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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 Podcast - 31 May 2016 @ 12:49pm

Techdirt Podcast Episode 75: What Happened At The Oracle Google Trial?

from the fair-use-and-then-some dept

Over the past few weeks, a jury heard the second round of the copyright fight between Oracle and Google over whether Google's use of the Java APIs in Android constituted copyright infringement, or whether it was fair use. In the end, the jury went with fair use. Reporter Sarah Jeong watched the entire trial from the courtroom and joins us on the Techdirt podcast this week to discuss both the legal details and the various oddities of this particular trial.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 31 May 2016 @ 10:39am

Oracle's Lead Lawyer Against Google Vents That The Ruling 'Killed' The GPL

from the but-that's-not-true dept

When the Federal Circuit Appeals Court (CAFC) initially made its nutty ruling saying that APIs are copyright-eligible subject matter, many in the copyright and tech world were not only shocked, but were tremendously worried about how the ruling would impact innovation and software development going forward -- while supporters on the other side brushed off such concerns.

Now that the second trial has found that, even if APIs are covered by copyright, Google's use of the Java APIs in Android was fair use, perhaps it's only fair that people on the losing side are lashing out in the same manner as people on the other side did after the CAFC ruling.

Annette Hurst, the lawyer who led the case on the Oracle side, posted her thoughts to LinkedIn, claiming that the ruling represents the "death of free software," and, more specifically, saying that the ruling "killed" the GPL (General Public License, even though at the trial one witness insisted it was the Gnu Public License). From reading her post, it appears that she either doesn't understand that software and APIs are not the same thing, or that she just doesn't care. The whole argument is strange, and starts off with a bizarre, and simply wrong, assertion that "no copyright expert" would have predicted this result:

The developer community may be celebrating today what it perceives as a victory in Oracle v. Google. Google won a verdict that an unauthorized, commercial, competitive, harmful use of software in billions of products is fair use. No copyright expert would have ever predicted such a use would be considered fair. Before celebrating, developers should take a closer look. Not only will creators everywhere suffer from this decision if it remains intact, but the free software movement itself now faces substantial jeopardy.
Except, of course, tons of copyright experts predicted exactly this result (and many more argued that APIs should not be subject to copyright at all). Famed copyright scholar Pam Samuelson has been writing extensively about the case, focusing both on why APIs should not be covered by copyright (and, why basically every other court has agreed) as well as why, even if it is covered, it's fair use. Hell, she even wrote a response to the Hurst piece, explaining why Hurst was wrong. It's weird for Hurst to take a position that actually seems at odds with a huge number of copyright experts, and then state that none would take the position that many did.

From there, she appears to misunderstand the point made by the other side in the very case she led:
While we don't know what ultimately swayed the jury, Google's narrative boiled down to this: because the Java APIs have been open, any use of them was justified and all licensing restrictions should be disregarded. In other words, if you offer your software on an open and free basis, any use is fair use.

If that narrative becomes the law of the land, you can kiss GPL goodbye.
Except she's exaggerating here and misrepresenting the key issues in the case. No one was arguing, as she implies, that any software that is described as "free and open" or that is using the GPL means that any use is fair. Again, she's conflating APIs with actual software. The ruling doesn't impact software the way she thinks it does because she doesn't seem to want to acknowledge that APIs are not software. They're just a structure -- a table of contents effectively.
No business trying to commercialize software with any element of open software can afford to ignore this verdict. Dual licensing models are very common and have long depended upon a delicate balance between free use and commercial use. Royalties from licensed commercial distribution fuel continued development and innovation of an open and free option. The balance depends upon adherence to the license restrictions in the open and free option. This jury's verdict suggests that such restrictions are now meaningless, since disregarding them is simply a matter of claiming "fair use."
This is simply not true. The case revolved around the fact that the API and its "declaring code" are fundamentally different from the actual source code within the operating system. It serves an entirely different purpose. Part of the reason why the use of the same API is considered fair use is because of that very nature of it: the API is more functional -- it's like a pointer or a reference, rather than an actual bit of code. It's only if you don't understand that the two things are different that this ruling leads to the problems that Hurst describes. A case with the same facts, but where straight up source code was copied would have a much tougher uphill battle on the fair use front.
Developers beware. You may think you got a win yesterday. But it's time to think about more than your desires to copy freely when you sit down at a keyboard.
Once again, this shows a rather unfortunate ignorance of how coding works. It's not about a desire to "copy freely." It's about building amazing and innovative services, and making use of APIs to increase interoperability, which increases value. Copying an API structure is also just much more about making developers comfortable in using new environments. You know, like how Oracle copied SQL from IBM. Because lots of people understood SELECT-FROM-WHERE and it made little sense to create a relational database that didn't use that structure. It's not about copying freely. It's about interoperability.

And, really, the idea that an Oracle lawyer is "concerned" about the future of the GPL is fairly laughable. Thankfully, many people have weighed in in the comments -- including plenty who are quite familiar with the GPL and software development to explain to Hurst why she's wrong. Somehow, I think she has some fairly strong reasons to ignore those responses.

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Posted on Techdirt - 31 May 2016 @ 9:37am

If, As Eric Holder Now Admits, Snowden Did 'A Public Service,' Why Does He Still Want Him In Jail?

from the because-he's-either-misinformed-or-lying dept

As you may have heard, over the weekend, former Attorney General Eric Holder appeared on a podcast with his former administration colleague, David Axelrod, for a podcast. The ~1 hour discussion is pretty wide-ranging, but right towards the end Axelrod brings up questions about surveillance and how the adminstration handled the NSA, leading Holder to make an offhand comment that is now making headlines, noting that he believed Ed Snowden had done "a public service" in revealing various NSA files to journalists. Of course, he immediately then focuses on why Snowden should go to jail. The statement is interesting because it's been like pulling teeth to get anyone associated with the administration in any way to acknowledge that maybe what Snowden did was a good thing. That said, almost everything else that Holder says is either wrong, misleading or questionable regarding Snowden and surveillance. Here's a quick transcript of the relevant parts (it doesn't appear that CNN, which produces the show, or Axelrod, have released a full transcript, so I apologize for any typos), followed by some thoughts:

Axelrod: How difficult were these issues that involved civil liberties on the one hand, and security on the other? And how do you weigh those things?

Holder: I thought the President really put it best when he said, "simply because we have the ability to do something, doesn't necessarily mean that we should." We had the capacity to do a whole range of things under these listening programs. But after a while, I remember sending memos to the President asking him if we really need to do this, given the way in which we are focusing on people's lives, and given the return that we were getting, which was not, in any way, substantial.

We can certainly argue about the way in which Snowden did what he did, but I think he actually performed a public service by raising the debate that we engaged in, and by the changes that we made. Now I would say that doing what he did -- the way he did it -- was inappropriate and illegal. Maybe he could have gone to Congress and done these things...

Axelrod: He would argue that he tried various ways and couldn't. But what should be done with him now?

Holder: I think he's got to make a decision. He's broken the law, in my view. He needs to get lawyers, come on back and decide what he wants to do: go to trial, try to cut a deal. I think there's got to be a consequence for what he's done. But I think that in deciding what an appropriate sentence should be, I think a judge could take into account the usefulness of having had that national debate.

Axelrod: But you think he will still serve time?

Holder: I think he should. I mean, I think he harmed American interests. I know, I can't go into...

Axelrod: He would say he didn't...

Holder: No that's not true. That's simply not true. I know there are ways in which certain of our agents were put at risk. Relationships with other countries were harmed. Our ability to keep the American people safe was compromised. There were all kinds of "redos" that had to be put in place as a result of what he had done. And while those things were being done, we were blind in really critical areas. So what he did was not without consequence.
Now almost everything Holder states here is misleading and/or inaccurate -- perhaps everything other than the claim that what Snowden did was a public service. First off, the claim that a judge could take into account the public debate that was created is a bit of sneaky wording. Holder knows that there is no public interest or whistleblowing defense allowed under Espionage Act claims. Snowden could not claim that what he did was in the public interest as part of his trial at all. And note that Holder chose his words carefully here, only saying that a judge could take that info into account for sentencing purposes, following a trial in which those defenses were not allowed. But that only applies to sentencing and not guilt.

Second, as for the harm done, remember that just a few seconds earlier Holder was admitting that these programs did very little of value? To then spin it around and claim that some sort of "darkness" was created because of this seems pretty silly. And, yes, it probably did harm some relationships, but is that really Snowden's fault... or the fault of what the leaks revealed about what the US government was doing in the first place?

Third, it's ridiculous to think that going to Congress with these concerns would do anything. After all, at the time of Snowden, we already had Senator Ron Wyden screaming about these issues with his colleagues, and no one paid attention. Does Holder really think that if Snowden had raised the issues with Congress, anyone would have paid attention? Besides, we just had a former senior Defense Department official publicly admit that the "proper channels" were a joke for someone like Snowden, highlighting how the government regularly sic'd the Holder-run DOJ on anyone who blew the whistle, and that Holder and his team were all too willing to go after whistleblowers.

And that brings us to the next question, in which Axelrod highlights that criticism of the Holder DOJ, that it prosecuted more whistleblowers/leakers than every other administration... combined. Holder's answer -- I kid you not -- is basically, "but just think of all the people we didn't prosecute." Axelrod points out that not only has the DOJ gone after leakers, but reporters as well, and Holder tries to "correct" him again in a misleading way:
Holder: No, we didn't charge any reporters with any criminal offenses. But we brought charges against people who had broken oaths to keep things secret.

People say 'more than any other administration in history,' I think we brought a total of five or six -- we inherited one or two -- so I think you have to keep the raw number in mind and understand also that we brought five or six, whatever the number, and turned away probably close to a hundred, that were brought to us by the intelligence community, where they asked the Justice Department to investigate and to prosecute. We made the decision not to.
Of course, they harassed and threatened journalists, including James Risen, who they threatened to jail if he wouldn't reveal his sources. Or how about reporter James Rosen, who the DOJ falsely claimed was a "co-conspirator" in a case where Rosen was leaked information about North Korea from the State Department. Okay, maybe they didn't directly charge reporters with crimes, but the DOJ sure came mighty close to that line in a manner that was pure intimidation.

Also, the whole thing about going after people who "broke their oath" -- that's complete bullshit. The only oath that people took was the same one that Holder himself took, which was to protect and defend the Constitution. People may have violated a contractual non-disclosure agreement not to reveal this information, and you can argue that there should be punishment for breach of contract, but that sounds a lot less dramatic and horrifying than "breaking an oath."

But, really, the bigger question in all of this, even after you cut through the ridiculous FUD from Holder, is that if he truly believes Snowden did do a "public service" and it can be shown -- as it has been -- that there really weren't any other reasonable ways to create that public debate and changes to the system, then shouldn't we be concerned that this should still lead to criminal charges and the possibility of being locked up forever? Because it seems inherently and rather obviously fucked up to suggest that the only legitimate way to raise an important public debate about surveillance powers is to break the law. If that's the case, then it seems fairly obvious that the law needs to change.

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Posted on Techdirt - 31 May 2016 @ 8:38am

Independent Musician Sues Justin Bieber & Skrillex For Copyright Infringement... Over A Sample They Didn't Use

from the well-that's-an-issue dept

Late last week, the press had a bit of a frenzy with the news that indie musician Casey Dienel, who releases music as White Hinterland, had sued Justin Bieber and Skrillex (along with some others) for copyright infringement, claiming that the pair used a sample from her song "Ring the Bell" that was released in 2014. The accusation is that Bieber's 2015 hit "Sorry" uses the same sample of a female musical riff. You can read the lawsuit here, which might be useful since most of the rest of the media didn't link to it.

Here's White Hinterland's "Ring the Bell":

And here's the Bieber/Skrillex song "Sorry":
The two songs are basically nothing alike except that both start with a similar female vocal riff. It's right at the beginning of both songs, and, indeed, it does sound kinda similar, but it's clearly not the same. If you want to hear both in a single video, well, someone's created that too:
But if you listen, you'll see that they're not the same. And, indeed, Skrillex posted a short clip to Twitter showing how the sample was made, suggesting this lawsuit is completely and totally bogus, as it was taken directly from a longer recording from the actual Sorry recording session and then tweaked.
Dienel's Facebook post about the lawsuit claims that the sample is "obvious" and makes some odd claims about how she felt she needed to do this "to preserve my independence."
Creating original and unique music is my life’s passion, but it is challenging and time consuming. I poured my blood, sweat, and tears into writing and producing “Ring the Bell,” and I am proud of the finished product, which Rolling Stone listed as one of its “favorite songs, albums, and videos.” Throughout my career, I have worked very hard to preserve my independence and creative control, thus it came as a shock to hear my work used and exploited without permission.

Like most artists that sample music, Bieber could have licensed my song for use in “Sorry.” But he chose not to contact me. After the release of “Sorry,” my lawyers sent Bieber a letter regarding the infringement, but Bieber’s team again chose to ignore me. I offered Bieber’s team an opportunity to have a private dialogue about the infringement, but they refused to even acknowledge my claim, despite the obviousness of the sample. Justin Bieber is the world’s biggest artist, and I’m sure that he and his team will launch a full attack against me. But, in the end, I was left with no other option. I believe I have an obligation to stand up for my music and art.
To be fair, the vocal riffs are pretty similar, but they're also pretty short and pretty basic. Just a short upward progression.

As for the lawsuit itself... it bends over backwards to present circumstantial evidence of why Skrillex may have heard Dienel's song, noting things like the fact that her album was reviewed in Rolling Stone in an issue that also reviewed a Skrillex album. And also, a previous producer for a different Bieber album was also in another musical group that was signed to a sister label with the label that put out the White Hinterlands album. And even though the rest of both of the songs are really different, Dienel's lawsuit still tries to insist that there are more similarities than there really are:
Both “Ring the Bell” and the infringing “Sorry” feature keyboard synthesizers, samples, synth bass, drums, and percussion. Although “Sorry” does not include horns like “Ring the Bell,” “Sorry” uses a synthesizer patch to resemble a trumpet.

Both “Ring the Bell” and the infringing “Sorry” feature breath-like sounds to complement the vocal riff.
I don't mean to pile on Dienel here. That vocal riff does sound similar, and I can certainly understand why she would feel like this was unfair and potentially illegal. They apparently even got a musicologist to sign off on a claim that the works are the same. The filing does have one "out" in that it sometimes says that the riffs are "identical and/or strikingly similar." So perhaps they can try to keep the case alive by arguing that even if Skrillex didn't sample directly from the White Hinterland song, they used it as the basis of their recreation. That seems like a long shot, if the idea/expression dichotomy has any real weight, but when it comes to "strikingly similar" songs, copyright law sometimes goes... wacky.

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Posted on Techdirt - 29 May 2016 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the notice-and-what-now? dept

This week we had what I consider to be an all-time great comment win the insightful vote (it came close on the funny side too, actually, but ended up in the third slot, rather than the top two), in response to Sony claiming that it can charge an "administrative fee" for fair use. Commenter Zengief did a nice job playing off the "notice-and-takedown" and "notice-and-staydown" concepts and came up with something entirely new:

New type of content removal?

Let's call this what it really is:
Notice and shakedown.
That'll do, Zengief. That'll do. The second place comment was on that same story and was by Mason Wheeler, responding to someone trotting out the old saw that fair use is nothing more than "a defense" against an infringement claim. Mason schooled that commenter pretty quickly:
That's simply not true. Lawrence Lessig famously likes to say that, but he's wrong. Fair use is the rights of the public to make use of public culture; copyright is a set of temporary exceptions to those rights, carved out in the name of encouraging the further development of culture. Calling fair use "an exception to copyright" is putting the cart before the horse.
While I actually don't recall Lessig ever actually saying that, the larger point stands. Fair use is absolutely a right. The fact that, procedurally, you need to use it as a defense in a court case to prove your use was proper, is besides the point.

For editor's choice, we've got a great comment from Sir Wooginowski responding to the story about AT&T rolling out broadband data caps, noting that AT&T does a terrible job of accurately metering in the first place.
I'm one of the unfortunate ones in a reasonably populated area that can only get standard DSL from ATT. I'm on the 3Mbps/512Kbps plan. My meter has been in effect for the 150G limit for well over 2 years. A few times I've gone over and gotten billed (which I call, complain, and get reversed).

Adding insult is the meter is looking at the traffic at the DSLAM, not from the CPE equipment. With ATT DSL, they use PPPoE over ATM as the network transport. The short of it is that this adds about 15-20% overhead to the packets sent to your modem. Since ATT does not over-provision to provide advertised speeds (my modem locks at 3008/514), I can at most receive 2.6Mbps/460Kbps for speed. BUT because of the overhead (on average 18%) and measurement made at the DSLAM, I cannot consume a full 150G worth of traffic before hitting that cap. I can only consume 127G before going over.

So, I cannot ever achieve the advertised speeds, and I also lose about 23G worth of transfer before hitting cap. This is so lost on the customer service reps I've given up trying to explain.

Innovation from ATT.
And, finally, we've got a nice concise comment from an anonymous commenter responding to a silly, facts-optional op-ed in the NY Times insisting that there's some sort of battle going on between "creative culture" and "technology." This commenter succinctly highlighted the error in the premise:
They seem to be conflating "Creative Culture" with "Gatekeeper Culture"
Indeed. Moving on to the funny side of the ledger, first place goes to TheResidentSkeptic, who was responding to another commenter on our story about Silicon Valley seeing the light and embracing encryption and the dumping of log files. The other commenter who wondered when the government would ban the deletion of log files. TheResidentSkeptic had a potential solution (which, if the government actually did mandated log file retention I would not recommend you try at home):
I never delete my server's log files. They are all right there in /dev/null
In second place, we've got Anonymous Anonymous Coward, responding to the story of the FBI closing in on Team Prenda. In our story, we linked to lawyer Ken "Popehat" White's story (which broke the news), and quoted him pointing out that Team Prenda "needs federal criminal defense attorneys, and needs them right now." Of course, White is famous for "putting up the Popehat symbol" in seeking pro bono legal help (usually for free speech issues) when he comes across someone who really needs the help. AAC noticed that this didn't happen here:
I'm shocked. Shocked I tell you. Ken failed to raise the Popehat signal looking for qualified counsel to defend these poor sods, pro bono. /s
For editor's choice, we've got another anonymous comment on that story about Silicon Valley suddenly fearing surveillance and working against it in response to the attacks on Apple encryption, with the commenter putting a bit of spin on the story:
This is great! Finally we have members of Congress and the FBI working together to make sure tech companies keep Americans safer in the digital age.
And, finally, we have another anonymous commenter responding to the story of Google pushing back on France's desire to censor the internet globally with the Right to be Forgotten. A single line demonstrates the potential problem with this approach:
Hi Google? I'd like Tiananmen Square to be forgotten worldwide. k.Tx.bye - China.
That's all for this week, folks. We're off tomorrow for Memorial Day. Go enjoy the great outdoors or something. We'll be back to our regular posting schedule on Tuesday.

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Posted on Techdirt - 28 May 2016 @ 12:00pm

This Week In Techdirt History: May 22nd - 28th

from the looking-back dept

Five Years Ago

Our first inkling that that the NSA and the White House had reinterpreted the PATRIOT Act in secret came out as Senator Ron Wyden began sounding the alarm, that eventually resulted in Snowden leaking documents two years later. Of course, Wyden's warnings didn't stop the PATRIOT Act provisions from being renewed. That same week, Wyden also put a hold on the PROTECT IP bill, which was later known as the PIPA half of SOPA/PIPA. None of that really mattered since Homeland Security was already seizing web sites for copyright infringement... and for online poker.

It was the early days of copyright trolling in the US as one of the originators of the scheme, US Copyright Group, sued 24,583 people for sharing Hurt Locker. It was also an early legal loss for famed copyright troll John Steele, who went on to found Prenda Law.

Back on the privacy front we were explaining why "if you've got nothing to hide..." was such a dumb argument. The UK was dealing with another situation involving a ridiculous superinjunction designed to silence the press from mentioning Ryan Giggs, leading to the UK press figuring out ways to name him anyway, and that leading a judge to argue this proves why such press censorship is so important.

This was the beginning of Rakofsky v. the Internet, in which a young lawyer sued basically everyone who said anything mean about him (we were briefly almost included in that lawsuit, but due to a filing error, that never became official). A new report in the EU found that IP laws that were too strong were harming the EU economypushing for greater enforcementdemanding royalties for inspiring some of her popular songs.

Oh, and following on the push in Texas to pass a law banning the TSA from groping airline passengers, the Justice Dept threatened to block all flights out of Texas.

Ten Years Ago

Some things never change. Security researchers were afraid to report vulnerabilities because they were getting blamed for them. The RIAA was suing XM (pre-Sirius) over a useful little device called the Inno. Meanwhile, it's partners in the IFPI were cheering criminal charges brought against 3,500 file sharers in Germany. Someone was challenging the legality of the GPL, but it wasn't working. Telcos were happy to use regulations that helped them beat off competition, while complaining about regulations in all other contexts -- and we (rightly) expected that the fCC would do nothing about net neutrality. And the BSA was releasing its bogus stats. We were already worried about the NSA abusing surveillance data and misinterpreting results, since your book club might look like a terrorist group.

People were exploring who was really behind Nigerian 419 scams. Meanwhile people were noticing that MySpace was being used by scammers... and also noticing that MySpace was going out of style. An appeals court told Apple that bloggers are journalists too and wireless networks were battling it out in court over who could claim to have the best network. Wired unleashed the word crowdsourcing on the world and people were still freaking out about how kids could possibly survive the rise of digital technology.

Fifteen Years Ago

People were, as always since the internet began basically, worried about the future of media on the internet. The RIAA was being the RIAA and suing Aimster, a somewhat unique file sharing system, that insisted it was legal (courts eventually disagreed). Speaking of file sharing online, we mocked the idea that sharing TV shows online was a real issue, because at the time bandwidth wasn't fast enough to really matter. The great age of innovation was progressing as we were shocked by the idea of mobile check in for flights (and even just automated check in kiosks, that are now standard). Speaking of mobile internet, there was too much hype about the wireless web, because back then it truly sucked. Lots of other tech stuff sucked at the time as well, and someone argued that the world needed a "geek hero" to encourage kids to get into tech (anyone still think that's true?). Meanwhile, Webvan, the poster child for dotcom excess and failure began auctioning off its assets (if I remember correctly, healthcare giant Kaiser Permanente ended up buying a bunch of them), and dot commers still coming to terms with the original dot com bubble collapse were dealing with depression.

Eighty Years Ago:

Famed mathemetician/code breaker Alan Turing submitted his landmark paper "On Computable Numbers" to be published, arguably the first paper on "computer science." Kind of amazing how far we've come in well less than a century.

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Posted on Techdirt - 28 May 2016 @ 9:00am

Awesome Stuff: Nerd Harder T-Shirt From Techdirt (Last Chance)

from the last-chance dept

Last Chance: Support Techdirt and get a "Nerd Harder." T-shirt!

Okay, sure, if you religiously read every post on Techdirt, you're already aware that we're selling a Nerd Harder T-shirt, but I know not everyone reads every post. I've already had quite a few people that I've spoken to admit they didn't know about our limited time T-Shirt sale -- which ends tomorrow -- until I mentioned it, at which point they got excited about it. People seem to clearly like the shirt, and we've sold way more than we initially expected, but if you like it too, we didn't want you to miss out, so for this week's "Awesome Stuff" post, rather than posting some other people's crowdfunding campaigns, we'll post this, which gives you a chance to not only get a really cool t-shirt, but to support Techdirt as well.
In case you missed our original post, this T-shirt is a response to the increasing number of claims we've seen lately from non-tech people assuming that technology can do anything if those smart people out in Silicon Valley just put their minds to it. We've seen the FBI claim that if we just worked harder at it, we could build backdoored encryption that doesn't undermine encryption. And then we saw the copyright industry claim that if Silicon Valley can build a self-driving car, clearly it can build a system to block infringing material without destroying fair use. Computer security expert Matt Blaze rebutted this idea beautifully once by saying it's the equivalent of "we put a man on the moon, why can't we put a man on the sun?" demonstrating the fact that non-tech people don't seem to even remotely understand the relative differences between the things they're suggesting.

Julian Sanchez coined the term "nerd harder" as a short hand for this, and we thought that while it makes for terrible policy, it's a catchy T-shirt slogan. And a nice way to support Techdirt while getting a cool T-shirt at the same time.

It's only available until tomorrow, so don't miss out.

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Posted on Techdirt - 27 May 2016 @ 3:37pm

India Moving Forward With Dangerous Approach On Expanding Patents

from the get-past-the-myths dept

As India has been revamping its patent policy, there had been some serious concerns about broadening patent subject matter eligibility to include software and business methods. Earlier this year, however, the Indian Patent Office clarified that it would not allow patenting of just straight software patents. And that's good.

But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it's clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better -- ignoring that restricting the rights of the public has a real cost.

Delving briefly into the subject of IPRs, it is a matter of principle that a balanced intellectual property (IP) regime, i.e. a model that balances rights with adequate limitations/exceptions, contributes optimally to the holistic development and growth of the nation. Limitations or exceptions are flexibilities in the law, which cut down absolute monopoly conferred by IPRs, and ensure that use and sharing of knowledge for purposes such as research, education and access to medicines are not overridden by IP rightholders’ claims. The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is the largest international agreement governing countries’ IPR regimes also promotes the use of these flexibilities to build balanced regimes. The policy does occasionally state its commitment to the TRIPS agreement and the Doha Declaration, but does not commit or spell out any new concrete steps. Thus, it fails to show any seriousness about upholding and promoting a ‘balanced’ regime – in stark comparison to the detailed and surgical manner in which it aims to raise awareness about IPRs and commercialise them.
This is unfortunate -- and it's also a reason why I've argued we need to move away from calling them "limitations and exceptions" and towards what they actually are: the public's rights. The intellectual property laws, themselves, are "limitations and exceptions" on the public's right to use these things.

Unfortunately, when you don't have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public's rights.

The other big myth is that "patents = innovation." As we've noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately "measure innovation" fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we've covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it's no longer a "pirate nation." But, of course, in the process, it's turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.

But, as Sinha notes, it appears that India got the exact wrong message from China:
It is likely that the idea to use the IPR policy as a tool for ‘IPR indoctrination’ to result in staggering IPR generation came to the Indian government from their Chinese counterparts. In 1995, China started conducting elaborate training of its officers, researchers and students to popularise a generation of IPRs and last year the country received 10 lakh patent filings – an international record. At the conference, the officials were in awe of the Chinese statistics, and they were confident of catching up in the next few years. This despite the fact that in China, the race to patent innovations has only led to a proliferation of low value innovations in high numbers. Less than 1% of China’s patents are of intermediate or high value. Thus, China despite its high patent filings shows only a weak innovative performance. Globally, there is enough evidence to show that there is no positive correlation between patent filings and cumulative innovative performance of a country.
Unfortunately, this kind of blind belief that "patents = innovation" may serve to do severe damage to both the public and actual innovation in India. There are lots of (reasonable) concerns about high prices for medicines, but it could also harm India's pharmaceutical industry, which has actually thrived on being able to produce generic drugs that compete globally. Increasing a patent regime would actually stifle that industry. One hopes that at least someone who actually understands how innovation works can get through to the Indian government before it makes a big, big mistake.

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Posted on Techdirt - 27 May 2016 @ 12:42pm

The DMCA Should Not Be An All Purpose Tool For Taking Down Content; And It's Espeically Bad For Harassment

from the so-dumb dept

Remember not too long ago when some internet dude was saying that the best way to deal with harassment on the internet was to basically create a DMCA for harassment, where people could issue takedowns? And remember how we pointed out that this would make things worse, because just as the DMCA is regularly abused to silence people, this new tool would actually be used as a tool to harass more people and silence their speech? Here's just a little example of why a DMCA-like approach is a really, really, really bad idea as a way to deal with harassment or abuse online. Business Insider has a story about an unfortunate setup where a woman who is clearly being harassed was told by Twitter that she should file a DMCA notice, since some of the harassment involved using some of her photos. Following the sending of the DMCA notice, Twitter forwarded her notice to the folks harassing her, making them somewhat gleeful since it included her full contact info.

The Business Insider story doesn't reveal who the person is, and we're not going to do so either, because having looked at the details it's not going to do anyone any good. Suffice it to say that the story is legit. It involves a "controversial" topic (that shouldn't be controversial, if you're even remotely informed) and I don't want the comments on this story to devolve into an argument about said controversial topic. Either way, this is a clear story where some people on "one side" of this issue decided they were going to harass and intimidate someone on the other side. And this wasn't just garden variety "disagreement on the internet" that someone claims is harassing. This was a dedicated plan to intimidate the person. And they were clearly happy about getting her info and planned to do more with it:

Elsewhere the same people discussed literally using the general controversy over the DMCA to create further harassment of the individual.

The person complained to Twitter about the harassment and it appears that someone from Twitter told her that since the people harassing her were using photos, she should make a DMCA complaint. This was mistake number one. The DMCA should never be used for things that aren't really about copyright issues. It's not designed for that kind of thing and Twitter deserves to be chided for one of its employees suggesting that. However, in looking at the commentary around all of this, a lot of people are angry that DMCA notices involve passing on the full notices. I saw someone complain that companies should never forward on DMCA notices because it only will be used for abuse. That's a really bad idea.

There are good policy reasons for why we should want companies to forward DMCA notices on to the person who gets their work taken down. For one, given all the bogus takedown notices we talk about, things would be a lot worse if the people who were accused of infringement never were able to find out the details of who sent the notice. That's part of the point of the DMCA, to create at least some channel of communication between the copyright holder and those accused of infringing. Obviously, in a harassment situation, things are totally different and it's why the DMCA notice-and-takedown is exactly the wrong tool for this sort of thing, and any attempt to expand it in that direction is a really, really bad idea.

Furthermore, we should want DMCA notices passed on, including to places like Lumen Database, because that's how we actually get some information about how the DMCA notice and takedown process is working -- or not working. Worrying about censoring information in notices or not passing them along is not a good move. It just highlights why the DMCA process is a bad idea in contexts like harassment.

Now, the Business Insider article does make a good point that other companies, like Automattic and Github, are much clearer to people who are submitting DMCA notices that their details will be passed on to those who they're accusing of infringement -- and point out that you can have an agent file on your behalf. That's also something that Twitter should do. But people complaining that Twitter should not forward on DMCA notices are confusing two separate issues. Twitter absolutely should forward on DMCA notices. That's important. What they shouldn't do is tell people to file DMCA notices over harassment issues.

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Posted on Techdirt - 27 May 2016 @ 11:45am

News Site About Popcorn Time App Goes To Court To Get Back Seized Domain

from the copyright-as-censorship dept

Over and over again, we're told that copyright is not about censorship, and yet time and time again we see how it is used to censor speech quite frequently. Back in March, we wrote about the somewhat horrifying bit of news that a news website that posted stories about the app Popcorn Time had been seized by Norwegian police. The "crime" according to the police was that the site -- which never hosted the app at all -- did link to some other sites where you could download Popcorn Time. This is so far removed from the actual infringement as to be crazy. Yes, some users of Popcorn Time use the software to infringe on copyright-covered works. No one doubts that. But the software itself -- like a VCR -- can also be used for legitimate purposes as well. If a user infringes, go after the user. But the software itself shouldn't be targeted (even though it is). But, then you go another step removed to sites that host the app. And then a further step removed to a news site that links to sites that link to the software that a user might use to infringe.

And the police deemed that worthy of seizing? Even though the site also had a ton of news articles that would normally be considered protected expression?

I want to repeat this just to show how crazy it is. The police in Norway didn't go after actual infringers, they went after a news site that links to sites that host an app that might be used to infringe. Oh, and they did it using an asset seizure procedure that has basically no due process prior to an entire news website disappearing. That's messed up.

Apparently, Electronic Frontier Norway (EFN -- which is unrelated but similar to the EFF here in the States) -- and the Norwegian Unix User Group (NUUG) went to court over this, but had that rejected (perhaps reasonably) for lack of standing. However, TorrentFreak is reporting that the case is being appealed... but this time with the legal owner of the site:

With the new party the groups hope to have sufficient standing to have the case heard. In their appeal there’s a strong focus on the free speech element, and they hope the court will clarify when domain seizures are appropriate.

“We feel that this is an important case that addresses the limits of free speech,” EFN’s managing director Tom Fredrik Blenning tells TorrentFreak.

NUUG leader Hans-Petter Fjeld adds that the authorities shouldn’t be allowed to seize the domain name of a news site, which writes about open source software that by itself is not infringing.

“Part of what makes us upset is that the domain name of a news site about a piece of free software that has both legal and illegal uses, has been seized without judicial scrutiny,” Fjeld says.
This use of asset seizure to take down news sites that might be distantly related to infringement is extremely troubling. It's happened in the US, including just recently returning some domains it had seized five years prior, without ever having any evidence of actual infringement associated with those news sites.

The idea that this form of blatant censorship is being used globally should be yet another warning of how copyright law is regularly abused for censorship.

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Posted on Techdirt - 27 May 2016 @ 10:38am

Star Trek Fan Film Axanar Lawyers Tell Court About JJ Abrams Claims Of Paramount Dropping Suit, Express Confusion

from the well,-this-is-awkward dept

Over the weekend, the internet blew up over the story that Paramount and CBS were going to drop their silly lawsuit over a professional looking Star Trek fan film. The news was "broken" by the producer of the next official Star Trek film, JJ Abrams, sitting alongside the director of that film, Justin Lin, at a Star Trek fan event. Lin had previously expressed support for the fan film on Twitter, and Abrams claimed that Lin urged Paramount to settle, and that "within a few weeks" there would be an announcement that the case had been settled.

Of course, between now and "within a few weeks," the case is still going on... and the folks behind the fan film, called Axanar, had to file their reply to the amended complaint. And they have. And, as per usual with these things, it goes through and rebuts various claims and then tosses in a bunch of counterclaims. Normally we'd go through and analyze the more interesting/important claims, but given that there's still a pretty good chance the whole case is going away shortly, we'll skip all that and jump to the part where Axanar's lawyers point to the JJ Abrams/Justin Lin statements and basically throw their hands in the air and say "we don't know what to do about this." After highlighting both of their comments, as well as the quote from Paramount "confirming" the settlement talks, the filing notes:

Nevertheless, despite these public comments, the present action remains pending, and Defendants are currently left with uncertainty as to how Axanar may proceed with its film to fulfill the wishes of thousands of fans who have contributed.
Given that pretty much everyone has admitted that there are settlement talks that are far along, it seems like the court should put the case on hold to see how those pan out. It's fairly common to see courts give parties extra time to settle such disputes out of court, and here's a case where that extra time clearly makes a lot of sense.

It still seems likely that the case will settle soon. I've seen some (fairly ignorant) commentary online arguing that because Axanar has filed counterclaims, the case must now move forward, but that's wrong. People are confusing the fact that the parties can settle the case outside of court with the issue of whether or not Paramount can just drop the case. From the statements everyone made, it's quite clear that they were discussing settlements, not Paramount universally backing away. A Star Trek "rumors" site claims that people at CBS are upset about the counterclaims and may continue the case even if Paramount settles (remember, Paramount and CBS co-own the various Star Trek IP). That report also claims that the two companies want the settlement to include the Axanar project being shut down -- which would seem to contradict the claims from Abrams.

While anything is possible, and the revealing of the settlement before it was actually agreed to could make things a bit messier, I find the claims about this difficult to believe. Axanar had to file its response because the case is still going and it was due. And they filed a strong response with counterclaims, because they have to do that, in case the settlement talks do fall apart for whatever reason. They can't go back to the judge and say "Hey, we filed a weak response because we thought we were all chummy now." That's not how it works. And, of course, the lawyers on the other side know this as well. The idea that the high priced lawyers at Paramount and CBS were somehow offended by this seems like a stretch. I may not agree with their views on copyright law, but I'd doubt they're so thin-skinned that some expected counterclaims will suddenly stop them from wanting to settle. Frankly, all the talk about how the counterclaims have sunk the settlement seem like wishful thinking from a group of folks who just hate the idea of Axanar.

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Posted on Techdirt - 26 May 2016 @ 3:40pm

Cities Rushing To Restrict Airbnb Are About To Discover That They're Violating Key Internet Law

from the bad-ideas dept

Fights over tech policy are going increasingly local. Most technology regulations have been federal issues. There have been a few attempts to regulate on the state level -- including Pennsylvania's ridiculous attempt to demand ISPs filter out porn in the early 2000s. But state legislators and Attorneys General eventually learned (the hard way) that federal law -- specifically CDA 230 -- prevents any laws that look to hold internet platforms liable for the actions of their users. This is why state Attorneys General hate Section 230, but they need to deal with it, because it's the law.

It's looking like various cities are now about to go through the same "education" process that the states went through in the last decade. With the rise of "local" services like Uber and Airbnb, city by city regulation is becoming a very, very big deal. And it seems that a bunch of big cities are rapidly pushing anti-Airbnb bills that almost certainly violate Section 230 and possibly other federal laws as well. In particular, San Francisco, Los Angeles and Chicago are all pushing laws to further regulate platforms for short term housing rentals (and yes, the SF effort comes just months after another shortsighted attempt to limit Airbnb failed).

The bills basically look to force people who want to use platforms like Airbnb to register, but then look to hold the platforms liable if a renter does not include the registration info in their profile. Gautam Hans does a nice job in the link above outlining why San Francisco's proposed bill -- which will be voted on shortly -- clearly would fail to survive a Section 230 challenge:

This imposition of liability clearly goes against Section 230, which states in (c)(1) that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” — meaning that, if an information content provider, typically an individual user, posts something illegal, the interactive computer service, typically a website, can’t be held liable for it. Moreover, under (e)(3), “no liability may be imposed under any State or local law that is inconsistent with this section.” States and localities can pass laws that are consistent with Section 230, but anything inconsistent with Section 230 — like the imposition of liability on a website operator for user-generated content — is unlawful. From a logistical perspective, this makes a great deal of sense. If states and cities could enact a variety of conflicting laws, the whole point of Section 230 would be undermined. As a global medium, the internet wouldn’t work if it were subject to piecemeal regulations by every state and city within the US.
Hans also points out that the Chicago proposal (which is ~50 pages!) is equally bad:
The other recent proposal, from Chicago, creates similar issues by holding platforms liable for user content. Like the San Francisco proposal, it uses fines as the leverage to require platforms to ensure that listings on a platform have been approved by the city. And, as with the San Francisco proposal, the architecture of the liability structure runs afoul of Section 230’s preemption clause. The problematic language in this legislation, Section 4-13-250, states “It shall be unlawful for any licensee … to list, or permit to be listed, on its platform any short term residential rental that the commissioner has determined is ineligible for listing”; the penalty for violations, in Section 4-13-410, is “a fine of not less than $1,500.00 nor more than $3,000.00 for each offense. Each day that a violation continues shall constitute a separate and distinct offense.” This essentially creates a strict liability regime for website operators based on third-party content: if a user uploads a non-compliant rental listing, the site operator would immediately be in violation of this provision, regardless of whether they were aware of the posting or its ineligible status. No matter what the amount the potential fine is, this imposition of liability clearly contravenes Section 230.
Hans doesn't cover the LA law, but it's just as problematic (potentially more problematic!). Like the SF and Chicago bills, the focus is on requiring registration, and then puts liability on the platforms:
Hosting Platform Requirements.

(1) Actively prevent, remove and cancel any illegal listings and bookings of short term rentals including where a listing has been offered: without a Home-Sharing registration number; by a Host who has more than one listing in the City of Los Angeles; or, for a rental unit that exceeds 90 days in a calendar year.
Yes, sure, cities are concerned about how Airbnb can impact the way cities are run -- though over and over again we've seen evidence that Airbnb can be super helpful to cities in terms of increasing tourism and opening up new ways for people to earn money. But, if cities want to target questionable practices, they should do so by targeting the actual questionable practices, not by trying to skip around Section 230 and pretending it doesn't exist. I'm sure, as with the state AGs, we may hear city officials whine about how terrible Section 230 is and how it gets in the way of them "protecting citizens" or whatever they're going to claim, but those claims are silly. Section 230 is about properly targeting liability. When you point the liability in the wrong direction -- at platforms -- you reduce innovation and chill useful services. As Hans notes:
Enforcing the laws of a city or state is an important goal, especially when those laws are designed for compliance, safety, and non-discrimination. Yet it is equally important to ensure that the internet remains an open platform for innovation and exchange, which requires ensuring that intermediaries are not held legally responsible for content they did not author. In enacting Section 230, Congress ensured that this value would be the law of the land, and it is important that cities and states abide by superseding federal law.
One would hope that the cities in question would recognize the legal problems with their own bills before they decide to move forward on any of them. Otherwise, they're just going to end up wasting a ton of taxpayer money when someone takes these to court, and the cities inevitably lose, just as the states did a few years ago.

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Posted on Techdirt - 26 May 2016 @ 2:01pm

Big Win For Fair Use: Jury Says Google's Use Of Java API's Was Fair Use... On To The Appeal

from the ain't-done-yet dept

This is somewhat surprising, but good: after a few days of deliberation, the jury in the redo of the Oracle v. Google case concerning Google's use of Java's APIs in Android has resulted in a jury verdict finding that Google's use was allowed as fair use. There's not much to unpack here beyond what we've already written about the case. The jury form was a simple question of whether or not the use was covered by fair use, with a "Yes" check box meaning "finding for Google" and a "No" check box finding for Oracle The jury checked yes.

So, a few quick thoughts:

  1. All things considered this is a good ruling in that it doesn't lead to a crazy situation that undermines the reimplementation of APIs and other structures in different software, so *phew*.
  2. This still sucks because fair use was the wrong vehicle. The APIs never should have been considered copyright-eligible in the first place, just as the judge in the original trial explained in his very detailed opinion. It's only because an excessively confused federal circuit appeals court mucked things up, that the case had to go back down and be redone over fair use.
  3. The trial itself was a weird one, because they weren't really allowed to talk about the first trial and how a very large number of people in the tech industry didn't think that APIs were covered by copyright at all. So that resulted in some weird conversations to explain why no one really thought this was infringing. They couldn't say no one thought APIs were covered by copyright, so they had to talk about "open" and "free" in ways that were slightly misleading.
  4. If anything, this may be the most important fair use case to turn on factor 2, "the nature of the copyrighted work." That's a factor that rarely is a very big deal, but without being able to (re)challenge the copyrightability, the focus was mostly on the nature of APIs and how the tech industry viewed them as free to be reused.
  5. Of course, no matter what the verdict was there would be an appeal, and that's absolutely true. Oracle will appeal. But it does make it more difficult to appeal. Oracle will have to challenge specific aspects of things, and will likely focus on the jury instructions, which it will argue unfairly biased the jury or something along those lines.
  6. The Court of Appeals of the Federal Circuit (CAFC) is still a disaster, and while I hope they don't, there's still a decent chance they'll end up siding with Oracle on appeal. Remember, CAFC is a court that normally focuses on patent laws and has a long and disgraceful history of loving to expand intellectual property and believing, incorrectly, that any kind of use is "theft."
  7. But, in the meantime, this at least lifts something of a cloud over the industry, and we can hope that (1) CAFC will get it right and if they don't (2) that the Supreme Court will fix it, rather than ignore it, next time around.
Overall, a good result of a bad process and a confused judicial system. For now.

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Posted on Techdirt - 26 May 2016 @ 12:55pm

Techdirt T-Shirt List: Nerd Harder

from the a-short-read... dept

Limited time offer: Support Techdirt and get a "Nerd Harder." T-shirt!

Normally at this time of the week, we post our "Techdirt Reading List" suggestion for a book worth reading, but this week we're suggesting something that's a little shorter to read: Our Nerd Harder T-shirt.
The T-shirt has proved more popular than expected, and it's only available for a few more days, so we thought we'd remind folks that it's available before it disappears and you regret it. Because, trust me, you'll regret not getting this T-shirt. We also added an option for women's cut T-shirts, which we didn't have when we launched.

In case you missed our original post, this T-shirt is a response to the increasing number of claims we've seen lately from non-tech people assuming that technology can do anything if those smart people out in Silicon Valley just put their minds to it. We've seen the FBI claim that if we just worked harder at it, we could build backdoored encryption that doesn't undermine encryption. And then we saw the copyright industry claim that if Silicon Valley can build a self-driving car, clearly it can build a system to block infringing material without destroying fair use. Computer security expert Matt Blaze rebutted this idea beautifully once by saying it's the equivalent of "we put a man on the moon, why can't we put a man on the sun?" demonstrating the fact that non-tech people don't seem to even remotely understand the relative differences between the things they're suggesting.

Julian Sanchez coined the term "nerd harder" as a short hand for this, and we thought that while it makes for terrible policy, it's a catchy T-shirt slogan. And a nice way to support Techdirt while getting a cool T-shirt at the same time.

It's only available until this Sunday, so don't miss out.

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Posted on Techdirt - 26 May 2016 @ 10:42am

Bankruptcy Fight May Be The Least Of Team Prenda's Concerns, As The FBI Comes Knocking

from the whoo-boy dept

If you've been following the Prenda Law saga around here for any length of time, you're aware that it's been going on for years, with sketchy copyright trolling practices that appeared to include Team Prenda uploading their own content to torrent sites, tracking who downloaded them, and then filing questionable lawsuits. That scheme fell apart after a series of judges, led by Judge Otis Wright, called out Team Prenda for committing fraud on the courts, and referred the issue to the feds, while also hitting them with a fine. That was three years ago. Other courts piled on more fines and attorneys' fees -- and more referrals to the feds. After the second such referral, Ken "Popehat" White noted that these things take time, but that something would probably happen eventually:

The wheels turn slowly, friends, but make no mistake, the wheels turn. The wheels are grinding down Team Prenda, and doing so faster and faster every month. With two different federal judges referring the matter to state bars and the U.S. Attorney's office, the probability of bar investigations and federal grand jury investigations approaches certainty.
Of course, it's been three years since then and a few things have happened. One of the three main members of Team Prenda (though, probably the least involved of the three) passed away. But the other two are both facing bar complaints over ethical violations. Paul Hansmeier also famously tried to declare bankruptcy, but appears to have lied to the court in the process. Fight Copyright Trolls just recently had an update on that case, and suffice it to say, it's hilarious. Hansmeier has not just lost his lawyer after she told the court that she could no longer represent him and be a servant of the court (i.e., heavily hinting that Hansmeier was likely asking her to lie to the court), but he's also lashed out at the trustee handling his bankruptcy for... buying a new car.

And, of course, both Hansmeier and Steele have moved on to a revamped version of the same old trolling trick, but this time using the Americans with Disabilities Act as the fulcrum, rather than copyright law.

But, it appears that all that may be small potatoes. Because, as White told us three years ago, the wheels of justice do keep turning, and he now has strong indications that not only is the FBI actively investigating Steele and Hansmeier for fraud, but that they may be just about ready to move on to the next steps:
Based on my 21 years in the federal criminal justice system, I believe the letter reflects an active, determined investigation in its later stages. The letter represents an abandonment of operational security and confidentiality; it suggests the FBI no longer sees a need for stealth. That, in turn, suggests that the FBI believes it's already developed the evidence it needs to prove the substance of its case (that Team Prenda committed wire and/or mail fraud) and is just identifying as many victims as possible for potential witnesses and to establish the amount of damages. Bear in mind that under the Federal Sentencing Guidelines, the more money wrongdoers made, the more time they're facing.
Now, to be fair, over the years we've noted many times that the DOJ often misrepresents things in criminal filings, so it will be interesting to see what charges are actually filed, assuming that the case really is ready to move. But as White also noted, "Team Prenda needs federal criminal defense attorneys, and needs them right now."

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Posted on Techdirt - 26 May 2016 @ 8:31am

Yes, A Billionaire Looking To Destroy A Media Organization Through Lawsuits Is A Big Deal Even If You Don't Like The Media Organization

from the slapp dept

So I had thought that our post yesterday about Peter Thiel allegedly financing Hulk Hogan's lawsuit against Gawker would be the only time we posted about that story, but a few things have happened that seem to merit a further post. First, Thiel has admitted to it, and insisted that he views it as "philanthropy." There are a number of claims that Thiel makes that are quite troubling. First, he admits that he didn't just back Hogan, but rather gave lawyers money to go hunting for anyone who might want to sue Gawker, directly out of spite.

He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.
Later on he admits: "It's safe to say this is not the only [case]."

This also seems ethically dubious, even if it's perfectly legal. I, frankly, don't have a huge concern over people funding others' lawsuits. While it can be abused, you can also see where it could be helpful for people who otherwise couldn't afford the legal costs. That said, specifically funding lawyers to go hunting for plaintiffs with the deliberate intent of killing a media publication? That's problematic. And that's true no matter how terrible you think Gawker is as a media property.

Incredibly, Thiel, who has given a large amount of money to the Committee to Protect Journalists, and who has claimed to be a big supporter of freedom of expression and freedom of the press, pulled a classic "I support freedom of speech, but..." line in response to questions along those lines, basically saying that he doesn't think Gawker counts.
He said he did not believe his actions were contradictory. “I refuse to believe that journalism means massive privacy violations,” he said. “I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

He continued, “It’s not like it is some sort of speaking truth to power or something going on here. The way I’ve thought about this is that Gawker has been a singularly terrible bully. In a way, if I didn’t think Gawker was unique, I wouldn’t have done any of this. If the entire media was more or less like this, this would be like trying to boil the ocean.” Mr. Thiel said he had not targeted any other media companies.
And this brings me to the second reason I'm posting more on this story: a surprising number of people (to me) keep supporting Thiel in this, and arguing that because what Gawker did was so horrible that this vendetta against them is okay. This is dangerous thinking. And I wanted to dig in on why it's so dangerous. First, there's the obvious: freedom of expression is supposed to protect the speech you dislike the most. Otherwise, we wouldn't need it. Carving it out because he thinks they're "bullies" is the kind of stuff that the First Amendment doesn't allow.

Second, the idea that this won't impact other journalism organizations is hogwash. As Felix Salmon wrote, this gives other billionaires a "dangerous blueprint" to be vindictive against any publication they dislike. Basically, he notes that publications are always extra careful about writing about notoriously litigious billionaires. But Thiel's plan is much more dubious: just have lawyers watching for anyone else who may be aggrieved, where a publication maybe wasn't quite as careful, and then mount a series of lawsuits, some perhaps more dubious than others (hold that thought...) to bury the company in legal expenses. Salmon points out that this opens up a huge number of possibilities for others:
If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. Sheldon Adelson, Donald Trump, the list goes on and on. Up until now, they’ve mostly been content suing news organizations as plaintiffs, over stories which name them. But Thiel has shown them how to go thermonuclear: bankroll other lawsuits, as many as it takes, and bankrupt the news organization that way. Very few companies have the legal wherewithal to withstand such a barrage.
Both Sheldon Adelson and Donald Trump have done vindictive SLAPP suits against news publications that have said things they didn't appreciate. And then there was the infamous case of billionaire Frank VanderSloot who waged a years long SLAPP legal campaign against Mother Jones over reporting he didn't like.

Josh Marshall, over at Talking Points Memo also does a good job of showing why this is so concerning:

Regardless of his politics, this news should disturb everyone. People talk a lot about the dominance of the 1% or in this case more like a tiny fraction of the 1%. But being able to give massive political contributions actually pales in comparison to the impact of being able to destroy a publication you don't like by combining the machinery of the courts with anonymity and unlimited funds to bleed a publication dry.

We don't have to go any further than Donald Trump to know that the incredibly rich often use frivolous litigation to intimidate critics and bludgeon enemies. Mother Jones had a lawsuit like this, clearly intended to bleed them dry through endless legal expenses. They won, though at a steep cost. But when bully plutocrats do so in their own name there is at least a self-correcting dynamic at work. A plaintiff in a libel suit opens him or herself up to reputational harm and highly intrusive legal discovery which is often enough to scare people away. (Remember, when Trump sued Tim O'Brien for publishing Trump insiders' claims that Trump was worth less than $250 million dollars, Trump was eventually forced to show O'Brien's lawyers his tax returns.) In some ways, this lines up with something I noted in my 'Brittle Grip' series of posts: growing calls from the extremely rich to not only be able to use their money without limit to shape the political process but to do so anonymously to avoid being "intimidated" or "vilified".

And even if you still think it's okay because (1) Gawker is awful or (2) "publishing a sex tape shouldn't be protected," consider, again, that Thiel has admitted that he's funding more lawsuits against Gawker. I currently know of at least four other lawsuits against Gawker -- with at least three of them using the same lawyer as Hogan used. And those lawsuits are ridiculous. We've written about both the Shiva Ayyadurai lawsuit (with the same lawyer) in which he's mad that Gawker accurately pointed out that Ayyadurai did not invent email, and the laugh out loud bad lawsuit by Chuck Johnson against Gawker. For what it's worth, Ayyadurai denies knowledge "of any behind-the-scenes financial arrangements involving my attorneys and anyone else." So perhaps Thiel is not funding his lawsuit, but with Thiel admitting to funding others, there aren't that many other choices.

Taken as a whole, this takes SLAPP (Strategic Lawsuits Against Public Participation) to entirely new levels. Flooding the zone with lawsuits, even if some have validity, with the sole admitted purpose of trying to destroy a publication you don't like has tremendous chilling effects on the press. Wired, with its tongue firmly in cheek, made this point fantastically with an article entitled How Can We Make You Happy Today, Peter Thiel? which is paragraph after paragraph of this kind of thing:

If you don’t know who Peter Thiel is, set your swoon-sockets to Stun, because Peter Thiel is the best—just an awesome, handsome, awesome guy—and we would never want to give the impression that we think otherwise. See how happy he is in this picture below? That’s how we want him to look every time he thinks about his ol’ buddies at Wired: “Great, great team. Total pros. Definitely not gonna get mad and team up with a former wrestler to secretly bankroll a lawsuit against them, and all because I didn’t like what they said about me.”

Three cheers for Peter Thiel!

Yes, it's exaggerated for comedic purposes, but the chilling effect can be very, very real. Publications that don't want to face such a vindictive campaign are going to stay silent. And that's a serious concern.

Meanwhile, Elizabeth Spiers highlights another point on all of this, focusing mainly on the fact that Thiel's response is massively out of proportion to any actual harm. Her focus is on whether or not this activity coming to light should worry entrepreneurs who work with Thiel, suggesting "I have no sense of proportionality, and might go completely apeshit on you for the slight infraction, or if godforbid we just have a simple misunderstanding."

Or, as a way of summing it up, if you think that it's okay for Thiel to do this because you think that Gawker consists of a bunch of jackasses, be afraid, because there's someone out there who thinks you're a jackass too. And just hope they're not a billionaire who has the free resources to wait for any attempt to destroy you... and then call it "philanthropy."

Hate on Gawker all you want. But this blueprint of trying to bury a company in legal fees, just out of spite, should worry everyone if you believe in freedom of the press. There's a reason that we're so concerned with typical SLAPP suits, and why we keep asking for stronger state anti-SLAPP laws and a federal anti-SLAPP law. Thiel's actions make this even more important today than ever before.

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Posted on Techdirt - 26 May 2016 @ 3:20am

EU Commission Releases Plans To More Directly Regulate Internet, Pretending It's Not Regulating The Internet

from the this-is-an-issue dept

Well, this isn't a surprise. After all, we warned you that it was likely to happen, and we helped get together folks to warn the EU Commission that this was a bad idea, but the EU Commission has always seemed dead set on a plan that they believe will hold back big successful American internet firms, while fostering support for European ones. This week they made their first move by releasing details of some of their plans. This is all part of the "Digital Single Market" plan, which, in theory, makes a ton of sense. The idea is to knock down geographical regulatory barriers on the internet, such as geoblocking. And the first part of the EU's plan is right in line with that idea and makes perfect sense. It talks about getting rid of geoblocking and also making cross-border delivery of packages easier and less expensive -- basically making e-commerce work better. That's all good.

But it's the second part that is concerning, and that's where they start talking about updating "audiovisual rights" and the regulation of "online platforms." The audiovisual rights stuff is getting most of the press attention, because of silly rules like requiring video platforms to promote more European-created content.

Currently, European TV broadcasters invest around 20% of their revenues in original content and on-demand providers less than 1%. The Commission wants TV broadcasters to continue to dedicate at least half of viewing time to European works and will oblige on-demand providers to ensure at least 20% share of European content in their catalogues.
This is a silly protectionist measure that we've seen in various countries for TV for ages and it's a joke. If you want more people viewing European content have them make better content. Forcing content on people because it's "from Europe" isn't going to make anyone want to watch it if it sucks. It will also, of course, make life more difficult for new entrants who will have to make sure that enough of their content meets this arbitrary standard.

But the much more concerning stuff involves the regulation of the internet. Now, yes, the EU Commission basically tries to bend over backwards to say that this isn't about creating new regulations for the internet. And also to claim that they're not changing the "intermediary liability" regime as laid out in the E-Commerce Directive that is a decent, if unfortunately weaker, version of US intermediary liability protections, saying that platforms aren't responsible for actions of their users. But... there's a big "but" after those claims, and it basically undermines those claims. You can read the following and see them swearing no new regulations and no changes, but the four bullet points and the details buried in them suggest something entirely different:

Today's Communication on platforms does not propose a new general law on online platforms, nor does it suggest to change the liability regime set by the e-Commerce Directive.

The aim is to make sure that platforms can be created, scale up and grow in the European Union. To reach this goal we need a functioning Digital Single Market where online platforms (both startups and established market operators) are not hampered by heavy regulation.

Online platforms are already subject to EU legislation such as consumer and data protection rules, and competition law. New initiatives will only be taken to tackle any specific problems identified and only if it is established that better enforcement of existing rules is not sufficient to address these.

In our approach to online platforms, we will be guided by the following principles:

  • a level-playing field for comparable digital services
  • responsible behaviour of online platforms to protect core values,
  • transparency and fairness for maintaining user trust and safeguarding innovation,
  • open and non-discriminatory markets in a data-driven economy.
Let's go one by one. First the "level playing field." This is a popular line, but it's kind of meaningless. What does it even mean? Some companies are going to be more successful than others, or use different business models or strategies. And those, by their very nature, create a different kind of playing field. We should be worried when the government is arguing for tilting the playing field one way or the other. For example, in earlier discussions about this, there were arguments that YouTube's model was unfair, but Spotify's model was fine. Why should the government favor one over the other?

Also, within the details, they make it clear that, despite what was said above, this is about extending new censorship regulations to platforms. "Data protection" regulations include things like "the right to be forgotten." Recognize that when reading this:
In the new e-Privacy Directive the Commission will consider, for example, extending data protection obligations currently applicable only to telecoms companies to platforms.
The next one is the big concern, because it's so... broad: "Ensuring that online platforms behave responsibly." What does that mean? Who determines what's "responsible?" Because you have the RIAA and MPAA insisting that "responsible" means vast censorship of platforms to block anything that might even remotely be infringing. Or you have the FBI insisting that "responsible" means keeping log files for a really long time and not encrypting stuff (or encrypting it with holes in it). There's a lot of wiggle room within "behaving responsibly" that should be a cause for concern.

And, indeed, it looks like the EU Commission is buying the MPAA/RIAA's view of what "behaving responsibly" means:
In the third quarter of 2016, the Commission will propose a copyright reform package aiming to achieve a fairer allocation of value generated by the online distribution of copyright-protected content by online platforms providing access to such content.
This is a fairly loud dog whistle to the RIAA. In the past few months the RIAA has been going on and on about what they're ridiculously calling the "value gap" in online platforms. In short that "value gap" is that internet companies are making lots of money... while record labels are not. To them, that's because of some sort of unfairness in the law. To most everyone else it's because the markets have shifted, and the record labels failed to adapt. And, really, if we're talking about unfair markets and "fair allocation of value" why didn't anyone complain through the 70s, 80s and 90s when the laws were so tilted that the labels basically got all of the "allocation of value" while the actual artists got stiffed?

And, of course, despite the EU Commission initially saying that there would be no impact on the intermediary liability protections in the E-Commerce Directive, they pretty quickly walk that back in the details:
In relation to the liability regime of online intermediaries established by the e-Commerce Directive, the Commission will assess:
  • the need for guidance on the liability of online platforms when putting in place voluntary measures to fight illegal content online [starting in the second half of 2016], and
  • the need for a formal notice-and-action procedures [after taking due account of the updated audiovisual media and copyright frameworks].
Got that? So now the government will be pushing for "voluntary measures" to take down content. But since it's the government looking into it, it's not so voluntary, is it? And then a "notice and action procedure" which means "notice and takedown." In the US, obviously, we have that for copyright, which has created a massive censorship regime, but we don't have such a setup for other kinds of content. The EU, generally, does have a sort of notice-and-takedown for things like defamation, and it looks like that may expand.

Oh, and then the ever amorphous censorship of "hate speech," which no one ever seems to define clearly:
In addition to revised audiovisual media rules, the Commission will further encourage coordinated EU-wide self-regulatory efforts by online platforms in tackling illegal content online. The Commission is currently discussing with IT companies on a code of conduct on combatting hate speech online.
Sure, I dislike hate speech as much as the next guy, but attempts to suppress hate speech tend to lead to straight up government censorship or as a way to attack speech governments don't like.

Next up, we've got: "Fostering trust, transparency and ensuring fairness." Yup, there's that "fairness" again. Obviously, fostering trust and transparency are actually things I'm very, very supportive of. But I'm not clear on what the government needs to be doing here, when there are often good ways for the market to do that itself. Companies that are more transparent generate more trust by themselves. And many new platforms rely on public trust to actually provide any value. So, sure, I don't want fake reviews online either, but isn't that something that platforms can handle by themselves?
The Commission will encourage industry to step up voluntary efforts, which it will help in framing, to prevent trust-diminishing practices (in particular, but not limited to, tackling fake or misleading online reviews) and monitor the implementation of the self-regulatory principles agreed on comparison websites and apps.
So, while we applaud the idea of doing away with geoblocking, as well as the general principles of fairness, trust and transparency, it's extremely frightening to think about what the government has to do in this arena at all, since almost all of the suggested ideas are wide open to abuse in the form of just attacking platforms the government or legacy industries don't like, rather than focusing on what actually creates the most value for the public.

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Posted on Techdirt - 25 May 2016 @ 3:44pm

City Of Mesa Abusing Trademark Law To Punish City Council Candidate They Don't Like

from the not-how-it-works dept

Another day, another story of abusing trademark law to try to silence speech. Paul Levy has the story of how the city of Mesa, Arizona, has sent a ridiculous cease and desist letter to Jeremy Whittaker, who is running for city council. Apparently, his opponent in the election is the preferred choice of many current city officials, suggesting that they don't really appreciate Whittaker's candidacy. But the city took things a ridiculous step too far in sending that cease and desist, arguing that Whittaker's campaign signs violate the city's trademark on its logo.

And yes, that is a version of the Mesa city logo that he's using:
But to claim this is "trademark infringement"? That's crazy.
Your use of City of Mesa trademarks in your political campaign ads, whatever your reason for including them, is trademark infringement. It implies an endorsement of your candidacy by the City of Mesa and must stop immediately. The City of Mesa does not publically endorse any candidate for Mesa City Council and has received complaints from the public and from other candidates of your improper use of the trademarks. The City hereby demands you immediately take down and replace all signs and advertisements that include City of Mesa trademarks.
Thankfully, Levy is on the case and understands all the many reasons the threat is completely bogus:

There are several reasons why this demand is wrong — Whittaker is making a purely noncommercial use of the logo which is therefore outside the scope of the Lanham Act and, indeed, protected by the First Amendment, and, in any event, nothing about his material suggests that the city is behind his campaign.  Beyond that, the logo is used to identify the city as the subject of his campaign for office, which is fair use. 

And then there is this lurking problem: section 2(b) of the Lanham Act forbids the registration of any “flag or coat of arms or other insignia of . . . any State or municipality” as a trademark.  The Trademark Office has apparently been using a narrow construction of this statutory limitation to allow agencies to register logos to identify specific government services or programs.  A couple of years ago, a federal judge in New Jersey expressed grave reservations about the very idea of a government trademark in its own seal.

The lawyer who sent the demand letter is the same one who submitted the trademark registration a few years ago, claiming that it was only for limited specific programs and services.  At the same time, the city's publicist was describing the graphic as “a new logo to replace the stylized ‘M’ that has branded the city for a generation.”    By identifying the symbol at issue as the city’s official insignia, its lawyer might have unwittingly put his client’s trademark registration at risk.

And, on top of that, Levy has sent a response letter to Mesa's lawyers raising these issues. As with pretty much any letter Levy sends, this one is worth reading. Here's part of it:
First, your effort to invoke the trademark laws to limit noncommercial political expression is barred by the Ninth Circuit's decision in Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Cir. 2005). That case involved the use of the plaintiff trademark as the domain name for an Internet "gripe site" in which Michael Kremer was criticizing the plaintiff company. The district court dismissed Bosley's claims for trademark infringement and dilution, and the court of appeals affirmed because "trademark infringement law prevents only unauthorized uses of a trademark in connection with a commercial transaction in which the trademark is being used to confuse potential consumers." ... Like Kremer, Whittaker is not using the City's various logos to sell any goods or services, but only to identify the government body whose policies and operation he hopes to improve by being elected to public office. Consequently, "[Mesa] cannot use the Lanham Act either as a shield from [Whittaker]'s criticism, or as a sword to shut [Whittaker] up." ....

Second, even if your client could show a commercial use of its marks, Whittaker has employed the marks to identify the subjects of his commentary, and is thus protected by the doctrine of nominative fair use, which has been recognized by the Ninth Circuit since New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992). Whittaker cannot meaningfully identify his candidacy without making clear that it is for the Mesa City Council that he is running, just as the artist whom Mattel sued for his parody of the Barbie doll had to use her likeness to make the point of his parody clear. See Mattel v. Walking Mountain, 353 F.3d 792 (9th Cir. 2003). The city's success in letting its logo stand in as a shorthand for the city provides as well the necessity to use the logo so that members of the public driving by his lawn signs or seeing his campaign literature understand at a glance that he is a candidate for office in their city.

Third, your letter asserts that the placement of the city's logos on campaign material "falsely encourag[es] a public belief that [Whittaker is] endorsed by the City of Mesa." We see no likelihood of confusion, and the fact (recited in your demand letter) that some "other candidates" have complained about the use of the logo does not show any likelihood of confusion about source or sponsorship. It is, indeed, regrettable that your letter shows so little confidence in the intelligence of your client's constituents. The citizens of Mesa are surely used to the fact that there are periodic elections for city offices and that, even if some candidates are supported by the incumbent officials who employ you and support Whittaker's electoral adversary (and who, indeed, are displayed on that candidate's web site wearing lapel pins bearing the city logo), candidates are not sponsored or endorsed by the city government itself.
And, of course, Levy also points out the possible problems with the trademark itself, which the city of Mesa might want to take note of:
But there is one more important reason why your client should withdraw its claims: litigating the claims could result in the cancellation of your client's trademark. In my letter so far, I have indulged the assumption that your client has consistently made, and on which your letter rests: that the three-tier logo is effectively Mesa's city insignia. But your demand letter performs a clever sleight of hand--you say that you are writing on behalf of the "City of Mesa Municipal Development Corporation," which you say will be referenced as "City of Mesa"; then you go on to talk about how the logo belongs to the City of Mesa. But it does not, and it cannot. Section 2(b) of the Lanham Act, 15 U.S.C. § 1052(b), provides that no mark may be registered if it "consists of or comprises the flag or coat of arms or other insignia of . . . any State or municipality." That is no doubt why, instead of seeking to register the three-tier logo on behalf of the City of Mesa as a city insignia, you secured Registration No. 4,073,776 as counsel for the City of Mesa Municipal Development Corporation, and only for such specialized services as construction planning, library services, utility services and the like. You made no claim that this would be a mark for political campaign purposes, and no claim that it would be a general city logo. Yet the repeated contentions by Mikkelsen and Smith, and indeed by your own letter, that this is the city's logo, are flatly inconsistent with the limited purposes for which this logo was registered. If we have to litigate this case, the record will only draw public attention to how your client is trying to expand the rights conferred by the federal registration beyond what the Lanham Act allows, and, indeed, in a manner that runs afoul of the First Amendment. "Trademark law is not properly employed to stifle discussion." Renna v. Cly. of Union, NJ, 88 F. Supp. 3d 310, 322 (D.N.J. 2014)

Indeed, I suggest you pay careful attention to the Renna decision, which discusses the reasons why First Amendment limits on govemment's right to suppress speech about itself make trademark rights inappropriate for municipal insignia, whether asserted as registered rights or unregistered rights.
Believe it or not, the letter goes on to twist the screws even more tightly. One hopes the city of Mesa and its attorneys get the message and rethink their decision.

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Posted on Techdirt - 25 May 2016 @ 11:34am

Hollywood Writers & Copyright Scholars Point Out That Piracy Fears Over Open Set Top Boxes Are Complete FUD

from the you-tell-'em dept

We've been covering for a while the ridiculous ongoing fight about the FCC's plan to open up the set top box market to actual competition. Historically, we've always seen that when closed technologies are opened up, it generally leads to much more innovation that benefits everyone. But the big cable companies are freaking out, because locked set top boxes are a huge moneymaker for them: they get customers to "rent" those cable boxes for an average of $230 per year. The industry, as a whole, takes in approximately $20 billion from set top box rentals alone. And they can only do that because the market is locked down. And the cable companies don't want to give that up.

They've been trying various strategies to kill off the FCC's plans, including the ridiculous, but frequently used, argument that opening up set top boxes will harm diversity (the opposite is actually true, but... details). But a key vector of attack on this plan has been to convince their buddies at the MPAA that open set top boxes are just another name for piracy. They've convinced some truly confused Hollywood types to freak out about more innovation in set top boxes meaning more piracy, leading to a series of similar op-ed pieces showing up basically everywhere. And those op-eds have influenced some of our clueless lawmakers too, who are now asking if open set top boxes will lead to a Popcorn Time revolution.

As we've explained over and over and over again, these concerns are complete bunk. The proposal has always made clear that cable providers will still be able to "determine the content protection systems it deems sufficient to prevent theft and misuse, and will not impede the introduction of new content protection systems." In other words, these other boxes will still be encumbered with DRM (as bad an idea as that is...).

Thankfully, now a new flurry of "response" comments have come in and people are pointing out just how wrong the "OMG piracy!" comments are concerning set top boxes. First up, some actual copyright law professors -- including Pam Samuelson, Peter Jaszi, Annemarie Bridy, Betsy Rosenblatt and Rebecca Tushnet, along with Mitch Stoltz from EFF -- have filed a response pointing out that the concerns about piracy from open set top boxes is not particularly accurate. First, they point out that it's not the FCC's job to protect a particular business model of legacy industries, and that the intent of copyright law is, once again, to benefit the public. And it seems like an odd way to do that by locking up set top boxes. They also take issue with the idea that because someone might potentially view infringing works via a set top box, it makes that an issue that (1) the FCC should even care about or (2) that is really about set top boxes at all:

Copyright does not confer a general right of commercial exploitation or “use” of a work. Thus, products and services that touch copyrighted works do not infringe copyright, and do not require a license, except to the extent that they implicate one or more of the exclusive rights. A television set is worthless without video programming to view, and a home audio system has little purpose without music. One could argue that the commercial value of these devices derives from the copyrighted works they touch. Following that reasoning, the sale of TVs and home audio equipment could be deemed a commercial exploitation of copyrighted works. But because these devices don’t ordinarily reproduce, distribute, or publicly perform works (let alone meet the rigorous standards for establishing secondary liability under copyright law), the law does not give copyright holders any right to prohibit their use and sale, dictate their design, or demand royalties.
They further point out that the set top boxes themselves are clearly not infringing anyone's copyright, no matter how much the MPAA and its friends have been repeating this myth. In some sense, the comment suggests that the MPAA is trying to roll back the famed Betamax decision that legalized the VCR (and, I should add, provided a massive new revenue stream for Hollywood).
Commenters in this rulemaking have characterized the proposed use of third-party devices or services to access pay-TV programming with terms such as “exploit[ing],”7 “repackag[ing],” “convey[ing]” copyrighted works to a third party, and creating “new uses on new platforms.” They imply that these activities constitute copyright infringement, or that the Commission should prevent these things regardless of whether they constitute infringement. These terms confuse rather than clarify the issue, because most of the activities they describe are not copyright infringement.

For example, a set-top box or other consumer device that receives TV programming in the home and displays it to the user does not inherently perform or display that programming publicly, nor does it distribute copies of the programming. While such a device is likely to make transitory, internal reproductions of programming in the process of displaying it to the user, such reproductions are not copies for purposes of the Copyright Act.

A set-top box or service might also make long-term personal copies of programming for the customer to watch later, much as a videocassette recorder does. This is firmly established as a fair use, including in systems where the recording is stored at a central facility.
They also use the infamous lawsuits against the Dish Hopper system to remind the FCC that the MPAA and its friends have, shall we say, a rather long and sad history of exaggerating claims to say that basically any new consumer friendly innovation is automatically copyright infringement if it happens to impede their chosen business model:
Such devices and service arise with some regularity, and their status is resolved either through litigation or licensing. For example, several programming providers sued Dish Networks, accusing its Hopper DVR and PrimeTime Anytime service, which skipped commercials upon playback, of causing infringement. After a court ruling that the core features of the device and service did not infringe, Dish reached settlements with most of the rightsholders in which the company agreed to limit the functionality of the service.
Meanwhile, in what might seem like a surprising source, another group calling bullshit on the MPAA is the local Hollywood writer's guild, the Writers Guild of America, West. Their full filing is totally worth reading. They basically make the exact point we've made for years: every time the MPAA fears some new innovation, it's not just wrong, but it often misses how that new innovation actually helps Hollywood in addition to the public:
It is often the case that when new technology emerges incumbent providers make alarmist predictions about guaranteed harms resulting from these innovations. While some concerns may be reasonable, the overwhelming majority of outlined harms are never realized. As CBS Chairman and CEO Les Moonves said in 2015, “All these technology initiatives that supposedly were going to hurt us have actually helped us. SVOD has helped us. DVR has helped us. The ability to go online with our own content, CBS.com, and the trailing episodes – all have helped us.” With the entertainment industry currently dominated by a handful of companies that have never been more profitable, it is clear that new technology and forms of content distribution have helped, not hurt the industry.

While new technology can create some business uncertainty, there is strong evidence that pro-consumer developments that make legal content more accessible to viewers benefits both consumers and content creators.
And then they point out that open set top boxes, combined with an open internet, are almost certainly a good thing:
Like all other entertainment industry participants, WGAW has strong incentives to protect the health of the business. WGAW members are the creators of intellectual property and their livelihoods depend on the ability of studios to license programming for initial exhibition and generate revenue in secondary markets. As such, WGAW and its members do not take concerns regarding piracy lightly. WGAW has consistently advocated for reasoned measures to protect copyright and address infringement. But WGAW members are also strong proponents of market competition, because it leads to more and better choices for consumers and more and better opportunities for writers. WGAW’s position seeks to strike a balance between these objectives, and led to our support for strong Net Neutrality rules and, ultimately, the need to reclassify broadband Internet access services under Title II of the Communications Act. In our advocacy, we were clear that Net Neutrality rules could protect Internet openness without jeopardizing content, as the rules applied only to lawful content, and outlined ways to address piracy that would not harm a free and open Internet. We believe the developments resulting from the open Internet, primarily the growth of a robust online video market, demonstrate the success of a balanced approach. The online video market generates significant revenues for media companies and residuals for writers through the licensing of television series and feature films and is projected to see upwards of 100 professional scripted series released for initial distribution on subscription online video distribution (“OVD”) services in 2016. We believe a similar balance can be achieved in the Commission’s proposed rules. Reasonable concerns can be addressed. Content can be protected while competition is promoted.
They also point out that they're totally against piracy -- in fact, they argue that limiting piracy is important to their careers -- but they don't see how these open set top boxes will actually increase piracy, especially when it will likely create tons of other benefits.
WGAW strongly agrees with the need to protect content and to limit piracy. No less than our members’ livelihoods depend on it. However, WGAW believes that a competitive navigation device market can and will protect content and, consistent with our position in Net Neutrality, we approach the proposed rules by assessing the likely benefits of competition and the risk of piracy. We find that the risks of this proposal are no greater than those presented by an open Internet, where there is strong evidence of a flourishing legal market that is very attractive to consumers.
There's a lot more good stuff in the full filing. Once again, the Writers Guild of America is one of the few voices that rises out of the Hollywood ecosystem that actually looks at the larger picture and how an open internet benefits everyone. In the past, the same organization came out against SOPA, in favor of better copyright law (as opposed to increased enforcement) and (as mentioned in the quoted portions above) in favor of net neutrality (while much of Hollywood opposed it). Kudos to the folks at the Writers Guild for taking a more accurate and holistic view of these issues, as compared to so many others.

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Posted on Techdirt - 25 May 2016 @ 10:36am

Congrats, FBI, You've Now Convinced Silicon Valley To Encrypt And Dump Log Files

from the a-victory-for-privacy dept

Soon after the original Snowden revelations, I went around talking to a bunch of startups and startup organizers, discussing whether they'd be more willing to speak out and complain about excessive government surveillance. Some certainly did, but many were cautious. A key thing that I heard over and over again was "well, our own data privacy protections... aren't that great, and we'd hate to call attention to that." Every single time I'd hear that I'd point out that this should now be their first priority: clean up your own act, now and fix your own handling of people's data, because it's an issue that's going to become increasingly important, and you're being foolish and shortsighted to ignore it.

While the Snowden revelations certainly did get some companies to improve their own practices, it looks like the FBI's decision to go after Apple over encryption, has really galvanized many in Silicon Valley to take action to truly protect their users from snooping government officials -- meaning making use of real (not backdoored) encryption and also diong other things like dumping log files more frequently.

“We have to keep as little [information] as possible so that even if the government or some other entity wanted access to it, we’d be able to say that we don’t have it,” said Gadea, founder and chief executive of Envoy. The 30-person company enables businesses to register visitors using iPads instead of handwritten visitor logs. The technology tracks who works at a firm, who visits the firm, and their contact information.
The article is full of such stories -- including one of a company called Stealth Worker that is basically helping lots of startups build in better security from the start:
Stealth Worker — a start-up funded six months ago by the prominent incubator Y-Combinator — provides contract cybersecurity experts to early-stage start-ups, which often operate on a shoestring budget. Stealth Worker chief executive Ken Baylor said that in the past month he had been approached by a half-dozen companies looking for ways to build tougher encryption and other secure technical architectures.
Because it's the Washington Post, and they feel the need to be "balanced" the article does include the one ridiculous contrarian quote from our old friend, former NSA General Counsel Stewart Baker, who basically dismisses reality as a myth in the heads of some engineers:
“This is a Silicon Valley delusion that the government wants to outlaw encryption,” Stewart A. Baker, a former National Security Agency general counsel, said in an interview. “I grant that there is a radicalized subculture of engineers that is very prone to that delusion, but it is a delusion.”
This is classic Baker: saying something that avoids the actual truth by saying something that's nominally true, but not what people are actually discussing. The claim of "outlawing encryption" is really shorthand for "outlawing effective encryption that is less vulnerable to attack." And that's absolutely what many in the government are trying to do. I mean, there's no delusion necessary when you can just read the bill put forth by Senators Dianne Feinstein and Richard Burr, that absolutely would make real encryption illegal. Sure, it says you can keep encryption, but only if it includes a way for 3rd parties to decrypt it. And the only way that's possible is to introduce serious vulnerabilities into the encryption.

The thing that Baker and many others truly don't get about Silicon Valley is that when you give techies a challenge that involves making "the best" of something, they like solving the challenge. The suggestions to backdoor encryption undermine that philosophy. They're saying that techies would need to deliberately cripple their own solutions. And the more that the FBI and clueless Senators push for such a solution, the stronger Silicon Valley will dig in and keep building better overall solutions that are less prone to government snooping.

Maybe, just maybe, if the likes of the NSA and FBI hadn't regularly abused their snooping powers, folks would be more willing to give them the benefit of the doubt. But it's a bit late for that at this point.

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