of all, Signature Edition computers are supposed to only be available directly via Microsoft's stores -- and the laptop that kicked this off was purchased at Best Buy. Also it wasn't labeled as a Signature Edition PC. And it's certainly not unheard of for low level employees in forums to post incorrect information -- and there is even some question as to whether or not the "Lenovo Product Expert" in the forum post above is even a Lenovo employee or a third-party contractor anyway.

So whether Microsoft is truly to blame here is still an open question. At the very least, it does seem like Lenovo has some questions to answer -- and one hopes that the company will be more forthright and honest than it was back during the Superfish episode when it basically lied through its teeth until it couldn't lie any more.

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Posted on Techdirt - 21 September 2016 @ 8:38am

Hillary Clinton To Silicon Valley: To Silence Terrorists, Nerd Harder, Nerds!

from the that's-not-how-this-works dept

With the explosive devices in NY and NJ from this past weekend, Hillary Clinton has decided, once again, that it's time to blame Silicon Valley for not doing more to magically stop terrorists from terroristing.

“The recruitment and radicalization that goes on online has to be much more vigorously intercepted and prevented. I have been saying this for quite some time,” the Democratic presidential candidate said at a news conference Monday during which she responded to the bombings in New York and New Jersey over the weekend.

“The government cannot do this without the close participation of tech companies and experts online who can give us the tools and lead us to those who are attempting to promote attacks like we’ve seen.”
Let's leave aside, first of all, the fact that (as of this writing) there hasn't been any evidence that the individual arrested and charged with this was recruited and radicalized online. Instead, let's focus on what's being asked here: to "intercept and prevent" certain forms of speech online. Not only does this seem... to go completely against American values around freedom of expression, it's also impossible. Sure, you can kick people off of services, but anyone with an ounce of understanding of how the internet works will recognize how ineffective that is.

Not only would such a system fail to stop people who wish to plan attacks from communicating, such a plan would, inevitably, also block perfectly normal and protected speech. Even worse, it would likely block important counterspeech in which people are able to respond to calls for violence and terrorism with arguments as to why that approach is a bad idea.

It remains amazingly troubling that both of the major party candidates for President seem to think that a good response to attacks in this country is to silence people online. Putting the onus on Silicon Valley to magically "fix" this by "preventing" bad people from talking to one another online is not a credible, reasonable or workable strategy for dealing with those who wish to attack the US.

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Posted on Techdirt - 21 September 2016 @ 6:44am

Former Refugee Who Took Skittles Photograph Donald Trump Jr. Used In A Stupid Meme Threatens Copyright Lawsuit

from the 2016-is-quite-a-year dept

As you may have heard, earlier this week, Donald Trump Jr. tweeted out a ridiculous image comparing Syrian refugess to poisoned Skittles. No, really.

FWIW, this is an old and a dumb and meaningless meme. It's not always Skittles, though. Last year failed Presidential contender Mike Huckabee used the same concept, but with Peanuts -- and John Oliver mocked him for it, noting that "peanuts themselves have killed far more people than terrorist refugees." Another version involved M&Ms, and it was used by a variety of groups -- including a feminist "Yes All Women" campaign. Some are arguing that the switch from M&Ms to Skittles is even more racist, because it's based on the fact that when Trayvon Martin was shot dead by George Zimmerman, Martin had a pack of Skittles in his pocket. And, of course, the Intercept argues that this meme goes all the way back to a top Nazi propagandist making sure that the meme is sufficiently Godwined.

But... of course, most of that has little to do with what we normally cover around these parts. But what we do often cover is copyright related issues -- so it's interesting to find out that the image used in that Skittles graphic that Trump Jr. posted was copied from Flickr, where it pretty clearly has an "all rights reserved" copyright notice on it. Oh, and the guy who took the photo, David Kittos, happens to be a former refugee himself, who is not at all pleased that his image is being used in this manner.
"This was not done with my permission, I don't support his politics and I would never take his money to use it," Mr Kittos told the BBC.

"In 1974, when I was six-years old, I was a refugee from the Turkish occupation of Cyprus so I would never approve the use of this image against refugees."
So, yeah. But what can he do? Well, apparently he's considering taking legal action, though he (rightly) notes that that may be a hassle:
"I would like the Trump campaign to delete the image, but they are probably not interested in what I have to say," he said.

"I was thinking about getting lawyers involved but I don't know if I have the patience.

"This isn't about the money for me. They could have just bought a cheap image from a micro stock library. This is pure greed from them. I don't think they care about my feelings. They should not be stealing an image full stop."
While I might disagree on the use of the term "stealing an image" there, it certainly could create an interesting copyright legal battle -- raising serious questions about fair use in political discussions. Thankfully, though, it seems unlikely that any lawsuit will actually happen. Instead, we can just sit back and think about the number of meetings and conversations that must have happened before Mars Inc., makers of Skittles, decided to put out this statement:
Skittles are candy; refugees are people. It's an inappropriate analogy.
Indeed. But is it copyright infringement...?

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Posted on Techdirt - 21 September 2016 @ 3:38am

Yet Another Report Says More Innovation, Rather Than More Enforcement, Reduces Piracy

from the the-data-keeps-flowing dept

It's not like many of us haven't been saying this for years: but fighting piracy through greater copyright enforcement doesn't work. It's never worked and it's unlikely to ever work. A year ago, we released our big report, The Carrot or the Stick? that explored at a macro level what appeared to lead to reduced levels of piracy -- enforcement or legal alternatives -- and found overwhelming evidence that enforcement had little long-term impact (and a small short-term impact), but that enabling legal alternatives had a massive impact in reducing piracy. This should sound obvious, but it was important to look at the actual data, which backed it up.

Now, there's a new and different study that further supports this idea. Researchers at the University of East Anglia, Lancaster University and Newcastle University have a new report saying that promoting legal alternatives is much more effective in stopping piracy than the threat of legal consequences.

The researchers say that in order to compete with unlawful file sharing (UFS), easy access to information about the benefits of legal purchases or services should be given in a way that meets the specific benefits UFS offers in terms of quality, flexibility of use and cost.

The team looked at the extent to which the unlawful sharing of music and eBooks is motivated by the perceived benefits as opposed to the legal risks. Involving almost 1400 consumers, the research explored people's ability to remain anonymous online, their trust in the industries and UK legal regulators such as Ofcom, and their downloading behaviour.
It's a very different approach to our own research, but the conclusions remain almost identical. In short, the researchers found that for people who really "trust" regulators, then the threat of punishment was effective. The problem, however, is that not that many people actually trust regulators. That leaves officials with two choices: increase trust in regulators, or... figure out ways to incentivize more legal, innovative alternatives. And, of course, one way to destroy trust in regulators is to support policies like expanding copyright enforcement.
Co-author Dr Piers Fleming, from UEA's School of Psychology, said: "It is perhaps no surprise that legal interventions regarding UFS have a limited and possibly short-term effect, while legal services that compete with UFS have attracted significant numbers of consumers.

"Our findings suggest that it may be possible to diminish the perceived benefit of UFS by increasing risk perception, but only to the extent that UFS is considered emotionally, and users trust industry and regulators. Increasing trust in industry and regulators may be one route toward encouraging UFS to be considered in emotional rather than rational terms. However, given the limited impact of risk perception upon behaviour, a better strategy would be to provide a desirable legal alternative."
So, that's common sense and two very different studies with very different approaches -- all suggesting the same thing. And yet, politicians, regulators and legacy industry folks still insist that ratcheting up enforcement is the way to go. What will it take for them to actually follow what the evidence says, rather than continuing with faith-based copyright policies?

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Posted on Techdirt - 20 September 2016 @ 10:43am

Italy Proposes Law To Make Mocking People Online Illegal

from the what-a-stupid-fucking-law dept

Every so often, we see (probably) well-intentioned, but incredibly stupid, attempts to "fight" online harassment and bullying through laws that make saying things that are "offensive" against the law. In the US, such laws (if they actually get passed) are usually thrown out once someone makes a First Amendment challenge over them, but elsewhere in the world there's no First Amendment to fall back on. Over in Italy, some officials have proposed what may be one of the dumbest such laws in history, written so broadly that it will outlaw a lot more than the kind of "cyberbullying" it's supposedly intended to combat:

Under the proposed law, the "site manager" of Italian media, including bloggers, newspapers and social networks would be obliged to censor "mockery" based on "the personal and social condition" of the victim -- that is, anything the recipient felt was personally insulting. The penalty for failing to take action is a fine of €100,000. Truthfulness is not a defense in suits under this law -- the standard is personal insult, not falsehood.
Yes, mockery on the internet could get you a €100,000 fine. Mockery. The internet. The internet is made for mockery. And now is the time that everyone should be mocking this idiotic law -- and the politicians who proposed it without having the slightest idea of how such a thing would be abused all the time. As Cory Doctorow at BoingBoing notes:

... what it will do is create a tool for easy censorship without due process or penalty for misuse. The standard proposed in the bill is merely that the person on the receiving end of the argument feel aggrieved. Think of the abuse of copyright takedowns: online hosts already receive millions of these, more than they could possibly evaluate, and so we have a robo-takedown regime that lets the rich and powerful routinely remove material that puts them in an unflattering light.

As bad as that is, at least it makes censorship contingent on something specific and objective: copyright infringement, which has a wealth of caselaw defining its contours. Indeed, so much that you need to be a trained expert to adjudicate a claim of infringement. But at least you can objectively assess whether a copyright infringement has taken place.

The standard set by the proposed Italian law allows for purely subjective claims to be made, and for enormous penalties to be imposed on those who question them before undertaking sweeping acts of censorship.

There are some efforts under way to "improve" the law by making it not quite so draconian, but maybe, just maybe, the "improvement" should be to recognize that you're never going to successfully outlaw mockery on the internet.

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Posted on Techdirt - 20 September 2016 @ 8:29am

Facebook Algorithms Take Down WordPress Lawyer's Post About Idiocy Of Algorithmic Takedowns

from the that's-an-exclamation-point dept

We've had a lot of talk lately about the idiocy of automated content blocking, whether done by Facebook or by big movie studios like Warner Bros. issuing automated DMCA takedowns on its own site. Paul Sieminski*, the General Counsel for Automattic, was asked by Corporate Counsel magazine for his opinions on the WB takedowns (warning: possible registration or paywall). In it, Sieminski notes:

In the first six months of 2016, WordPress received 4,258 DMCA takedown notices, 9 percent of which were rejected as abusive, according to the company's Transparency Report. And though those numbers are nowhere near the volume of, say, Google, the costs of those abuses are high, Sieminski says. "There's really a big chilling effect on speech, especially controversial speech, because there's a very handy tool to use to remove that type of reporting from the internet," he says. "And as a company, we have to invest in the human resources … to sift through the mountain of notices we get."
There are some more interesting quotes in there as well. Having himself featured in Corporate Counsel Magazine seems like reason enough for a Facebook post, so Paul posted a link to the story on Facebook as well, with a little blurb noting how it was "fun" to be quoted, and how such automated takedowns "happen hundreds of times a day, but make the news only occasionally."

Can you guess what happened next? Of course you can...

Facebook's automated takedown algorithms decided that Paul's brief post and link about how bad automated takedowns are... got taken down, because irony lives.
Facebook claims that posting about automated takedowns and how they're problematic somehow violates its Community Standards. Obviously, this is a mistake (yet another one) by Facebook's autotakedown system, but it really does help highlight the point of how problematic this kind of system can be, when perfectly legitimate speech is silenced, because a bot thinks it's bad.

* Full disclosure: Automattic recently sponsored & hosted our event on copyright reform, and Paul was our main contact there for that event.

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Posted on Techdirt - 20 September 2016 @ 6:25am

Will The Washington Post Give Back Its Pulitzer And Stand Trial With Snowden?

from the senseless dept

We already know that the Washington Post editorial board has some cognitive dissonance when it comes to Ed Snowden. Three years ago, right after the Washington Post itself, via reporter Barton Gellman, broke a bunch of the initial stories around the Ed Snowden documents -- including the first public report on the Section 702 PRISM program -- the editorial board wrote a piece condemning Snowden's leaks. Now, it's true (as many point out) that the editorial board is separate from the reporters who work at the paper, but it still is really quite amazing that the editorial board would not only burn a source like that but basically complain about its own journalism.

It appears that three years later, the Post's editorial board has not changed its perspective. In response to the campaign to pardon Snowden, the Washington Post has come out with a tone deaf editorial against pardoning Snowden, calling for him to be prosecuted, and insisting that Snowden caused real harm with the revelations. Here's the really incredible part. The Post focuses its complaint on the revelation of the PRISM program -- and that is the story that the Post broke. Glenn Greenwald and the Guardian had the first story, about the Section 215 mass phone records surveillance program. But it was the Post that had the first story about PRISM. And yet, the Washington Post now says that while revealing the 215 program may have been a public service, revealing PRISM was a crime.

The complication is that Mr. Snowden did more than that. He also pilfered, and leaked, information about a separate overseas NSA Internet-monitoring program, PRISM, that was both clearly legal and not clearly threatening to privacy. (It was also not permanent; the law authorizing it expires next year.) Worse — far worse — he also leaked details of basically defensible international intelligence operations: cooperation with Scandinavian services against Russia; spying on the wife of an Osama bin Laden associate; and certain offensive cyber operations in China. No specific harm, actual or attempted, to any individual American was ever shown to have resulted from the NSA telephone metadata program Mr. Snowden brought to light. In contrast, his revelations about the agency’s international operations disrupted lawful intelligence-gathering, causing possibly “tremendous damage” to national security, according to a unanimous, bipartisan report by the House Permanent Select Committee on Intelligence. What higher cause did that serve?
Except it wasn't Ed Snowden who publicly revealed information about PRISM. It was the Washington Post. And it won a freaking Pulitzer Prize for that reporting as well. And now it says that the revelation of that program should never have happened?

Really?

Remember that, while many people falsely think that Snowden is the one who revealed these programs to the public, that's not the case. He gave the documents to certain journalists, saying that he trusted them to sort through them and determine what was newsworthy, what was not, and what should be kept secret. It was the Washington Post that determined the PRISM program -- which is still subject to legal challenges (though so far has been found to be legal) -- was serious enough for news coverage. Not Ed Snowden. And yet now the Post says Snowden should be prosecuted for the journalistic decision it made, which earned it a Pulitzer.

Yes, the Post editorial board is free to make such a stupid decision, but it's only going to harm its journalistic staff. What source is going to go to the Washington Post now, when it's the very paper that took all the glory from publishing stories from a source -- and then called for him to be thrown in jail?

Here's what the Washington Post's Executive Editor Marty Baron said about the Pulitzer Prize when it was announced:
Post Executive Editor Martin Baron said Monday that the reporting exposed a national policy “with profound implications for American citizens’ constitutional rights” and the rights of individuals around the world.

“Disclosing the massive expansion of the NSA’s surveillance network absolutely was a public service,” Baron said. “In constructing a surveillance system of breathtaking scope and intrusiveness, our government also sharply eroded individual privacy. All of this was done in secret, without public debate, and with clear weaknesses in oversight.”

Baron added that without Snowden’s disclosures, “we never would have known how far this country had shifted away from the rights of the individual in favor of state power. There would have been no public debate about the proper balance between privacy and national security. As even the president has acknowledged, this is a conversation we need to have.”
Hmm. That doesn't seem to fit with what his own editorial board is now saying about Snowden's revelations. When asked about this now, in response to the editorial, Baron suddenly came down with a case of the "no comments."
In an email response to Fortune, Post editor-in-chief Marty Baron said: “I don’t comment on editorials. As you know, that department is entirely separate from the newsroom. You should contact Bart Gellman.”
Gellman, of course, is the reporter who wrote those stories for the Post and who has said he "profoundly" disagrees with the Post's editorial.

As he should, because the editorial is not just tone deaf and ridiculous, it's cowardly bullshit that massively harms the reputation of the Post itself, and certainly undermines its credibility with sources.

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Posted on Techdirt - 19 September 2016 @ 4:18pm

MuckRock & Vice Announce Fellowship To Investigate Peter Thiel

from the will-charles-harder-be-given-a-new-target? dept

So this is interesting. MuckRock, the really useful FOIA platform (that I regularly use for filing FOIA requests), has announced what it's calling MuckRock's Thiel Fellowship, in which it's offering to give free service to between one and three "Thiel Fellows" who decide to do FOIA projects involved in investigating some Peter Thiel-connected companies:

MuckRock is offering a grant of 250 requests (a $1,000 value), plus our invaluable FOIA expertise, to between one and three inaugural Thiel Fellows who propose projects that help the public better understand organizations or areas of research and public policy connected with Thiel.
As MuckRock notes, many of Thiel's efforts touch on government activities (which would make them open to certain FOIA requests):
Peter Thiel - co-founder of both PayPal and Palantir and an early Facebook investor - has profoundly reshaped industry after industry and, ultimately, remade the world to fit his radical vision of the future. Unfortunately, despite his impact in industries ranging from digital payments and mass government surveillance to radical life extension and seasteading, the media has done relatively little reporting on the details of his companies, often leaving the public in the dark on his contributions to society.
Vice's Motherboard tech site has also stepped up and agreed to double the amount so that even more people can file Thiel-related FOIAs.

Of course, the name MuckRock chose for this is a clear play on the well-known Thiel Fellowship, in which he gives $100,000 to entrepreneurial college students to work on building companies, rather than completing school.

And while I'm not so sure how much Thiel-related info is really FOIA-able, this may put to the test Thiel's stated claim that he wasn't against journalism that made him look bad, in funding lawyer Charles Harder to sue Gawker into oblivion, but rather to "send a message" about protecting privacy. Of course, when you try to silence the press, there's always a chance that the press decides to turn an even bigger spotlight on you. I guess now we have to wait and see if Harder starts threatening MuckRock with trademark infringement claims over the name...

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Posted on Techdirt - 19 September 2016 @ 2:32pm

Guy Arrested Over KickassTorrents Blocked From Talking To His US Attorney

from the due-process? dept

Just a few weeks ago, we had lawyer Ira Rothken on our podcast (it's a really great episode, so check it out if you haven't heard it yet). Rothken has been involved in lots of big copyright cases, but is probably most well-known these days as Kim Dotcom's US lawyer. In that episode we talked a lot about the Kim Dotcom situation, but also spent a fair amount of time on the case of Artem Vaulin, who was arrested in Poland for running the search engine KickassTorrents. The US is seeking to extradite him to stand trial in Illinois. On the podcast, Rothken expressed some concerns that he hadn't been able to speak directly to Vaulin and noted that he was working on it.

Nearly a month has passed, and it appears that officials are still blocking Vaulin from communicating with Rothken. TorrentFreak has the story:

Even though nearly two months have passed, the alleged KickassTorrents owner still hasn’t been allowed to meet with his U.S. defense team. A clear due process violation, according to Rothken.

“We still have not had an opportunity, nor have we been granted access, to meet with Artem Vaulin in prison in Poland. So we now believe that this has ripened into an international due process problem.

“We believe that Artem’s rights are now being impacted with his inability to communicate with U.S. counsel,” Rothken tells TF.
Vaulin is allowed to meet with his Polish lawyer, but since the charges against him are in the US, under US law, and the key issue involves extradition to the US, it's ridiculous that he's unable to consult with a US lawyer.
“There’s no way that there could be a fair trial in the United States, or a fair extradition process, without Artem being able to have access to U.S. counsel, to learn his rights, to be able to galvanize the evidence, and to do so in a robust and expedient manner,”
It seems quite bizarre that Vaulin is being denied access to his lawyer. Once again, as with the Dotcom case, it feels like a situation where officials are purposely stacking the deck against the person they're accusing, doing everything possible to make sure that they're pressured into cutting a deal, rather than actually being able to fight for their rights.

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