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Posted on Techdirt - 26 June 2017 @ 1:22pm

Copyright Office Realizes The DMCA Fucks With Security Research While The W3C Still Doesn't See It

from the what-a-world dept

Last week, the Copyright Office finally released a report that it had been working on for some time, looking specifically at Section 1201 of the DMCA. In case you're new around here, or have somehow missed all the times we've spoken about DMCA 1201 before, that's the "anti-circumvention" part of the DMCA. It's the part that says it's against copyright law to circumvent (or provide tools to circumvent) any kind of "technological protection measures," by which it means DRM. In short: getting around DRM or selling a tool that gets around DRM -- even if it's not for the purpose of infringing on any copyrights -- is seen as automatically infringing copyright law. This is dumb for a whole host of reasons, many of which we've explored in the past. Not only is the law dumb, it's so dumb that Congress knew that it would create a massive mess for tons of legitimate uses. So it built in an even dumber procedure to try to deal with the fact it passed a dumb law (have you noticed I have opinions on Section 1201?).

Specifically, every three years, people and companies can petition the Copyright Office/Librarian of Congress to "exempt" certain technologies or uses from 1201, saying that it is legal to circumvent the technological protection measures in that case, for the succeeding three years (yes, after three years, the original exemption expires, unless it is renewed). This triennial review process has historically been an (annoying) joke, where people basically have to beg the Copyright Office to let them, say, get around DVD DRM, in order to make documentaries. Or, famously, that time in 2012 when the Librarian of Congress refused to renew the phone unlocking exemption, magically making it illegal to unlock your phone for no clear reason at all. The whole thing is fairly described as a hot mess.

And, it really harms our own security the most.

That's because security researchers often need these exemptions the most, because they don't want to be accused of violating copyright law for doing their jobs in figuring out where there are weaknesses and vulnerabilities in various technologies. So, many of the applied for exemptions tend to come from the security community -- and sometimes they're granted, and other times they are not. A year ago, some security researchers (along with the EFF) sued the US government, arguing that 1201 violates the First Amendment, scaring off security researchers, and providing none of the usual defenses against infringement, such as fair use (which the Supreme Court has argued is a necessary First Amendment valve on copyright). That case is still waiting for a judge to rule on early motions (and it's waiting a long time).

Given all that as background, it's somewhat fascinating (and marginally surprising) to see that the Copyright Office officially agrees that the 1201 setup totally sucks for security researchers, and it would actually like Congress to fix that. The report specifically recommends expanding the existing "permanent exemption" for certain types of "security testing" to make it more applicable to a wider set of security practices:

... the Office recommends that Congress consider expanding the exemption for security testing under section 1201(j). This could include expanding the definition of security testing, easing the requirement that researchers obtain authorization, and abandoning or clarifying the exemption’s multifactor test for eligibility.

There's another section in the law for "encryption research" and, again, the Copyright Office recognizes that should be expanded:

The exemption for encryption research under section 1201(g) may benefit from similar revision, including removal of the requirement to seek authorization and clarification or removal of the multifactor test.

For what it's worth, the report (obviously remembering how it got basically mocked and burned by everyone for removing the cell phone unlocking exemption in 2012) now asks for phone unlocking to be designated a permanent exemption under the law.

These are fairly small changes being sought by the Copyright Office, but it strikes me as somewhat incredible (and very disappointing) that this small bit of enlightenment goes much further than the World Wide Web Consortium's (W3C) view on DRM and security research. As you may recall, there's this ongoing battle over DRM in HTML 5. When the W3C refused to block it outright, some members came up with a fairly straightforward no-brainer rule: all members had to agree not to go after security researchers for circumventing the DRM in HTML 5. And the W3C rejected that proposal.

In other words, the Copyright Office -- famous for its historically expansionist view of copyright, as well as its general tilt towards supporting Hollywood over everyone else -- is now recognizing that it's obvious that security researchers should have the right to circumvent DRM without violating copyright law, while the W3C -- famous for promoting an open web -- is against this. This is "up is down, night is day, cats & dogs living together" kind of stuff. Maybe someone should let the W3C know that it's position on security researchers and DRM is now more extremist than the Copyright Offices?

Either way, at the very least, Congress should follow up on this report and expand the exemptions for security research. It doesn't just help out those researchers, it helps all of us when security researchers are able to do their jobs and help to protect us all.

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Posted on Techdirt - 23 June 2017 @ 9:32am

Bob Murray's Lawsuit Against John Oliver Is Even Sillier Than We Expected

from the slappity-slapp-slapp-slapp dept

Yesterday we wrote about coal company Murray Energy and its CEO, Bob Murray, actually following through and suing John Oliver -- something that Murray's lawyers had threatened to do when Oliver and his team had reached out to Murray for a piece Oliver was doing on coal. The result of being threatened was that Oliver spent nearly half of the 24 minute segment on Murray, carefully detailing some of Murray's history and positions. If you missed it, watch it again here:

Anyway, when we wrote about the case yesterday, we noted that we had to do it based solely on the reporting of the Daily Beast, as they broke the story and -- for reasons I still don't understand -- refused to post the actual complaint. However, now we've obtained the full complaint and can dig in on how incredibly silly it is. It appears to be a quintessential SLAPP lawsuit, where the entire point is not to bring a legitimate cause of action, but to chill free speech that criticizes Bob Murray. As Ken "Popehat" White notes, it's "lawsuit as theater" and "an unapologetic political screed" -- that is, apparently designed to rile people up, rather than to present a reasonable legal argument.

Let's dig in. It certainly starts out on a high note with the rhetoric:

On June 18, 2017, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. They did so for their personal financial gain by knowingly broadcasting false, injurious, and defamatory comments to HBO's approximately 134 million paying subscribers, while also knowing that their malicious broadcast would be repeated to countless more individuals through various outlets (including other media owned by certain Defendants.

I've now watched the video four times and I fail to see anywhere that it goes after "those in West Virginia." Indeed, it's actually quite sympathetic to the plight of miners and former miners in the area who have run into problems or lost their jobs. The only people that it holds out as problematic... are the CEOs of various mining companies and the President of the United States. And even if Murray's reputation is mocked in the piece, as long as there aren't false statements of fact, presented with knowledge of their falsity or reckless disregard for the truth, it's all perfectly legal. Making Bob Murray look foolish or mean isn't illegal, as long as it's based on statements of opinion or those backed up with evidence.

But, Murray's lawyers appear to suggest that because Murray is in poor health, that somehow makes this entirely different. It's... an odd sympathy play in a lawsuit:

They did this to a man who needs a lung transplant, a man who does not expect to live to see the end of this case. They attacked him in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.

The health stuff is pure "theater" as Ken noted. The "no opportunity to defend" himself is weird, because I thought Republicans like Murray were completely 100% against a "fairness doctrine" that required equal time for political opponents (which is the right position to take). But, even beyond that, the idea that Murray had no choice but to file a lawsuit to defend himself or to set the record straight is laughable. As Oliver's report clearly showed, Murray is regularly on TV and could easily get a message onto the various TV news programs that have him on as a guest. And, either way (again) that's got absolutely nothing to do with defamation law and how it works.

The sob story continues:

Worse yet, Defendants employed techniques designed solely to harass and embarrass Plaintiffs, including Mr. Murray, a seventy-seven year old citizen in ill health and dependent on an oxygen tank for survival, who, despite the foregoing, continuously devotes his life, including by working seven days each week, to save the jobs and better the lives of the thousands of coal miners that he employs in West Virginia and elsewhere. Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray's age, health, and appearance, made light of a tragic mining incident, broadcasted false statements, and incited television and internet viewers to do harm to Mr. Murray and his companies, all before a worldwide audience--including the thousands of people that work for and do business with Mr. Murray and his companies in West Virginia. In fact, medical doctors have informed Mr. Murray that he should stop working because the stress is shortening his life. Mr. Murray must, however, continue working because of all those individuals who rely on him. But nothing has ever stressed him more than this vicious and untruthful attack.

Bravo! Quite a performance there. This seems clearly targeted towards pulling at the heartstrings of folks in West Virginia, but, again seems to have little to nothing to do with the actual law. Again, Murray's health is not an issue here -- and if this has caused him more stress than anything else in his life ever, then Mr. Murray has led an incredibly low stress life. Is he really saying that a late night British comedian on a premium channel has caused him more stress than the time that one of his mines collapsed and killed a group of his employees? If so... that's... weird. Separately, making fun of someone's age, health or appearance (and I don't recall any actual jokes about his age or health...) is, again, not defamation. It's sort of protected by the First Amendment. The only thing that could be defamation is "false statements" and notice how the lawsuit seems to be playing up everything else, rather than that?

When you start to dig into the actual meat of the lawsuit... there's almost nothing there. It complains that Oliver's staff may have contacted Murray Energy under false pretenses, saying that they "were under the false impression that Defendants would use this supplied information to accurately and responsibly broadcast the facts and circumstances regarding the topics," but that, again, makes little difference to the question of defamation. Just because a news company doesn't present your version of the events exactly as you want it presented, doesn't make it defamation. Not by any stretch of the imagination.

The lawsuit does provide plenty of additional bits of information concerning the Crandall Canyon mine collapse and how Murray reacted to it. And all of that is perhaps interesting, but again, none of it requires Oliver to portray the story in the way that Murray Energy likes. And, again, if you go back and review the actual story that Oliver did, he does not contradict any of the factual claims laid out by Murray's lawyers. Rather, he highlights the stories of miners or families of miners who were impacted by the collapse and were not happy with how Murray responded. The crux of the argument on Murray's side is "but we tried real hard." And, great. But highlighting how others felt about the effort and actions is not defamation. It's presenting other viewpoints.

The only possible "factual" point where there could be some controversy is over whether or not the mine collapsed due to an earthquake, as Murray has insisted since the day of the collapse itself. Oliver pointed to the US government report on the incident put together by the Mine Safety and Health Administration (MSHA), a part of the US Department of Labor. That report concluded: "The August 6 catastrophic accident was the result of an inadequate mine design," and, on top of it: "MSHA found no evidence that a naturally occurring earthquake caused the collapse on August 6."

In the lawsuit, Murray's evidence that this is false seems to focus on semantics and making fun of the MSHA inspectors (you know they're making fun of them because it puts "experts" in quote marks):

The Federal Mine Safety and Health Administration's report regarding the collapse (the "MSHA Report") contained multiple concessions that a sudden change in stresses due to a "slip along a joint" or "joint slip in the overburden," which is very similar to the United States Geological Survey's definition of an "earthquake" (i.e., "both sudden slip on a fault, and the resulting ground shaking and radiated seismic energy caused by the slip"), "could have been a factor in triggering the collapse" and was one of the "likely candidates" for triggering the collapse, but MSHA and its "experts" chose not to analyze the seismic data of the triggering event and instead focused on the secondary collapse, which was a disservice to the lost miners, their families and the truth.

Studies have shown that the Mine collapse was a seismic event originating in the Joe's Valley Fault Zone. More specifically, these studies indicated that the triggering event for the seismic disturbance, which was not consistent with normal mining-induced seismicity resulting in the collapse, occurred on a subsidiary fault parallel to the Joe's Valley Fault. This is a more technical manner of stating that the collapse was caused by what many would characterize as an earthquake.

So that first paragraph is nonsense. It's not "actual malice" if you have clear evidence to back up your statements, and the official MSHA report sure seems like pretty good evidence to support that Oliver and his team believed what Oliver said was true. The fact that Murray doesn't like the MSHA "experts" doesn't magically make using their report "defamation." Second, notice that all of the talk about the earthquake comes with qualifying language: "very similar to... definition of an 'earthquake'", "what many would characterize as an earthquake." Even beyond the other stuff, this further undermines any defamation claim over the one sort of "fact" the lawsuit focuses on: if there's a dispute over whether or not what happened was truly an earthquake, then choosing a side in that dispute is not defamation. It's an opinion. That's protected.

Mr. Murray and his companies warned Defendants to cease and desist from a broadcast of defamatory comments or any misguided attempt at humor regarding the tragic mine collapse and loss of life, which Plaintiffs believed would be cruel and heartless.

So, uh, earlier in the complaint, Murray's lawyers argue that they believed that when Oliver and his team reached out they were ordinary journalists, claiming that they reached out "under the guise of responsible and ethical journalism." And, yet, here they admit that that they knew that he's a comedian who regularly satirizes people and companies, thus they didn't want to see a humorous take on the situation. Also, there's no law against "misguided" humor (and, uh, many folks found the humor to be quite on target). Finally, there is nothing in defamation law about it being illegal for you to have "cruel and heartless" comedy. And, in actuality, Oliver's piece was neither cruel, nor heartless. Many would likely argue that it was incredibly sympathetic and empathetic to the plight of struggling coal miners, who are facing a radical transformation of their industry.

The complaint, once again, then hits on the idea that because Oliver's story didn't represent the collapse the way Bob Murray wanted it portrayed, that's defamation. That's... not how it works. It's not how any of this works.

In the ensuing broadcast, Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident. There was no mention of the efforts Mr. Murray personally made to save the trapped miners. Defendant Oliver did not tell his audience that Mr. Murray arrived at the Crandall Canyon Mine in Utah within four hours of the collapse. Nor did Defendant Oliver say anything about the twenty-eight straight days Mr. Murray then spent on that mountain overseeing the massive rescue efforts, and administering to the families. Nor did he mention that Mr. Murray personally led the rescue efforts when rescue workers were injured and killed in a subsequent event ten days after the initial seismic event, in fact pulling rescue workers from the debris and attending to their injuries with his own hands and administering to them.

That's nice and all... but it's totally meaningless. Not reporting those things is not defamation. Murray has every right to then put out a statement, or go on TV, or get another reporter to tell these stories. But in a lawsuit? Just because the story is about Bob Murray doesn't mean that Bob Murray gets editorial control. That's not how it works, Bob.

Then it gets even more bizarre:

Instead, presumably to boost ratings, line their pockets with profits, and advance the show's anti-coal agenda, Defendant Oliver intentionally, falsely, and outrageously conveyed that Mr. Murray has no evidence to support his statements that an earthquake caused the tragedy that took the lives of Murray Energy miners during the course of their work for the organization.

Rather than fairly characterizing the evidence that he had in his possession on the subject, Defendant Oliver instead quoted an out-of-context snippet from a single report stating that there was "no evidence that a naturally occurring earthquake caused the collapse." Because Defendant Oliver omitted any mention of the other reports he was aware of that evidence that an earthquake caused the collapse, as Mr. Murray correctly stated following the collapse, Defendant Oliver's presentation intentionally and falsely implied that there is no such evidence.

Yeah. So, about that. The above just isn't true. Watch the video again. Oliver directly says that Murray relies on other evidence to support the earthquake claim ("to this day, Murray says the evidence proves that he was correct.") Then Oliver notes (correctly and accurately) that the government report says otherwise: "that was decidedly not the conclusion of the government's investigation." So, for Murray's lawyers to argue that Oliver ignored the evidence on the other side is... simply not accurate. Oliver notes that Murray points to evidence on his side, but he then points to the government's conclusions. Yes, Oliver makes it clear he believes the government's report, but, um, it's the US government. You're not going to win a defamation lawsuit by arguing that relying on the conclusions of a federal government investigation is defamation, just because you have "other evidence" that you claim disagrees with the government's evidence.

Worse still, as discussed, Defendant Oliver's Senior News Producer, Defendant Wilson, obtained from Plaintiffs detailed information evidencing an earthquake or earthquake-like event did trigger and cause the Crandall Canyon Mine collapse.

Note the immediate caveats of an "earthquake-like event." Again, this undermines the argument that saying a government report concluded it wasn't an earthquake is somehow defamation.

They also did this despite knowing that determinations of causation are vastly complex and can take years before a reliable conclusion can be reached.

So, uh, yeah. About that. This is true, but remember, part of the joke here, from Oliver, was that Murray declared definitively in a press conference the day of the collapse that it was clearly an earthquake that caused this and not the company itself. So, if Murray's own lawyers are now admitting that this is vastly complex and "can take years," it sort of reinforces the key point that Oliver was making, that Murray himself immediately jumped to the conclusion that it was an earthquake and not his fault, when that was not at all clearly know. This filing seems to do more to undermine Murray than Oliver.

Defendants also aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Mr. Murray's handling of the Crandall Canyon Mine collapse, when upon information and belief the statements of that employee were not his own, but were instead scripted by adverse counsel in a lawsuit against Murray Energy and given to the employee to further the agenda of such counsel and their clients.

Right, so this is similar to the whole dismissing the MSHA report by calling its experts "experts." Oliver accurately reported what this relative said. Who wrote it is immaterial. If what that relative said was defamatory, then Murray could go after that relative. But there's no defamation in Oliver playing a clip of Congressional testimony. Again, that's not how it works.

There's a lot more in the lawsuit, which you can read below, but it pretty much all falls into the same issues as the parts described above. It's no surprise that, looking over the website of Murray's lawyers, they don't list defamation as a specialty, but tend to focus on personal injury. There's a lot of complaining and theatricality, but very little of substance, and nothing that I can see that comes anywhere close to defamation. And that makes this a pretty clear SLAPP suit, designed to chill the speech not just of Oliver and HBO, but of any other reporters looking to cover Bob Murray and Murray Energy. This is the nature of chilling effects created by SLAPP suits. They try to punish people for actually speaking out and sharing their opinion while scaring off others from doing the same.

Once again: this is an example of why we need much stronger anti-SLAPP laws at the state and federal level. Laws that require plaintiffs to pay up for filing bogus SLAPP suits, as a deterrent. And, again, one hopes that now that he's facing such a lawsuit (which, as I've said from personal experience is no fun at all, no matter how sure you are that you're in the right), John Oliver will become as outspoken in favor of anti-SLAPP laws as he's been about other important issues.

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Posted on Techdirt - 22 June 2017 @ 3:20am

Coal Boss Files Total SLAPP Suit Against John Oliver & HBO

from the let's-talk-anti-slapp,-john dept

This one is clearly no surprise at all, given that -- as we wrote about just a couple days ago -- Bob Murray and his company Murray Energy were threatening John Oliver with a SLAPP suit if Oliver's satirical report about the coal industry was used to "defame, harass, or otherwise injure Mr. Murray or Murray Energy." Of course, Oliver's report did no such thing... but, alas, Murray has now sued Oliver, HBO, Time Warner... and the writers of the story. The lawsuit was filed in West Virginia state court. In my original post, I suggested it might be filed in Ohio, where Murray Energy is headquartered, but it does also have operations in West Virginia as well. Either way, as with Ohio, West Virginia is a state with no anti-SLAPP law.

Unfortunately, I don't have the full lawsuit. The Daily Beast, which first wrote about the case has chosen -- for whatever reason -- not to post the document, which is pretty lame. However, having watched the John Oliver piece multiple times, I can't see how any of it comes anywhere even remotely near defamatory. It falls into a variety of clearly protected categories, including opinion, satire and rhetorical hyperbole. The idea that there were materially false and defamatory statements that were put forth knowing they were false (or with reckless disregard for the truth) is laughable. There is no way that this lawsuit succeeds -- but, as we've been pointing out -- that's not really the point of most of these kinds of lawsuits. SLAPP lawsuits are designed to create a chill on free speech, by making that speech costly. Obviously, HBO/Time Warner can afford this, and have access to great lawyers, so there's almost no chance that Murray wins the lawsuit, but that's not the point. It will still cost money and lots of time to deal with the lawsuit and that's a hassle.

Murray Energy put out a bizarre statement that does little to support the idea that Murray has an actual case here:

The false and defamatory statements in this broadcast severely and destructively impact Mr. Murray, and all of Murray Energy, particularly our Mines in the State of West Virginia, where we are the largest coal mining employer in the State, as well as coal mining itself, one of the primary foundations of that State's economy.

Murray Energy filed this lawsuit, in part, in order to protect these lives and family livelihoods from the further damage by people who do not want to see coal mined, and want all of those lives destroyed, and will stop at nothing, including lying and fabrications, to accomplish their goal.

This is... laughable if you actually watched the Oliver segment, which is clearly standing up for the workers in these mines, but pointing out how the interests of the bosses -- such as Bob Murray -- are often different than the workers, and highlights a few examples of employees of Murray Energy not appreciating the way Bob Murray ran the company and treated the employees. Similarly, disparaging coal mining itself (which the Oliver report really doesn't even do) is not, in any way, defamatory.

The Daily Beast -- while not posting the complaint -- did get Ken "Popehat" White's opinion on it:

“Overall I’d say it appears frivolous and vexatious,” he said. “Any core of merit is buried in nonsense.”

“It does arguably cite one or two statements (like the bit about earthquakes) that could possibly be defamatory, since they involve fact,” he said. “But for the most part the section describing the purportedly false statements is rambling and semi-coherent, mixing fact with opinion and insult.”

As White notes, the defendants will likely get the case removed to federal court, which should be fairly easy, as there's diversity with most or all of the defendants being in New York, not West Virginia. Of course, it also depends which federal court they remove the case to -- but in some sense, it won't matter at all for anti-SLAPP purposes, since New York (the most likely other destination) has a very weak anti-SLAPP law and it would be tough to apply it here.

So, once again, we can only hope that out of this stupid situation, John Oliver will now become a proponent of much stronger anti-SLAPP laws. If his staff is looking into that issue, I'd be happy to point them to lots and lots of useful experts and resources on anti-SLAPP laws. It's a big issue (that we're living through ourselves) that needs more attention -- the kind of attention that John Oliver is now uniquely positioned to help bring to it.

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Posted on Techdirt - 21 June 2017 @ 1:20pm

White House Plan To Reduce Drug Prices... Is To EXTEND Patents?

from the that's-not-how-it-works-at-all dept

While Congress is still doing its thing to try to make the US healthcare system an even bigger laughingstock around the world, the White House is apparently considering an executive order targeting high drug prices. Of course, it handed this power over to Joe Grogan, a (very recent) former lobbyist for a giant pharma company, Gilead, that has been at the center of some controversy over its highly priced drugs. Grogan is apparently leading this effort despite not having an ethics waiver, which means he's supposed to recuse himself from these discussions, rather than lead them. But, you know, that's not happening in the swampy, swampy waters of Washington DC. So just what would Grogan suggest as a way to lower drug prices? How about extending pharmaceutical patents? Yes. Extending.

The documents reveal behind-the-scenes discussions influenced by the pharmaceutical industry. Joe Grogan, associate director of health programs for the Office of Management and Budget (OMB), has led the group. Until March, Grogan served as a lobbyist for Gilead Sciences, the pharmaceutical company that priced its hepatitis C drugs at $1,000 per pill.

To solve the crisis of high drug prices, the group discussed strengthening the monopoly rights of pharmaceuticals overseas, ending discounts for low-income hospitals and accelerating drug approvals by the Food and Drug Administration. The White House declined to comment on the working group.

In what world does anyone with even the slightest economic knowledge think that extending/expanding monopoly powers would bring prices down rather than up? Want to know one of the reasons why drugs are so crazy expensive right now? It's because those monopoly rights have already gone way too far. If you want lower prices, you want competition in the market, not monopoly suppliers who know they're dealing with major health issues -- and the willingness of insurance companies to pay through the nose.

You can criticize all sorts of things about the way healthcare is handled in this country, or how drug prices are determined. But, it's impossible to see how anyone with a straight face could possibly claim that increasing patent rights would lead to lower prices. Of course, the argument here is effectively that by making patent powers greater overseas, the big pharma companies can milk foreigners for higher drug prices... which would make it easier for them to drop drug prices at home. Here are the details from the report:

Extending the patent life of drugs in foreign markets to “provide for protection and enforcement of intellectual property rights.” This will ensure “that American consumers do not unfairly subsidize research and development for people throughout the globe.”

Except, raise your hand if you think that drug companies would voluntarily lower drug prices in the US, just because they can now also price gouge sick people in other countries? Yeah, didn't think so. If you want to lower drug prices, the way to do it is to cut back the monopoly powers of Big Pharma so that they're actually forced to compete more. This isn't a theoretical or academic claim. Just look at the price of drugs after one goes off patent. They immediately drop. Want cheaper drugs? Ditch the patents and watch the market do its thing.

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Posted on Techdirt - 21 June 2017 @ 10:46am

How The Supreme Court's Recent Free Speech Ruling May Destroy Hollywood's Plans To Kick People Off The Internet

from the about-that... dept

Earlier this week, we wrote about the details of the Supreme Court's ruling in Packingham v. North Carolina -- the case that said a North Carolina law that barred convicted sex offenders from using social media was unconstitutional. There were some good lines in the ruling, but this may be the most important:

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to “become a town crier with a voice that resonates farther than it could from any soapbox."...

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

As we noted in our original post, I expect that to be quoted in many other cases -- and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits -- mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) -- involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we've explained, this already appears to be a twisted interpretation of 512(i), but now it appears there's a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights.

As noted by copyright professor Annemarie Bridy, this clearly could impact those other cases following this ruling:

Packingham is relevant to this conversation because it stands quite clearly for the proposition that broadly defined state-mandated limits on access to the Internet raise serious First Amendment issues. Packingham challenged the constitutionality of a North Carolina criminal statute prohibiting registered sex offenders from accessing “commercial social networking sites” on the Internet. In striking down the statute on First Amendment grounds, the Court emphasized the critical importance of the Internet in general, and social media platforms in particular, to everyday life in the “Cyber Age.” While the Court recognized a significant governmental interest in preventing use of the Internet for criminal activity, it held that North Carolina’s ban on social media access swept too broadly. Interestingly, the Court elected not to decide with precision how much of the Internet the challenged statute put off limits. It declined to say—because it didn’t think it had to—whether the statute’s prohibition reached sites like Amazon.com, Washingtonpost.com, and WebMD.com in addition to “commonly understood” social networking sites like Facebook, LinkedIn, and Twitter. The Court concluded that the statute couldn’t survive First Amendment scrutiny even if it were narrowly construed to cover only the social media platforms that everyone can agree are social media platforms. To put it another way, the statute’s prohibition was broad enough to offend the First Amendment even when narrowly construed to cover only parts of the Web.

Bridy doesn't go so far as to argue that Packingham means 512(i) is unconstitutional -- in fact, she notes that it's more limited than the North Carolina law that was struck down. But, she notes:

Packingham’s holding should serve as a reminder to lower courts interpreting section 512(i) that termination of access to the Internet implicates core First Amendment values: “While in the past there may have been difficulty in identifying the most important places (in the spatial sense) for the exchange of views, today the answer is clear. It is cyberspace.” Consequently, courts should consider it reasonable, and within the bounds of the DMCA safe harbor, for broadband providers to determine that “appropriate circumstances” for terminating a user’s access to the whole Internet for infringing copyright are very rare.

Harold Feld, from Public Knowledge, goes a bit further in his own analysis, arguing that when it comes to internet access providers, it seems clear that parts of 512(i) requiring termination, should be seen as unconstitutional, while also pointing out that to argue against this might mean Hollywood arguing that copyright infringement is somehow worse that child molestation.

Granted, Hollywood lobbyists and their wholly owned subsidiaries in Congress are capable of arguing with a straight face that copyright infringement is actually worse than child molestation and therefore the government purpose is sufficiently compelling to override all First Amendment concerns. And some judges, like the district court judge in the BMG v. Cox decision, would probably agree. (Read his opinion here to see if you agree.) But I’m doubtful that the majority of appeals court judges will agree. Whether or not one treats the majority opinion’s public forum analysis of social networks as “dicta” (which is legalese for “stuff in an opinion I don’t like so I don’t consider binding”), all 8 Supreme Court justices agreed that subscribers have a First Amendment right to access information and speak online, and that the government cannot prohibit a person from accessing content that has nothing to do with preventing repeat offenses — even when the repeat offense is child molestation, and the evidence arguably supported that child molesters were particularly prone to repetition.

Sorry, if molesting minors doesn’t justify permanently kicking you off the Internet, downloading 3 advance copies of Transformers: The Last Knight shouldn’t either. Congress cannot require ISPs to terminate subscribers accused of downloading pirating material (which is what Section 512(i) amounts to) anymore than it can criminalize accessing the Internet after being accused of downloading pirated material. Nor do I expect Big Content to prevail by arguing that getting you thrown off your ISP isn’t blocking you from accessing the Internet, because of all the amazing broadband options you have to replace your loss of service. While America boasted thousands of dial-up ISPs in 1998 when the DMCA was passed, most folks are lucky to have a choice of two landline providers capable of providing reliable, always on broadband of sufficient quality to allow me to engage in all my protected First Amendment online activity.

There is the separate question of whether or not this ruling would also kill off 512(i) as it applies to service providers on the network (e.g., Facebook, Twitter, Techdirt, etc...) rather than internet access providers, such as Comcast, AT&T, etc. Feld thinks there is an argument that the opinion could be read to block such rulings as well:

Whether Packingham makes Section 512(i)’s requirement that all social media sites and other “covered entities” have termination policies for “repeat infringers” is somewhat less clear. Taking the majority analysis as actual opinion rather than “undisciplined dicta,” then the answer is clearly yes for major social network sites and platforms including — wait for it — Youtube. It’s kind of hard to argue that the largest online video platform, whose videos include some of the most important raw footage of critical events and which has become a central location for debate, doesn’t qualify as the kind of online public forum Kennedy described. Nor does it make much sense to say access to Facebook and Twitter are protected under the First Amendment while access to Youtube isn’t.

OTOH, I’m not sure the same analysis applies to cloud storage or other services that don’t share the attributes of a general public forum. And, of course, websites or services that are set up expressly to facilitate the exchange of infringing material don’t qualify for safe harbor protection anyway, so the hypothetical Doctor Evil Sing Along Piracy Exchange is already subject to liability.

Of course, none of this should apply to the platforms making decisions themselves over removing content or users from their own platforms (for which the platforms have their own First Amendment protections). Yet, I would not be at all surprised to see someone raise this issue in court, and argue that Packingham means that major social networks (Facebook, especially, but likely Twitter and YouTube as well) have no right to bar users. I think that would be a bad result, but the language in the Packingham ruling at least makes such a ruling a lot more plausible than it was last week.

The Packingham ruling is likely to have quite a lot of impact, and as predicted yesterday, I expect it to be quoted frequently in cases involving the internet over the next few years.

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Posted on Techdirt - 20 June 2017 @ 3:34pm

Coal CEO Threatens John Oliver With A SLAPP Suit

from the not-a-good-idea dept

This past weekend on John Oliver's Last Week Tonight, he took on the issue of "coal" and some politicians' obsession with coal jobs as the only true "American" jobs. The whole segment is interesting, but obviously not the kind of thing we'd normally write up. What we do frequently write about, however, is censorious threats, often from wealthy execs, designed to try to silence people from commenting on issues regarding those doing the threatening. And, it appears that's exactly what happened with coal exec Bob Murray, the CEO of Murray Energy, when he found out that John Oliver was doing a segment that included some bits about Murray.

I recommend watching the whole thing, but the parts about Murray include a brief bit around 4:45 in the video and then a much longer section starting around 12:30 in the video, where Oliver notes:

I'm going to need to be careful here, because when we contacted Murray Energy for this piece, they sent us a letter instructing us to "cease and desist from any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy" and telling us that "failure to do so will result in immediate litigation..."

Oliver notes that this is the first cease & desist his show has received (which he agrees is incredible). Oliver also points out that Murray has, in fact, been known to follow through on these threats -- suing the NY Times, a contributor to the Huffington Post and more. Many of these lawsuits appear to be fairly classic SLAPP suits, in which the lawsuits against reporters and journalism outfits are designed to try to silence them. Thankfully, Oliver and HBO have good lawyers who clearly know Oliver's rights to talk about, criticize and satirize Murray -- and Oliver then spends the next ten or so minutes doing so (hilariously), even to the point of involving a talking squirrel (you need to watch it yourself to understand why it makes sense). He also notes this at the end:

Bob Murray, I didn't really plan for so much of this piece to be about you, but you kinda forced my hand on that one. And I know you're probably going to sue me over this. But, you know what? I stand by everything I said.

Kudos to Oliver for taking a principled stand here for free speech on an important issue. Of course, Oliver has HBO and its lawyers to back him up, but it sure would be a hell of a lot easier if we had strong anti-SLAPP laws to protect him. So, once again, this is why we need a strong federal anti-SLAPP law, not to mention better state-level anti-SLAPP laws. Bob Murray appears to be based in Ohio, which (lucky him) appears to have no anti-SLAPP law, while I believe John Oliver is in NY, which has an incredibly weak anti-SLAPP law.

Perhaps, sometime soon, John Oliver can take on the need for stronger anti-SLAPP laws.

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Posted on Techdirt - 20 June 2017 @ 11:55am

Supreme Court Says You Can't Ban People From The Internet, No Matter What They've Done

from the good-to-see dept

Going all the way back to 2002 (and many times after that), we've talked about courts struggling with whether or not it's okay to ban people from the internet after they've committed a crime. The question comes up in many different cases, but most prevalently in cases involving child predators. While courts have struggled with this issue for so long, it's only now that the Supreme Court has weighed in and said you cannot ban someone from the internet, even if they're convicted of horrific crimes -- in this case, sex crimes against a minor. The case is Packingham v. North Carolina, and the Supreme Court had to determine if it violated the First Amendment's free speech clause and the Fourteenth Amendment's due process clause, to make it a felony for convicted sex offenders to visit social media sites like Facebook and Twitter, as was the case under a North Carolina law.

In this case, Lester Packingham is a convicted sex offender for an event that happened back in 2002. In 2010, he went on Facebook to brag about getting a traffic ticket dismissed -- using his middle name as his last name. A local police officer saw the post and connected the dots to figure out that the poster "J.R. Gerard" was actually Lester Gerard Packingham and charged him with violating that NC law on using social media as a sex offender. Various state courts went back and forth with the NC Supreme Court eventually saying that the law was "constitutional in all respects." The Supreme Court of the United States, however, did not agree.

The ruling is interesting on a number of levels. It cites, pretty directly, EFF's amicus brief, noting just how important and central to our lives sites like Facebook have become.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.

Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”

The opinion, written by Justice Kennedy, notes that the internet is a vast and changing place, and notes that the court does need to proceed with caution -- but that caution must be in the direction of protecting Constitutional rights:

This case is one of the first this Court has taken to address the relationship between the First Amendmentand the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the FirstAmendment provides scant protection for access to vast networks in that medium.

And then, the opinion dives right in and says that the law is obviously a violation of the First Amendment for not being "narrowly tailored." Again, while there are a few limited exceptions to the First Amendment, they are very narrowly tailored and the Supreme Court has shown little to no interest in expanding them:

Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.” ... In other words, the law must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” ...

And this law is not, at all, narrowly tailored. Once again, SCOTUS leans heavily on EFF's amicus brief to point out how overly broad this NC law is:

It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6–9; see also Brief for Electronic Frontier Foundation 24–27; Brief for Cato Institute et al. as Amici Curiae 10–12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites “as commonly understood”—that is, websites like Facebook, LinkedIn, and Twitter....

From there, it notes that clearly a state could bar more specific and narrowly tailored actions that are not broadly targeting speech:

Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.... Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

But this law obviously goes way beyond that, and the Court is troubled by this, calling it "unprecedented in the scope of First Amendment speech it burdens."

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to “become a town crier with a voice that resonates farther than it could from any soapbox."...

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The above part is the key part of this ruling, and I fully expect it to be cited repeatedly in future cases. It's the Supreme Court declaring, quite clearly, that the ability to use the internet is vital to being a part of society today, and thus there's a fundamental First Amendment right to be able to do so.

Three Justices -- Alito, Roberts and Thomas -- concur with the overall opinion, but do take some issue with the expansive nature of Kennedy's opinion, suggesting it goes too far. In the concurrence, written by Alito, they note:

I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.... And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.

I don't see how they can read the majority opinion to say that. Kennedy's opinion makes it quite clear that such things can be restricted where it's clear that these actions are narrowly targeted at situations that "often presages a sexual crime." Either way, I get the feeling that, despite these concerns, this case will be cited in useful ways to protect free speech in the future...

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Posted on Techdirt - 20 June 2017 @ 10:45am

SLAPP Threats And The Grenfell Fire: Why We Must Stop Attacks On Free Speech

from the these-things-matter dept

You've probably heard about the horrific tragedy in the UK of the Grenfell Tower fire that killed many people. There are all sorts of awful stories related to the tragedy, but there is one that hits close to home: the use of SLAPP threats to silence residents who warned about fire dangers in the building. You see, a group of residents in the building who were concerned about safety issues, calling themselves the Grenfell Action Group have been blogging about problems in the building for years -- including this horrifyingly prescient blog post from last November, which included the following paragraphs:

It is our conviction that a serious fire in a tower block or similar high density residential property is the most likely reason that those who wield power at the KCTMO will be found out and brought to justice! The Grenfell Action Group believe that the KCTMO narrowly averted a major fire disaster at Grenfell Tower in 2013 when residents experienced a period of terrifying power surges that were subsequently found to have been caused by faulty wiring. We believe that our attempts to highlight the seriousness of this event were covered up by the KCTMO with the help of the RBKC Scrutiny Committee who refused to investigate the legitimate concerns of tenants and leaseholders.

We have blogged many times on the subject of fire safety at Grenfell Tower and we believe that these investigations will become part of damning evidence of the poor safety record of the KCTMO should a fire affect any other of their properties and cause the loss of life that we are predicting

Yikes. There are many more similar blog posts as well. And apparently, the building management -- the Kensington and Chelsea Tenant Management Organisation (KCTMO) -- decided years ago that the best way to deal with the blogging tenants... was to threaten them with a lawsuit if they kept blogging. In a letter posted to Twitter by a bunch of people (not sure who posted it first), back in 2013, the KCTMO threatened the bloggers with defamation lawsuits if they kept it up:

The image is a little blurry, but here's a transcript of the key part:

I would also ask that you remove from the blog unfounded accusations against named individuals which are your personal opinion and are likley to be considered defamatory and also likely to be perceived as harassment by the individuals concerned. I should be grateful if you could contact Vinal Sarna immediately to confirm that you have removed the offending blog and that you will refrain from making unsubstantiated accusation of criminal behaviour and personal comments about an individual's performance or actions while working on or for the Estate Management Board.

And, of course, UK libel laws are much stricter than in the US, so it's quite reasonable that these kinds of letters would have significant chilling effects on the authors of the blog, who might fear that calling more attention to problems with building management and threats to safety might, in fact, be met with a lawsuit. At least one publication is noting that at least two women who died in the fire were among those threatened with legal action for calling for better fire protection in the building, though the exact details of those threats are not entirely clear.

Either way, this hearkens back to the early days of anti-SLAPP laws in the US, where many were designed to deal with building developers threatening activists or suing them to silence them entirely. Having strong free speech protections in the UK might have helped to make tenants in the building more willing to speak out and have their voices heard, rather than threatened into silence for upsetting the management of the building to the point of having a lawyer send out threat letters.

The fight to protect free speech is about more than just people wanting to say stuff that might upset people -- it's about not being afraid to speak out when it's necessary.

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Posted on Techdirt - 19 June 2017 @ 6:26pm

Supreme Court Won't Hear Dancing Baby Case... Despite Gov't Admitting 'Serious Legal Error'

from the dancing-without-end dept

Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I'm pretty sure that's how Stephanie Lenz feels. After all, she's been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I'm pretty sure that "baby" will be graduating high school before too long. Last we'd checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit's ruling contained a "significant legal error" but said that this case was "not a suitable vehicle for correcting that mistake."

Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown.

As we've discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA -- the part that says you cannot file bogus DMCA takedowns -- is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with "mixed bag" rulings that probably won't help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that's unlikely to happen any time soon.

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Posted on Techdirt - 19 June 2017 @ 1:39pm

Copyright Troll Rightscorp Ramps Up Its Efforts To Get ISPs To Push Its Payment Demands On Users

from the intended-consequences dept

Remember Rightscorp? This is the wannabe "friendlier" copyright troll, that sends smaller bills than the traditional copyright trolls. Over the years, it's actually struggled to make any money... and has struggled with some of its more bizarre legal theories. Unfortunately, in late 2015, one of Rightscorp's partners got a big ruling against Cox, arguing that Cox violated the DMCA by not properly terminating repeat infringers (as we noted at the time, this was based on a tortured interpretation of the law). The case is still winding its way through the appeals process, but Rightscorp and its partners have continued to push forward, using the ruling in that BMG v. Cox case to pressure others. At least one other ISP has already been sued.

And, now, the company is out claiming that it's talking with "top ISPs" to get them to incorporate Rightscorp's copyright trolling efforts directly into their own infringement mitigation procedures:

“An ISP Good Corporate Citizenship Program is what we feel will drive revenue associated with our primary revenue model. This program is an attempt to garner the attention and ultimately inspire a behavior shift in any ISP that elects to embrace our suggestions to be DMCA-compliant,” the company told shareholders yesterday.

“In this program, we ask for the ISPs to forward our notices referencing the infringement and the settlement offer. We ask that ISPs take action against repeat infringers through suspensions or a redirect screen. A redirect screen will guide the infringer to our payment screen while limiting all but essential internet access.”

In other words, Rightscorp's demand and payment processes would get included directly into how the ISP notifies a user that someone has discovered the possibility of infringing activity on the account. Of course, issuing a press release saying that they're "now beginning to have some initial and very thorough discussions with a handful of the top ISPs" is... weird. You do your press releases after you come to a deal, not as you're beginning a conversation with companies who almost certainly don't want to work with you. The reality here is likely that this press release is just an attempt to signal to ISPs to be more receptive. I highly doubt it will work on most large ISPs who are slightly more sophisticated than to be duped by something as silly as this.

However, the threat of the BMG case being seen as good law is still a huge problem for those ISPs and hopefully the case will get dumped, and we can all go back to watching Rightscorp fail to make any money from its plans. Remember, in the BMG case, it came out that Rightscorp had a phone script that told people it accused of infringing that if they wanted to prove they were "innocent" they had to hand their computers over to the local police department so they could perform a search. Really. Does anyone think that a company with that sort of ethical compass should be the official partner of any ISP?

On top of that, as TorrentFreak points out in its article, for all the talk of how Rightscorp is a "friendlier" copyright troll in that it only demands $20 to $30 when it finds an infringement, that's misleading. Because, like responding to spam leading to more spam, paying Rightscorp can lead to many more demands:

In the wake of several similar reports, this week a Reddit user reported that Rightscorp asked him to pay a single $20 fine for pirating a song. After paying up, the next day the company allegedly called the user back and demanded payment for a further 200 notices.

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Posted on Techdirt - 19 June 2017 @ 11:59am

Supreme Court Reminds US Government That Hate Speech Is, In Fact, Free Speech

from the you-may-not-like-it,-but... dept

We've written a few times now about the case involving the band "The Slants" and their fight against the US Patent and Trademark Office concerning whether or not the band could trademark its own name (and, yes, this case is indirectly tied to the fight over whether or not the Washington Redskins can keep its team name trademarked). The key issue is a part of trademark law -- §1052(a) -- that says that the USPTO can deny trademarks if they "disparage... or bring into contempt or disrepute... persons, living or dead." When we first came across this case, a few years back, I argued that this clause did not violate the First Amendment. My argument, originally, was that a failure to grant a trademark was not restricting speech in any way (in fact, it was the opposite -- it was allowing more speech, since the registered trademark could no longer be used to block the speech of others).

But the issue is a tricky one, and after thinking about it more, reading much more and talking to a number of lawyers, my position shifted. And the hinge on which it shifted was this: the problem with 1052(a) was that it involved the government determining whether it "blessed" something with a trademark based on the content. And that, right there, has always been seen as a problem for the First Amendment. The government should not be making any subjective decisions based on expression -- and, yet, under 1052(a) it was. And now... the Supreme Court has agreed with that view and has struck down 15 USC 1052(a) as unconstitutional under the First Amendment, which makes this a big win for the First Amendment. And, on top of that, the Court went so far as to state upfront that a favorite claim of lots of angry people (on all sides of the political spectrum) these days -- that "hate speech" is somehow not "free speech" -- is simply untrue. The full ruling is 39 pages, which includes different Justices agreeing on some parts and not others, and writing separate concurring opinions -- but the overall point is clear. The court notes that the government, itself, is protected by the First Amendment and can take its own viewpoint on things, but this is different, because it's not content created by the government:

At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory.

Thus, there is no legitimate argument that barring the government from rejecting trademarks for disparagement violates the government's own First Amendment rights.

Then, there's the question of whether this is denying someone a benefit based on their constitutionally protected expression. The PTO pointed to a few other cases involving government subsidies, which has said the government can deny subsidies over activities it does not wish to promote. However, the Court rejects the PTO's argument here fairly simply, saying that registering a trademark is quite different than getting a subsidy.

The PTO also argues that this issue deserves less First Amendment scrutiny because -- by definition -- trademarks involve commercial speech. But the Court rejects that and makes its most forceful statement in support of free speech -- even when hateful. It's this part of the ruling that seems likely to be quoted in many free speech cases in the future concerning hateful speech:

But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Yes. Demeaning speech is hateful. Yes, hateful speech is generally a bad thing. But, no, we don't block it because the First Amendment strongly protects all such speech, out of a fear that opening up that door will allow in censorship of merely controversial ideas.

And the Supreme Court then also makes another important point, that if you allow the First Amendment to be chipped away on "commercial speech" like this, you create all sorts of other problems:

There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.

You need to protect the speech you dislike because the speech you may like may be disliked by others.

In the end, this is a good win for the First Amendment and for free speech.

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Posted on Techdirt - 16 June 2017 @ 1:37pm

California's Anti-SLAPP Law Saves Another News Publication From Bogus Lawsuit

from the good-to-see dept

In March we wrote about the unfortunate situation of two news publications in nearby Santa Clara, California in court in what appeared to be a clear SLAPP suit. The more established publication, "Santa Clara Weekly" and its publisher Miles Barber, had sued a new upstart, "Santa Clara News Online" and its publisher Robert Haugh. It seemed fairly clear that Barber didn't like the fact that Haugh had been criticizing the Weekly, and the lawsuit was just filed to make a nuisance for Haugh. It was notable that the complaint didn't cite a single blog post by Haugh or even quote him. It just paraphrased (badly) a bunch of clearly opinion statements from Haugh. Haugh got assistance from Ken "Popehat" White, who asked the court to strike the lawsuit for violating California's anti-SLAPP law.

Thankfully, the judge in that case has agreed and dumped the case, and has denied Barber's request to file an amended complaint on top of that. As of yet, there does not appear to be a full ruling on this, but congrats to Ken White and Robert Haugh for succeeding here. And, once again, this is a reminder of the need for strong anti-SLAPP laws. They help get rid of frivolous, censorious cases quickly, and they make the plaintiff pay the legal fees of the defendant (which also helps to deter other such frivolous cases).

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Posted on Techdirt - 16 June 2017 @ 10:43am

A Decade Later, Judge Says 'Jersey Boys' Use Of Unpublished Autobiography Is Fair Use

from the another-fair-use-win dept

We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published.

In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play.

In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it.

The evidence at trial indicated that before the Play debuted, the Work had no market value. Woodard, DeVito, Plaintiff, and Plaintiff’s sister had been unable to find any company interested in publishing the Work despite their various attempts to do so between 1990 and 2005, because interest in the Four Seasons was not great enough to make sales of the Work profitable. Under these circumstances, the fourth and most important Harper & Row factor “greatly favors” a defendant.

(I'll leave aside the rant I have inside me about courts claiming the 4th factor is the "most important" and save that for another day). The court goes on, and addresses the third factor as well:

To the extent the Work may be profitable today, it is almost certainly only because of the Play, which—and this is important under the third Harper & Row factor—consists of over 50% musical works (by running time) in which Plaintiff has no copyright, and the remainder of which (the non-musical script of the Play) is comprised of less than 1% of creative expression found in the Work and uses less than 1% of the Work. If anything, the Play has increased the value of the Work.

As for the "purpose and character of the work, the judge says that it weighs against fair use, but doesn't say much else about it. On the nature of the work, the court notes that in many cases, publishing an unpublished work weighs strongly against fair use -- but in this case, it's different because the reason the work was unpublished... was because it was deemed unpublishable:

A work that is only unpublished because it is unpublishable despite great efforts, however, is an atypical situation. Such a work is not unavailable to the public because of a deliberate choice by the copyright owner, but because it is not commercially viable. In this case, the unpublished nature of the Work does not overshadow its biographical nature. The Court finds that this factor weighs in favor fair use.

The judge then goes into more detail about the fact that very little of the copyrightable expression in the book actually shows up in the play. He notes that there are just a few small sections that involve copyrightable expression and where there's substantial similarity in the play (indeed, the judge notes that he went through the "painstaking" process of reviewing a DVD of the musical with the written work to find all the similar parts). The court then notes each of the areas of similarity -- many of which seem... pretty minimally related to the book, but the judge says there's at least enough there to consider if it's infringement. And in the end, finds... 145 words at issue.

In summary, at most, the jury could have found about 145 creative words to have been copied from the Work into the Play, whether as dialogue or creative descriptions of events. Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work (approximately 250 words per page times 274 pages). This factor strongly weighs in favor of a finding of fair use, at least where the “heart” of the Work was not infringed.

The court further notes that while it can be infringing to use "the heart" of the work, since this work is biographical, the "heart" is fact-based, and thus not subject to copyright protection. Finally the court notes that there's a strong argument that the play about the band is very transformative compared to an unpublished autobiography of one member:

The “transformation” in the present case is both a change of purpose and a change of character. The Play takes on a different purpose from the Work when the script (most of which was not taken from the Work) is incorporated into musical performances using material in which Plaintiff has no copyright. The purpose of the Work is primarily to inform. Tommy DeVito set out to vindicate his perspective and reveal hidden truths. Woodard’s writing skills made the Work readable, even if the material was ultimately not commercially publishable. The purpose of the Play, however, is primarily to entertain. Even if the purpose of the Play were primarily to inform, the Play takes on a different character from the Work by the incorporation of Tommy DeVito’s singular perspective into a more complete and balanced description of events based on competing perspectives of all four band members. The Play is structured around this concept, with the characters of DeVito, Gaudio, Massi, and Valli sequentially narrating the Play from their own perspectives during the respectively titled Spring, Summer, Fall, and Winter portions of the play, i.e., the figurative “four seasons” of the history of the band. And in doing so, the Play adds creative expression beyond mere republication.... The transformative nature of the use in this case is significant.

And thus, with most of the factors pushing strongly towards fair use... it is determined to be fair use.

Of course, the case is far from over. There are still other factors at play and the judge grants a new trial on those points. And, it's possible (likely?) this new ruling will first be appealed. In other words... this decade-long case likely isn't over yet.

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Posted on Techdirt - 15 June 2017 @ 3:41pm

Wyden Siren: Coats Is Answering A Different Question About Surveillance Of US Persons

from the tricky-coats dept

Remember, folks, when Senator Ron Wyden asks certain questions or suggests something nefarious is going on behind the scenes, you'd best listen. Time and time again over the past six years or so, whenever he's brought up such an issue, he's been right. Some on Twitter have now dubbed this the Wyden Siren. Pay attention when Wyden is hinting at something. So... it's time to pay attention. On Thursday, Wyden sent a letter to Dan Coats, the Director of National Intelligence, complaining that he is answering a different question than the one Wyden asked. This is, of course, a fairly typical move in political circles, but especially in the intelligence community. You word answers in very tricky ways, such that you know the public will be misled, but if pressed in the future, you can argue that your answer was not untruthful -- just semantically misleading in the extreme.

This case goes back to Wyden questioning Coats on June 7th about whether Section 702 can be used to collect purely domestic communications. There were already some people screaming "Wyden Siren" on Twitter about the question, even to the point of arguing that the question was setting up Coats the way that James Clapper was setup a few years back (in which he lied about NSA surveillance on Americans). Coats stated that such a thing would be against the law -- leading Marcy Wheeler to point out not only that the statement is incorrect, but that Coats signed a memo saying it's incorrect.

After the hearing, as Wyden's new letter to Coats points out, Coats gave Wyden an answer. But, as Wyden now points out, it was an answer to a different question:

Dear Director Coats:

At the Senate Select Committee on Intelligence's open hearing on June 7, 2017, I asked you the following question and requested a yes or no response: "Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic." You responded: "Not to my knowledge. It would be against the law." After the hearing, in response to questions from reporters, the ODNI sent the following:

"Section 702(b)(4) plainly states we 'may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.' The DNI interpreted Senator Wyden's question to ask about this provision and answered accordingly.

That was not my question. Please provide a public response to my question, as asked at the June 7, 2017, hearing.

Thank you for your attention to this important matter.

Ron Wyden

Pay attention, folks. The Wyden Siren is blaring... and that usually means more awful surveillance revelations will be coming soon...

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Posted on Techdirt - 15 June 2017 @ 11:56am

German Court Bans Google From Linking To Lumen Database Showing Takedown Notices

from the no-transparency-for-you dept

Another day, another bad copyright ruling out of Germany. What's up with Germany these days? Specifically, the court has barred Google from linking to the Lumen Database when it takes down content. This is bad on a variety of levels, but first some background: Lumen Database is what was formerly known as "Chilling Effects" -- a site to catalog DMCA and other kinds of takedowns (though most people focus on the DMCA ones). It has been tremendously useful over the years in all sorts of ways, especially concerning academic research into how the DMCA takedown process is actually working. It's often how we discover examples of takedown abuse.

However, for many years, the legacy entertainment industry has complained (and complained and complained) about the very existence of the Lumen Database. Their main (stated) reasoning is that it creates a database of links to infringing material -- though I'm sure the fact that it's been so useful in highlighting all of the abuse of the DMCA takedown process is a secondary (though less publicly admitted) reason for why they dislike it so much. The problem with this complaint is that there is literally zero evidence that Lumen Database is regularly used as a source for infringing materials. If you ask people who focus on this stuff, it's just not a site that comes up. Because it's really not particularly useful for that kind of thing. Either way, Lumen Database has made some efforts to reduce the visibility of links in its database in an attempt to mollify complainers.

But the anger ratcheted up even more once Google attempted to provide more transparency into the takedowns it receives and how it deals with them. Among the things Google has done is forward all of its takedown notices to the Lumen Database, release a special transparency report focused specifically on copyright takedowns (and letting people search through its database), and finally also then linking to the takedowns in the Lumen Database when it does remove content. The reasoning for this is completely obvious and sensible. If content is being removed, it is appropriate to learn why. The takedown notice provides those details and also helps people make sure that when the takedown notices are abused for censorship, it is more quickly discovered and fixed.

However, again, this linking from Google to Lumen Database has completely freaked out a segment of the copyright maximalist community -- as they insist that people are doing searches, failing to find what they want, clicking the little link to Lumen and then skimming the takedown letter to find the URLs where the content they want supposedly exists. Again, there is little evidence that this is happening at all, let alone on a wide scale. For what it's worth, it does appear that when takedowns target Google, many also target the original source, which takes down the original as well, meaning there's nothing at the links anyway.

Apparently, none of this much mattered to the court. It bought the silly line how this might be used for finding infringing content and ran with it. This particular case doesn't even involve copyright infringement, but a takedown demand from a company that was upset about the way the Google snippet appeared -- which already sounds pretty crazy. From the IP Kitten site linked above:

The claimant in this case is a German company. When entering the combination of the company‘s name and the words ‘suspected fraud’ (original: ‘Betrugsverdacht’) in a Google search, the results would show four snippets containing the company’s name and the words ‘suspected fraud, public prosecutor is investigating’ as news headlines. However, the company was not being investigated for fraud (§ 263 StGB - German criminal code), but for investment fraud (§ 264a StGB). While both crimes are fraud-related, the legal requirements for investment fraud are very different from regular fraud. In particular, in case of investment fraud, no deception needs to have taken place (yet) and no damage needs to have occurred.

Thus, the statement that the company was being investigated because of fraud was false. Under German law, making such a false claim about a company could infringe the company‘s right of publicity. This led to a first court case between the parties, in which Google was ordered by the regional court of Munich (case no. 25 O 3214/17) to stop showing the website(s) with the infringing text in its search results.

Again, think through the circumstances here. (1) This wasn't when you searched on the company name, but only the company name plus "suspected fraud." (2) The company was being investigated for investment fraud, but apparently a different kind of fraud than just plain old "fraud" and somehow that was a problem? (3) Anyone who did this search could then do their own research to figure out the situation. Google shouldn't be responsible for people failing to read or research the details. But, no, the court ordered Google to remove. This seems like fairly blatant censorship of information that could be quite useful to the public.

Either way, after Google lost the original case, it removed the snippet and forwarded the details to Lumen, as it does with all takedown demands. And the company at issue went back to court to complain about this fairly basic level of necessary transparency. And while Google won the first round, on appeal, the court went the other way. Back to IP Kitten:

the Higher Regional Court found that Google’s main function that needs to be considered here is not the provision of a (direct) hyperlink to the infringing statement, but rather the provision of a search function that enables users to find the (otherwise hard to find) website. By presenting its users an explanation about the deleted search result, combined with a hyperlink to the Lumen website where the deleted search result could be clicked, Google (still) enabled users to find and read the infringing statements, even after being ordered by a court to discontinue doing so. The court found that it made no difference whether one or two clicks are needed to get to the result.

The author at IP Kitten thinks this result makes sense, but I can't see how it makes any amount of sense at all. Beyond the problems discussed above, the issue here is again about a just slightly misleading claim made by a third party who has nothing to do with this lawsuit. If the company has an issue, it should be with that party, and not Google, who is just one tool to find stuff online, and which already required a convoluted search to find. The fact that, in an effort to be transparent, a user might have to jump through a bunch of additional steps just to find an article isn't a problem. Again, people should do their own research. Google shouldn't be responsible for someone failing to do that.

But, it appears, in Germany, Google now is responsible for making sure that you don't read badly written articles.

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Posted on Techdirt - 15 June 2017 @ 9:24am

The Chilling Effects Of A SLAPP Suit: My Story

from the no-fun-at-all dept

Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be.

If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event.

Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read.

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Posted on Techdirt - 14 June 2017 @ 11:56am

Dangerous Copyright Ruling In Europe Opens The Door To Widespread Censorship

from the bad-news dept

The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is "for profit" requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing.

Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU's Copyright Directive -- which note that platforms should not be responsible for infringing actions of their users -- and says that the Pirate Bay is liable for infringement by its users because it has made infringing works "available."

In today’s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.

That's... a very dangerous interpretation of the law. It undermines two very important concepts in just one sentence. The first is the basic concept of intermediary liability protections -- which say that a platform should not and cannot be held liable for the actions of its users. This should be common sense. If the users break the law, go after the users, not the tools they use. This ruling does the opposite. The second concept that is undermined here is that for infringement to actually occur, distribution (i.e., actual copying) has to happen. Instead, this ruling embraces the twisted notion that merely "making available" a work is somehow infringing. And, here, the court not only gets both of those important concepts wrong, but merges the wrongness together, such that a platform that people use to make works available is suddenly liable for the theoretical infringement of those works. That's... bizarre.

And, of course, the end result of this is that the CJEU is basically clearing the way for courts to order ISPs to block the Pirate Bay entirely (even non-infringing content on TPB). The folks over at TorrentFreak have the background details on the case, which involve attempts by the Dutch anti-piracy organization BREIN to demand that ISPs block all access to TPB. This ruling clears the way for that to happen.

There are other problematic parts of the CJEU ruling (the full text is not yet out, but this is from the press release from the CJEU explaining the ruling). Here, for example, the Court tries to justify ignoring the intermediary liability protections that should be afforded to a platform by trying to argue that TPB somehow does more, which makes it deserving of being liable:

Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

But think about that for a second. That's the kind of thing that basically any platform does. Indexing what users post on your platform is a standard thing. I mean, our search here has indexed what uses post in the comments, but that shouldn't magically make us liable for what users post in the comments. Second, the fact that they "delete obsolete or faulty torrent files and actively filter some content" shouldn't magically make them liable. In fact, this is exactly why, in the US context, we have a section of CDA 230 that explicitly says that moderating some content shouldn't make you liable for that which you left up. That's because the end result of reading the law this way will be the exact opposite of what most people want. That is, based on this ruling platforms should not moderate any content at all because the court says that doing so suddenly makes you liable for that which you did not moderate. Thus it actually actively discourages content moderation.

The other problematic part from the press release about the ruling is this:

Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders.

Again, this should not and cannot be the basis for liability. Again, within the US context, we went over this in the Viacom v. YouTube case. It's one thing to know that some infringement happens via your platform. It's another thing entirely to know which content is infringing. That's not as easy to figure out as some people insist. Again, this kind of thinking would outlaw things like the VCR. Yes, the makers of VCRs knew that some infringing content would be viewed or recorded via the devices, but the device makers were not held liable for that. This CJEU ruling seems to break with all of that.

And while representatives from The Pirate Bay are laughing off this ruling (quoted in the Torrentfreak article above), it won't be a laughing matter for many other companies who may face expanded liability because of this mixed up ruling. It also, likely, will depress entrepreneurship and innovation in the platform space in the EU. All because the legacy content industry is so infatuated with The Pirate Bay that it won't focus on improving its own offerings instead.

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Posted on Techdirt - 14 June 2017 @ 9:25am

May And Macron's Ridiculous Adventure In Censoring The Internet

from the these-are-bad-ideas,-marc dept

For some observers, struggling UK Prime Minister Theresa May and triumphant French President Emmanuel Macron may seem at somewhat opposite ends of the current political climate. But... apparently they agree on one really, really bad idea: that it's time to massively censor the internet and to blame tech companies if they don't censor enough. We've been explaining for many years why this is a bad idea, but apparently we need to do so again. First, the plan:

The prime minister and Emmanuel Macron will launch a joint campaign on Tuesday to tackle online radicalisation, a personal priority of the prime minister from her time as home secretary and a comfortable agenda for the pair to agree upon before Brexit negotiations begin next week.

In particular, the two say they intend to create a new legal liability for tech companies if they fail to remove inflammatory content, which could include penalties such as fines.

It's no surprise that May is pushing for this. She's been pushing to regulate the internet for quite some time, and it's a core part of her platform (which is a bit "weak and wobbly" as they say these days). But, Macron... well, he's been held up repeatedly as a "friend" to the tech industry, so this has to be seen as a bit of a surprise in the internet world. Of course, there were hints that he might not really be all that well versed in the way technology works when he appeared to support backdoors to encryption. This latest move just confirms an unfortunate ignorance about the technology/internet landscape.

Creating a new legal liability for companies that fail to remove inflammatory content is going to be a massive disaster in many, many ways. It will damage the internet economy in Europe. It will create massive harms to free speech. And, it won't do what they seem to think it will do: it won't stop terrorists from posting propaganda online.

First, a regime that fines companies for failing to remove "inflammatory content" will lead companies to censor broadly, out of fear that any borderline content they leave up may open them up to massive liability. This is exactly how the Great Firewall of China works. The Chinese government doesn't just say "censor bad stuff" it tells ISPs that they'll get fined if they allow bad stuff through. And thus, the ISPs over-censor to avoid leaving anything that might put them at risk online. And, when it comes to free speech, doing something "the way the Chinese do things" tends not to be the best idea.

Second, related to that, once they open up this can of worms, they may not be happy with how it turns out. It's great to say that you don't think "inflammatory content" should be allowed online, but who gets to define "inflammatory" makes a pretty big difference. As we've noted, you always want to design regulations as if the people you trust the least are in power. This is not to say that May or Macron themselves would do this, but would you put it past some politicians in power to argue that online content from political opponents is too "inflammatory" and thus must be removed? What about if the press reveals corruption? That could be considered "inflammatory" as well.

Third, one person's "inflammatory content" is another's "useful evidence." We see this all the time in other censorship cases. I've written before about how YouTube was pressured to take down inflammatory "terrorist videos" in the past, and ended up taking down the account of a human rights group documenting atrocities in Syria. It's easy to say "take down terrorist content!" but it's not always easy to recognize what's terrorist propaganda versus what's people documenting the horrors that the terrorists are committing.

Fourth, time and time again, we've seen the intelligence community come out and argue against this kind of censorship, noting that terrorists posting inflammatory content online is a really useful way to figure out what they're up to. Demanding that platforms take down these useful sources of open source intelligence will actually harm the intelligence community's ability to monitor and stop plans of attack.

Fifth, this move will almost certainly be used by autocratic and dictatorial regimes to justify their own widespread crackdown on free speech. And, sure, they might do that already, but removing the moral high ground can be deeply problematic in diplomatic situations. How can UK or French diplomats push for more freedom of expression in, say, China or Iran, if they're actively putting this in place back home. Sure, you can say that they're different, but the officials from those countries will argue it's the exact same thing: you're censoring the internet to "protect" people from "dangerous content." Well, they'll argue, that's the same thing that we do -- it's just that we have different threats we need to protect against.

Sixth, this will inevitably be bad for innovation and the economy in both countries. Time and time again, we've seen that leaving internet platforms free from liability for the actions of their users is what has helped those companies develop, provide useful services, employ lots of people and generally help create new economic opportunities. With this plan, sure, Google and Facebook can likely figure out some way to censor some content -- and can probably stand the risk of some liability. But pretty much every other smaller platform? Good luck. If I were running a platform company in either country, I'd be looking to move elsewhere, because the cost of complying and the risk of failing to take down content would simply be too much.

Seventh, and finally, it won't work. The "problem" is not that this content exists. The problem is that lots of people out there are susceptible to such content and are interested and/or swayed by it. That's a much more fundamental problem, and censoring such content doesn't do much good. Instead, it tends to only rally up those who were already susceptible to it. They see that the powers-that-be -- who they already don't trust -- find this content "too dangerous" and that draws them in even closer to it. And of course that content will find many other places to live online.

Censoring "bad" content always seems like an easy solution if you haven't actually thought through the issues. It's not a surprise that May hasn't -- but we had hopes that perhaps Macron wouldn't be swayed by the same weak arguments.

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Posted on Techdirt - 13 June 2017 @ 11:57am

Should Tumblr Be Forced To Reveal 500 People Who Reblogged A Sex Tape?

from the bad-cases-make-bad-law dept

What were we just saying about how it's important to defend Section 230 of the CDA even when it's hard? Well, here's a hard case in New York City where the situation is very unfortunate. It appears that a woman discovered that an old sex tape of hers had surfaced online from 10 years earlier when she was 17. Someone had posted it to Tumblr, where over 1,000 people apparently viewed it -- and somewhere around 500 "reblogged" it or commented on it in some manner. This is, undoubtedly, traumatic for the woman. She appears to believe that "an angry ex" posted it to Tumblr originally, which would make this a classic "revenge porn" situation.

But... rather than go after that ex, her lawyer is going after everyone who reblogged it on Tumblr and somehow got a judge to agree to force Tumblr to cough up identifying information on all of them. So let's be clear: this is clearly a horrifying story and an awful thing for the woman to live through. And, on top of that, the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life.

But... there are all sorts of legal questions here that should raise concerns. First up: Section 230. That should have kept Tumblr from being liable if it fails to hand over this info, as it's not supposed to be held liable for the actions of its users. And that's even -- as noted by Scott Greenfield -- after Tumblr failed to show up in court and the judge gave the plaintiff a default ruling. Second issue: protecting anonymity online. As we've detailed many times before, and as the Supreme Court has stated, the right to speak anonymously is also protected by the First Amendment. There are standards for revealing identifying information on anonymous speech, but it requires those in court clear a pretty high bar in proving why it's necessary to strip that right of anonymity. It does not appear that any such high bar was met in this case. Third issue: on Tumblr, "reblogging" something is basically a click of a button and is often the functional equivalent of a "retweet" for those more familiar with Twitter. That is, it does not signal endorsement -- but really just a way of marking something that you saw.

So, again, this is one of those cases where it certainly feels very difficult to defend the other side here. I have nothing good to say about the people who watched or reblogged the video. But getting Tumblr to reveal their identities so that she can proceed to sue them is a bad idea fraught with all sorts of problems.

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Posted on Techdirt - 12 June 2017 @ 7:41pm

EU Copyright Proposal: Not Good, But Not As Blatantly Terrible As It Could Have Been

from the yes,-but...-how-about-doing-it-right? dept

We recently warned that there were efforts underway to make the EU's copyright reform proposal even more draconian and ridiculous. Thankfully, the "compromise," which wasn't a compromise at all and would have made things much worse, was rejected by the Internal Market and Consumer Protection (IMCO) committee, but there was still plenty of bad stuff to be concerned about.

The mandatory filtering (i.e., mandatory censorship) regime for internet platforms was rejected. That's a good thing. But, on the flip side, the so-called "link tax" requiring payments from those who link to and aggregate news to news publishers has moved forward. Two other small bits of good news were also included: the "freedom of panorama" allowing people to photograph buildings and sculptures without violating someone's copyright and also a "remix right" that will protect the public from doing basic remixing of copyright-covered works. There are still concerns about the "text and data mining" rules which limit what content can be acquired.

So, basically, it's a mixed bag. Some, of course, will argue that any "compromise" will involve some good and some bad, but that assumes that we need a compromise here. Why not aim for creating a policy that's actually better overall, rather than a "compromise" solution? Europe has the chance to lead the way, but appears to have little interest in doing so. Either way, there's still more to go in this process, and other committees to approve things, so the policy still has a long way to go. Hopefully, by the end it pushes more and more to being true copyright reform, rather than just "propping up old industries" reform.

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